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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. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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