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Judges reverse teen’s conspiracy to commit murder conviction

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The Indiana Court of Appeals has reversed Paul Henry Gingerich’s conviction of Class A felony conspiracy to commit murder, finding the Kosciusko juvenile court abused its discretion in denying the then-12-year-old’s request for a continuance of a waiver hearing.

In April 2010, Gingerich and 15-year-old Colt Lundy shot and killed Lundy’s stepfather and then took off for Arizona. Police apprehended them in Illinois. At the time of the murder, Gingerich was a little over 5-feet tall, weighed 80 pounds and was a sixth grader.

At the April 22, 2010, probable cause hearing, the court set a hearing on the state’s motion to waive juvenile jurisdiction for April 29. Gingerich’s attorney sought a continuance to allow time to prepare witnesses, obtain a psychological evaluation of Gingerich, and review exhibits and reports, but the trial court denied the motion for continuance.

At the hearing, Gingerich’s attorney again sought a continuance, which was again denied. A county probation officer testified that there was only one facility that could take a juvenile convicted of homicide. The officer misstated that there is no parole in the juvenile Department of Corrections and other facts pertaining to juvenile law. Gingerich and Lundy were waived into adult court and Gingerich eventually pleaded guilty to a lesser charge of Class A felony conspiracy to commit murder.

The Marion County Public Defender Agency and the Children’s Law Center filed amicus curiae briefs in the case. The MCPDA in its brief argued that a full investigation is a necessary and statutorily required prerequisite to a wavier, and that juveniles in Marion County who face being waved into adult court typically get at least three months to investigate and prepare for the hearing. The CLC also argued that juveniles should have time to prepare for a waiver hearing.

The state claimed, among other things, that Gingerich hasn’t shown that he was prejudiced by the denial of his continuance, and that by pleading guilty, Gingerich “tacitly admit[ted] that he could not have met his statutory burden.”

“We note that Ind. Code § 31-30-3-4 implicates valid liberty interests held by Gingerich. As he notes, Ind. Code § 31-30-1-1 vests ‘exclusive original jurisdiction’ in the juvenile court over a child who is alleged to, before becoming eighteen years of age, commit a delinquent act,” Judge Elaine Brown wrote for the court. “Also, Ind. Code § 31-30-3-4 provides for a ‘full investigation and hearing’ prior to juvenile jurisdiction being waived.

“Thus, at the outset of the filing of the delinquency petition Gingerich enjoyed the panoply of protections associated with being tried in the juvenile system, and he was entitled to a full investigation and hearing prior to the court ordering waiver. Accordingly, Gingerich’s liberty was at stake when the State moved to waive Gingerich into adult court.”

The judges ordered further proceedings on the matter consistent with their opinion, Paul Henry Gingerich v. State of Indiana, 43A05-1101-CR-27.
 

 

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  • Unconstitutional
    Most prosecutors are idiots and seek to convict at any cost without regard to guilt or innocence. Prosecutors lie, manufacture evidence, withhold evidence benefical to defendants even when they know that defendants are innocent, all under protection from lawsuits and prosecution. In effect prosecutors are above the law! WAKE UP AMERICA AND STAND UP AND SPEAK UP FOR JUSTICE

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. 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

  3. 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!

  4. 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.

  5. 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.

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