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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.