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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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