Judges focus on juvenile due process in Gingerich murder conspiracy appeal

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.