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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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