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Justices reverse rule of law going back to Civil War era

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After requiring for nearly 150 years that a defendant charged with murder or treason be required to prove he or she is entitled to bail, a divided Indiana Supreme Court ruled it now falls upon the state to show that “the proof is evident or the presumption strong” that the defendant is guilty and not entitled to bail.

In making the about-face Tuesday in Loren Hamilton Fry v. State of Indiana, 09S00-1205-CR-361, the majority on the high court also affirmed the trial court’s finding that Indiana Code 35-33-8-2(b), which says a person charged with murder has the burden of proof that he should be admitted to bail, is unconstitutional.

Justice Steven David wrote for the majority, which included Chief Justice Dickson and Justices Mark Massa and Loretta Rush. The case stems from Loren Fry’s challenge to the denial of bail. Fry is charged with murder in Cass County and sought bail, claiming the state’s evidence against him was circumstantial. He also sought a declaration that I.C. 35-33-8-2(b), which places on the defendant charged with murder the burden of proving why he should be admitted to bail, is unconstitutional.

The right to bail is also outlined in Article 1, Section 17 of the Indiana Constitution, which says murder or treason are not bailable when the proof is evident or the presumption strong. The section does not say who bears the burden of proof.

David pointed out that the burden on the defendant has been in place since a case from 1866, and the caselaw supporting it involved people charged under grand jury investigations and habeas corpus cases. The majority decided that it is fair that the party seeking to apply the exception to the right to bail – the state – should be the one required to prove it.

They rejected the state’s argument that the process of requiring the defendant to prove bail should continue because “that’s the way we’ve always done it” as a poor excuse for continuing to do something wrong.

“By placing the burden on the defendant accused of murder or treason in a bail proceeding, we are in effect requiring him, while hampered by incarceration, to disprove the State’s case pre-trial in order to earn the right to be unhampered by incarceration as he prepares to disprove the State’s case at trial. There is no valid justification for such a backwards process,” David wrote.

The opinion also outlines what is contemplated by the burden assigned to the state as to when the proof is evident or the presumption strong. David also cautioned that the opinion shouldn’t be construed to modify – either enhance or diminish – the due process protections that have always been required at bail hearings. The high court affirmed the denial of bail for Fry because the trial court directed the state to proceed first and present its evidence to show that the proof was evident or the presumption strong.

Dickson wrote a concurring opinion in which he says he found determinative the actual language of the Right to Bail Clause of the Indiana Constitution.

“I am convinced that the standard established today represents a proper understanding and application of the Indiana Constitution's Right to Bail Clause, and I thus concur,” he wrote, and Rush joined.

Justice Mark Massa concurred in result regarding the decision to deny Fry bail, but dissented on the majority’s holding that I.C. 35-33-8-2(b) is unconstitutional. He noted he agreed with and joined Justice Robert Rucker’s dissent, but wrote separately to reaffirm and support the high court’s past precedent and longstanding adherence to “an originalist interpretation of our state constitution.”

Rucker concurred with Massa’s dissent, and in his dissent wrote, “In one fell swoop, today the Court overrules nearly 150 years of precedent and declares a 30-year-old statute unconstitutional. Because I am not prepared to go that far, I respectfully dissent.”

He believed the court didn’t need to address the constitutional issue at all.

 

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  • Corrections,
    My mistakes are, disagreement, the word quit should preceed freeloading and cases of justice, should be cases of injustice.
  • Conflict,
    Yes, conflict, there is so much conflict and dis agreement among the justices of the Indiana supreme court, maybe the should find another line of work. Maybe they should just find work and freeloading off the taxpayers. Of course requiring a suspect to prove he is entitled to bail, is unconstitutional. It is real enlightning to know that it only took the court 150 years to correct this mistake, which assuredly was the cause of many cases of justice. I don't even want to think about how many were put to death, during this time!
  • Links are broken
    Lately, I have noticed your links to cases do not work. The link to your lead story does not work today.

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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