A Tuesday ruling by the Indiana Court of Appeals to overturn his murder conviction could be considered an early Christmas gift for Paul H. Gingerich, now 14, who has not been home since he took part in the April 20, 2010, murder of a Cromwell man.
The question now is will he receive another gift and be home for his 15th birthday?
Gingerich has been at Pendleton Juvenile Facility in Pendleton, Ind., since Jan. 18,
2011. Prior to that placement he was at the Kosciusko County Jail and Pierceton Woods since his apprehension on April 21, 2010, when he was just 12 years old.
Gingerich will remain in custody pending further order of the appellate court.
Sentenced in 2011 to 30 years in prison for his role in the murder of Philip Danner, Gingerich pleaded guilty to conspiracy to commit murder. He received the same sentence as his co-defendant, Colt Lundy, who was 15 at the time of his sentencing in September 2010. Danner was Lundy’s step-father.
The Indiana Court of Appeals rendered its decision Tuesday morning to reverse the teen’s conviction for conspiracy to commit murder, a class A felony and remand the case back to Kosciusko County Juvenile Court for proceedings consistent with their decision — a new juvenile waiver hearing.
In essence, the court states the juvenile court did not provide adequate time prior to the waiver hearing for the defense which hindered Gingerich’s due process.
The state has 30 days to file a petition for transfer to the state’s Supreme Court. That petition may or may not be accepted by the higher court.
Monica Foster, Indianapolis, who took on Gingerich’s appeal pro bono, is “ecstatic, but not surprised,” at the court’s decision. Foster spoke mid-afternoon Tuesday to Gingerich’s mother, Nicole Gingerich, and his father, Paul A. Gingerich and Gingerich himself.
Foster related that Nicole Gingerich broke the news to her son, who reported that he cried at the news. “By the time I called he was composed and was happy and inquisitive,” she stated, noting the conversation was brief as he had to attend class.
Foster explained, however, that the state could file a petition to transfer from the Court of Appeals to the Indiana Supreme Court but “ … it’s a rock solid case. I’m
hopeful the state doesn’t file.”
“I think the Court of Appeals decision is a real reasoned opinion, it’s a long opinion for the court — 36 pages,” added Foster. “There was no new law, the law was
applied as it existed in Paul’s case.”
Foster explained the court reversed the decision and ordered it back to the juvenile court to determine if he is competent for a wavier. “A court cannot proceed if he’s incompetent as he was the first time through,” she stated. “At this point, I don’t know if he’s matured the last two years. If he’s competent the court can proceed. It’s not a question of guilt or innocence, but mental state in the commission of the offense and if he was competent in the decision he made.”
The decision by the appellate court was rendered just 42 days after the oral arguments, a quick decision in some sense. Foster wasn’t surprised at the turn around as the justices had been fully briefed by May 15. She feels the justices knew where they wanted to go by the time the oral arguments were heard.
Foster plans to see the case through to the conclusion.
Indiana Attorney General Greg Zoeller’s office, which represents the prosecution on appeal, is reviewing the opinion and has not yet decided whether to seek transfer to the Indiana Supreme Court.
Zoeller issued this statement Tuesday afternoon: “Among the most disheartening cases seen in the criminal justice system are those involving young people charged with extremely violent crimes. 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.”
Kosciusko County Prosecutor Dan Hampton will be conferring with the attorney
general’s office regarding any further procedures. He did state, “The local process will not begin until the appellate process has run its course. It is my understanding that Gingerich will remain housed in the DOC until the appellate time frame is completed. At that time, I will then be able to give the official prosecutor’s opinion on the future handling of this case.”
Indiana Court of Appeals Judge Elaine B. Brown, in the justice’s analysis, wrote: “The crux of the arguments of Gingerich … are essentially that the juvenile court’s denial of the continuance prohibited Gingerich from receiving a full and fair opportunity to present his claims i.e. a denial of due process … Under these circumstances, in which Gingerich’s counsel had four business days to prepare and he repeatedly moved for a continuance … we conclude that Gingerich’s counsel did not have sufficient time to prepare and that he was prejudiced.
“(We) note that Gingerich, on appeal, identified specific instances in which his lack of time to prepare prejudiced him at the waiver hearing.”
For a more detailed look at the appeal, see today’s issue of The Mail-Journal.