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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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