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Judges focus on juvenile due process in Gingerich murder conspiracy appeal

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Court of Appeals judges on Tuesday focused their questions on whether a 12-year-old waived to adult court in a 2010 murder had due process when his attorneys had just five days to prepare for a waiver hearing in juvenile court in Kosciusko County.

A panel heard oral arguments in Paul Gingerich v. State of Indiana, 43A05-1101-CR-27, in which Paul Gingerich pleaded guilty to conspiracy to commit murder and was sentenced to serve 25 years in prison as an adult. He is believed to be the youngest person in Indiana sentenced as an adult. A 15-year-old co-defendant, Colt Lundy, received the same sentence in the killing of Lundy’s stepfather, Phillip Danner, in Lundy’s home in Cromwell. Lundy has not appealed his conviction.

Presiding Judge John Baker and judges Elaine Brown and James Kirsch grilled deputy attorney general Angela Sanchez about the period of time that Gingerich’s defenders were allowed to prepare for a waiver hearing from juvenile court and the court’s denial of requests for continuances.

“Are you confident this is what other trial judges should be doing?” Kirsch asked Sanchez. She replied that the waiver process in question might not represent “best practices,” but that Gingerich’s attorneys still would bear the burden of proving that even if the judge erred, that Gingerich was prejudiced by the mistake.

Sanchez urged the court to rely on the plea that Gingerich entered with the consent of his parents and his own acknowledgement in writing that he was competent to stand trial. But Baker said that happened in adult court, and he repeatedly steered Sanchez to address what happened in juvenile court, asking if she would defend the waiver. “I’m suggesting to you, you need to do that,” he said.

“If you’re not supposed to be in the room, what happens in that room isn’t legitimate,” he later said.

Kirsch noted the Indiana Supreme Court has held that the determination of waiver from juvenile court requires an investigation that “shall not be a perfunctory proceeding.” Brown noted that Marion County typically grants 90 days for juvenile investigations when waiver to adult court is requested. “Why the rush to justice?” she asked at one point.

Sanchez said the juvenile judge was under no statutory obligation to mandate a competency investigation solely based on Gingerich’s age.

“We don’t know if he was incompetent,” Sanchez said of Gingerich. “There’s no error in failing to order” a competency investigation, she later said.

The judges also said they were troubled by evidence presented in the juvenile hearing by a probation officer who said he knew of no secure juvenile facility that could accept a 12-year-old convicted in a homicide, despite numerous placement options. At the discretion of the Department of Correction, Gingerich currently is housed in the Pendleton Juvenile Correctional Facility.

Gingerich defense attorney Monica Foster said the trial court was misled on that and other facts and never had evidence of Gingerich’s incompetence to stand trial made available before the waiver hearing. She said his parents likely signed a plea in a legal landscape where they saw no due process, reciting a record replete with denials of requests for continuances and motions to reconsider.

The judges also challenged Foster, who indicated that Gingerich’s slight size should have given the juvenile judge pause to further consider competency.

“With all due respect, height does not prove incompetency,” Baker said. Foster replied that a report was done after the waiver hearing that would have proven incompetency and additional evidence would have been presented if defenders had been allowed to prepare a case.

“I’ve never seen an AG’s office so wed to waiver,” Foster said.

Baker counseled Foster that if Gingerich, now 14, prevailed and the case were remanded for new juvenile proceedings, he again could be waived to adult court, where the original murder charge could be refiled. It carries a potential 65-year prison sentence.

“There’s a chance you might win this battle but lose this war,” Baker said.

“I know that I risk that,” Foster said. But she said she also knew “what the evidence would look like at a fair juvenile hearing.”

After Tuesday’s argument, Indiana Attorney General Greg Zoeller issued a statement defending Gingerich’s conviction and sentence and asking the court to affirm them.

“The state’s position is that the plea agreement entered by the defendant with the vigorous assistance of two attorneys and his parents should not be disturbed. The trial court and county prosecutor followed Indiana law, and the defendant’s rights were not violated,” Zoeller said.

Read more about the Gingerich case in the Oct. 26 issue of Indiana Lawyer.



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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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