Justices reverse rule of law going back to Civil War era

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.