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Gingerich trial stirs juvenile advocates

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Paul Henry Gingerich was 12 when Colt Lundy, 15, opened and closed the blinds inside his house in Cromwell, Ind., signaling the younger boy. Boosted by another 12-year-old, Gingerich climbed in through the window.

Lundy had a plan for the three boys to run away to Arizona, where his biological father lived. But first, he had to kill his stepfather, Phillip Danner. Gingerich later told authorities that he had hoped to persuade Lundy not to carry out his plan, according to court documents. But events quickly unfolded that April evening in 2010 that Gingerich later described as seeming “not real.”

gingerich-1col.jpg Paul Henry Gingerich, now 14, is appealing his 25-year sentence after he pleaded guilty to conspiracy to commit murder. (Photo submitted)

Lundy slipped a 40-caliber Glock semiautomatic pistol into Gingerich’s hand. As Lundy trained his handgun on Danner as the man entered a doorway, Gingerich’s small hand rose likewise. Lundy fired. Gingerich says he closed his eyes and pulled the trigger. Danner was killed.

With Lundy behind the wheel of Danner’s car later that evening, he entered “Arizona” in a GPS and headed west. The boys were arrested after they stopped at a store in Peru, Ill., and a police officer grew suspicious about three children out in the middle of the night.

Gingerich, who had no juvenile criminal history, and Lundy were waived from juvenile court and sentenced by Kosciusko Circuit Judge Rex Reed to serve 25 years in prison as adults after they pleaded guilty to conspiracy to commit murder. Gingerich is believed to be the youngest person in Indiana sentenced as an adult. His appeal will be heard Oct. 30.

“I am very, very committed to this kid. He’s a good boy,” said appellate defense attorney Monica Foster, who argues that the trial court failed to determine Gingerich’s competency and denied him due process by rejecting his attorney’s pleas for a continuance after just four days to prepare for a hearing on whether Gingerich should be waived from juvenile to adult court. Foster argues that juvenile and trial court errors were so great that Gingerich’s plea agreement and conviction should be vacated.

Gingerich’s case has rallied those who question the merits of adult penalties for youthful offenders. Indiana Code 31-30-3-4, revised in 1997, allows that anyone over age 10 may be waived to adult court on a charge that would be murder if committed by an adult. That’s among the youngest in the nation, said Bill Glick, executive director of the Indiana Juvenile Justice Task Force Inc.

gingerich“It’s really completely inappropriate,” Glick said. “Especially given what we now know about adolescent brain development and youth brain development.”

But prosecutors argue that Gingerich waived his right to appeal when his parents, Nicole and Paul Gingerich, consented to a plea agreement. “The waivers signed by the defendant and his parents were clear and unambiguous,” the state argues in court pleadings. “Enforcing the plea agreement entered into by a minor with the assistance of his parents and his lawyers is sound public policy. The defendant waived the right to challenge his conviction and to raise claims of legal and procedural error by pleading guilty.”

Gingerich’s parents signed a plea agreement after the state reduced the adult murder charge to conspiracy to commit murder, cutting the sentencing range by 20 years. “That he was looking down the barrel of a 45- to 65-year sentence must have weighed heavily on his and his parents’ thought processes,” the defense says on appeal. “A 12-year-old boy really has no meaningful ‘choice’ in this situation.”

Reed, the Kosciusko judge, said in court that the plea was sufficient to balance Gingerich’s age with the nature of the crime. “I have tried to explain that I believe the opportunity provided by the state of Indiana to go from a murder charge to a conspiracy to commit murder charge … offsets any aggravators or mitigators,” Reed said, according to court transcripts.

Before accepting the guilty plea, Reed rejected a defense request to put Gingerich’s case back in juvenile court. “I just don’t think I’ve got the discretion to say, ‘I don’t like this kind of a case, so I’m going to send it back,’” he said in court. Reed did not return telephone messages seeking comment.

Reed sentenced Gingerich to serve time at Wabash Valley Correctional Facility, which holds more than 2,000 adult felons in minimum and maximum security. Gingerich was 5-feet, 2-inches tall and weighed about 80 pounds at the time of his sentencing, and the Indiana Department of Correction instead placed Gingerich in the Pendleton Juvenile Correctional Facility.

Though Gingerich would have been sent to the youth incarcerated as adults unit at Wabash Valley, DOC spokesman Doug Garrison said there were a number of practical reasons not to place him there. “This kid would have been by far the youngest person over there, he’s very small in stature, and he’s better off for the time being with people closer to his own age,” Garrison said.

Garrison said there are 56 youths presently housed at the youth incarcerated as adults unit at Wabash Valley. According to DOC, 98 juveniles between age 15 and 17 have been sentenced as adults since 2010.

The case has generated several amicus briefs requesting Gingerich’s conviction be vacated. Michael Jenuwine of the Notre Dame Legal Aid Clinic filed a brief on behalf of Children’s Law Center, Inc., the National Juvenile Defender Center and Campaign for Youth Justice. He wrote that three U.S. Supreme Court decisions since 2005 “carved out separate jurisprudence with respect to children, differentiating them from adults based on their lessened culpability and greater amenability to rehabilitation.”

Another friend-of-the-court brief suggests that the process in Gingerich’s case moved far too fast, and that the defense attorney’s request for a continuance should have been granted. The Marion County Public Defender Agency said the four days Gingerich’s attorney had to prepare for his waiver hearing contrasted to the three months it is typically granted to investigate and prepare by gathering school and medical records and interviewing friends, family members and others.

The amount of time Gingerich’s attorney had to prepare for the waiver hearing interests Karen Grau, too. Grau is president and executive producer of Indianapolis-based documentary filmmakers Calamari Productions, which specializes in juvenile justice issues. She’s directed coverage of Gingerich’s and Lundy’s cases for about two years, including MSNBC’s “Young Kids, Hard Time.”

“The fact that Paul was so young when he was sentenced and the legal process was so fast,” Grau said, “that definitely warrants public exploration. How is that the case? Why is that the case?”

Grau and at least one other international documentary filmmaker have asked the COA for permission to record oral arguments in Gingerich’s appeal.

“The way Kosciusko County handled this from beginning to end was awful,” said Dan Dailey, who runs The Redemption Project. The nonprofit hosts a website – www.redemptionforkids.org – that raises money for Gingerich and other young offenders sentenced as adults.

“Paul is a Mr. Fix-It. He entered that house intending to de-escalate the situation and never really believed it was going to happen,” Dailey said. “His performance in prison reinforces that.” He said Gingerich is among the best students at Pendleton and is on the student council selected by facility staff.

Dailey said evidence about Gingerich’s character and more never got a day in court. He said Gingerich’s case remains rife with unanswered questions, particularly about motive. “The police never really figured out what happened,” he said. “The truth has never really come out.”•
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  • let's hope justice prevails
    Although this kid committed a terrible act surely the justice system will prevail and reverse the error of its ways. This would never happen in Australia where I come from. I pray for Paul Henry and hope his young Life is returned to him at 21.

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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