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Thursday, December 13, 2012

Ind. Decisions - "A Kosciusko County boy was deprived of due process rights when a judge rushed through a hearing that sent the 12-year-old to adult court on a murder charge"

The Dec. 11th Court of Appeals opinion in Paul Henry Gingerich v. State of Indiana (ILB summary here) is the subject of an editorial today titled "Justice - delayed" in the Fort Wayne Journal Gazette:

The Indiana Court of Appeals judges have determined something advocates for justice already knew: A Kosciusko County boy was deprived of due process rights when a judge rushed through a hearing that sent the 12-year-old to adult court on a murder charge.

Even worse, the court found, the key witness in the hearing was simply wrong in his testimony about crucial facts. Robert Babcock, Kosciusko County’s chief probation officer, testified that if Paul Gingerich remained in the juvenile system, he would be released at age 18, if not sooner, without parole. In fact, Gingerich could have been held until age 21 then released on parole.

Babcock testified there were no residential treatment facilities in Indiana appropriate for a juvenile who committed a homicide. In fact, Gingerich’s attorneys later found 17 private facilities that would accept a 12-year-old convicted of murder in addition to a state-run juvenile prison.

Judge Duane Huffer of Kosciusko Superior Court apparently ignored Indiana law that requires an accused underage killer be waived to adult court only after a “full investigation and hearing.” Huffer gave Gingerich’s original lawyer just four days to prepare for a waiver hearing, not enough time for a psychological evaluation, discovery of the prosecution’s evidence or research to prepare to question witnesses.

Further, Huffer suggested that the state’s juvenile system cannot properly handle a young juvenile charged with murder.

The appeals court wrote: “We note that such a view is contrary to the language of (the law) … which allows for the juvenile justice system to rehabilitate juveniles accused of committing an act of murder if the juvenile defendant demonstrates that ‘it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.’ ”

Gingerich – an 80-pound sixth-grader when he was accused of helping a friend kill the friend’s stepfather – pleaded guilty to conspiracy to commit murder and was sentenced to 25 years in prison. The appeals court rightly sent the case back to juvenile court for another waiver hearing.

Typically, Indiana’s attorney general would appeal this week’s ruling to the state Supreme Court, particularly if a precedent were at stake. But case law is already clear, and Attorney General Greg Zoeller’s office said his office will study whether to appeal.

“Among the most disheartening cases seen in the criminal justice system are those involving young people charged with extremely violent crimes,” Zoeller said. “For prosecutors and judges, these are among the most difficult cases as well in terms of balancing the rights of the juvenile with the safety of the community. We will carefully review our options after consulting with the county prosecutor and conducting further research.”

Zoeller might appeal, but he could conclude that the ruling is so obviously the right one that justice would be best served by sending Gingerich back to juvenile court for a proper hearing.

Make no mistake, deciding how to treat a 12-year-old who helped kill someone is no easy matter. And regardless of age, the boy helped kill Philip Danner. But Indiana’s constitution emphasizes that the criminal justice system is based on reformation, not vindictive punishment, and that is especially true for a child. Kosciusko officials were wrong to simply send Gingerich to adult court without a true and thorough investigation into the boy’s competency and options for incarceration.

Now, he will finally receive the evaluation justice demands.

Posted by Marcia Oddi on December 13, 2012 10:17 AM
Posted to Ind. App.Ct. Decisions