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Wednesday, October 31, 2012

Ind. Courts - "COA raises questions in case that sent 12-year-old to prison for 25 years"

Here is Robert King's Indianapolis Star story on the Gingerich oral argument yesterday. (For ILB background, start here.) Some quotes from the long, front-page story:

The future of a boy believed to be the youngest Hoosier ever sentenced to prison as an adult rests now in the hands of three judges who today raised pointed questions about whether his case was handled properly.

The Indiana Court of Appeals panel heard 40 minutes of arguments in the case of Paul Henry Gingerich, a 14-year-old who’s been imprisoned the last 2 1/2 years after he pleaded guilty, at age 12, to conspiracy commit murder in the 2010 killing of his friend’s stepfather in Kosciusko County. A decision could take several weeks.

The judges’ questions seemed to focus in on whether it was proper that Gingerich’s case was moved out of juvenile court, whether his attorneys had enough time to argue that it should stay and, given all that, his eventual guilty plea wasn’t valid. * * *

His attorney, Monica Foster, argued that Gingerich -- an 80-pound sixth grader at the time of the crime -- didn’t understand the proceedings well enough for the case to be moved to adult court. She also said the four days his attorneys had to prepare for the waiver-to-adult-court hearing was inadequate -- that defense attorneys in Marion County, by contrast, typically get three months. She said a psychologist who examined the boy was concerned about his competence to stand trial in adult court and that brain research on the development of youth would have aided his case.

The three appellate judges -- James S. Kirsch, John G. Baker and Elaine B. Brown -- quizzed Foster on some matters of law, but their most poignant question was about the risks Gingerich faces if they rule in his favor and give him a legal do-over. In other words, if the process is repeated and he’s again moved to adult court -- at age 15 by the time a new case would be heard -- who’s to say he might not get a stiffer punishment?

“There’s a concern you might win the battle,” Judge Baker said from the bench, “but lose the war.”

Foster said she has confidence in the system, despite the failure of the previous proceedings, and she thinks Gingerich would be allowed to remain in the juvenile system.

The judges seemed to reserve their greatest skepticism for Deputy Attorney General Angela Sanchez, who argued the position of the state and its prosecutors. Sanchez tried to focus the issue on Gingerich’s guilty plea, which she said nullifies any appeals he might make. Sanchez said Gingerich’s attorneys and his parents signed off on a deal that likely spared him a stiffer sentence on a murder charge, rather than the conspiracy count.

But the judges kept asking her why that plea should be considered if there was reason to believe then 12-year-old Gingerich didn’t know what he was signing.

Judge Brown took note of the short window Gingerich’s attorneys had to make the case he didn’t belong in adult court, asking “Why the rush to judgment by the juvenile court?"

Judge Kirsch noted an Indiana Supreme Court precedent that says the waiver hearings should be more than “perfunctory” and then asked if a week was enough time for Gingerich’s attorneys to prepare for a hearing with far reach effects.

“How can that be consistent with due process?” Judge Kirsch asked.

Sanchez struggled to respond to such queries, coming back repeatedly to Gingerich’s guilty plea, saying the court had no reason to suspect the boy was incompetent to stand as an adult and under no obligation to assume otherwise. But, at one point, she acknowledged that the Kosciusko court’s decision to allow such a short prep time to Gingerich’s attorneys “is not best practices” for courts around the state to emulate.

After the hearing, Sanchez had no comment on the courtroom debate. Her boss, Attorney General Greg Zoeller, issued a statement that said, in part: “The trial court and county prosecutor followed Indiana law, and the defendant's rights were not violated. Balancing respect for well-established legal precedent and the safety of the public, we ask the Court of Appeals to leave the guilty plea and corresponding sentence intact.” * * *

If Gingerich’s appeal is successful, his case would start over. A juvenile court would have to decide whether to keep his case or send it to the Circuit Court. Stay in the juvenile system and he’d likely stay in prison no later than age 21, quite possibly sooner. If the case is again sent to the Circuit Court, this time as an older teen, he could be sentenced again to a lengthy adult sentence.

While Foster thinks that’s the best course, his parents acknowledged it’s a risk.

His father said he would trust Foster, who took the case on a voluntary basis and brought it from nowhere to the Court of Appeals.

His mother, Nicole Gingerich, was less certain.

“I’d need to think about it,” she said.

Stacey Page Online, "Kosciusko County's Only Digital Daily Newspaper," has a long story dated Oct. 30, reported by Deb Patterson. Some quotes:
Was Paul Henry Gingerich competent in April 2010? Was the court lied to by a
court official in the waiver hearing?

Those two questions are among those now being considered by State Appeals Court Justices John G. Baker, Elaine B. Brown and James S. Kirsch.

Oral arguments as to whether Gingerich’s conviction in Kosciusko County Circuit Court should or should not be upheld, and whether the case should be remanded back to juvenile court for the process to proceed again, was heard this morning in Indianapolis. The hearing was available via a live webcast. * * *

Justice Brown did ask if the defense had an opportunity to cross examine the
witness. Foster stated that while they did, they had only five days to prepare and they were overwhelmed, “I would have been,” Justice Brown responded.

Foster pointed out there are 17 locked and secure facilities in the state that will accept a juvenile accused of homicide. When Gingerich was received by the Indiana Department of Corrections, they stated they could not send him to an adult facility, instead sent him to a juvenile facility, “where he is receiving rehabilitation and doing terrifically.”

Foster’s final comment was that the case was “mistake ridden from the beginning.”

In closing, Foster stated repeatedly the defense sought continuances prior to the waiver hearing and at the waiver hearing, but were denied. When the case went to adult court, a motion to dismiss was filed and denied. When new counsel stepped in, the issue of due process was raised stating the adult court had no jurisdiction. That matter was also dismissed.

An interlocutory appeal was denied. She stated this is why the parents accepted the plea agreement, however, she added the fact all parties involved signed the agreement was an indication there was a problem with the case.

Foster claimed the IDOC was watching the case and it was out of the graces of
their hearts not to put him in an adult facility, but place him at a juvenile facility — Pendleton.

When Sanchez had her turn to represent the state’s side, it almost appeared as if the justices reprimanded her in pursuing the fact Gingerich waived his right to an appeal through the plea agreement.

Sanchez stated there was no reason for the courts to believe Gingerich was ever incompetent and when questioned by Justice Brown if 90 days is standard before a
waiver hearing and if there was a rush judgment made, Sanchez stated it varies
from case to case and county to county. But, she cited the state statute that says
if a defendant over the age of 10 commits murder it is presumed juvenile court is inadequate and the individual should be waived to adult court.

Sanchez added there is no record of transcript from the hearing or probable cause represented at the waiver hearing. It was noted that the judge was looking at the
presumptive waiver before him and the safety and welfare of the community.

She argued the judge used caution when accepting the plea agreement, which was signed by his two attorneys and both parents, by making sure the boy did understand proceedings and the plea agreement.

Sanchez argued this matter should have gone through the post conviction process and is confident the ruling is iron clad based on the best evidence. She also noted Babcock provided information at the hearing “to the best of his knowledge” and said despite Foster’s insistence there are facilities that would take Gingerich, Foster has not shown where that facility is and added, “We have not learned if he would meet all the admission requirements.”

Justice Brown asked Sanchez if the judge failed to order competency findings which Sanchez replied, “If the judge had reason to believe he was incompetent it is his duty to order. There was no evidence before the court, there was a lot of evidence he was competent.”

Posted by Marcia Oddi on October 31, 2012 09:09 AM
Posted to Indiana Courts