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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. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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