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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. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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