FORT WAYNE – Early in Tuesday’s court arguments about 14-year-old Paul Henry Gingerich’s adult sentence for helping kill a friend’s father, his lawyer acknowledged the tightrope she is walking.
If she is successful in getting him back in juvenile court for a hearing about whether to try him as an adult, Monica Foster believes she can prove he was incompetent back in 2010 to stand trial.
But if Gingerich is waived to adult court again, prosecutors can file a murder charge against him carrying a possible 65 years in prison. And there is no guarantee he would receive a favorable plea agreement with prosecutors again.
“Candidly, ma’am, there’s a concern you might win the battle and lose the war,” Indiana Court of Appeals Judge John Baker said.
Gingerich – then 12 – along with then-15-year-old Colt Lundy, each were charged with murder in the death of Philip Danner, Lundy’s stepfather. They shot him to death April 20, 2010, inside his Kosciusko County home.
Both pleaded guilty to charges of aiding in a murder.
Gingerich received a 25-year-sentence, and the Indiana Department of Correction placed the boy in its Pendleton Juvenile Correctional Facility, citing his age and the department’s obligation to keep him safe.
He could be out of prison by age 24 depending on educational credits and good-behavior rewards.
Gingerich’s father, Paul A. Gingerich, attended the hearing with numerous other relatives from the Cromwell area.
He said he thinks sometimes about the gamble being taken with their legal strategy but believes in Foster.
“He was too young in the first place to be in adult court,” Paul A. Gingerich said. “I doubt he would ever do anything like this again ever. He takes as much responsibility as he can.”
Foster is asking the court to overturn the decision by Kosciusko Superior Court Judge Duane Huffer to waive the younger Gingerich into adult court to face a charge of murder.
She pointed out that if she loses the current argument, she will have 30 days to appeal the finding.
By comparison, the boy’s attorneys had just five business days to prepare for the waiver hearing.
In a similar Allen County case, Jamone Williams was 12 at the time he shot and killed a community mentor, Prince Chapman. Williams was charged with the crime in April 1999 and was waived to adult court at the age of 13 nearly five months later. His hearing also lasted several days and included expert testimony.
“I don’t understand the rush to judgment,” Foster said. “We believe he was the youngest child ever waived to adult court in Indiana. Why five days?”
Appellate Judge James Kirsch specifically asked Deputy Attorney General Angela Sanchez whether Gingerich’s due process rights were protected.
“Should other trial judges be doing this?” Kirsch asked.
Sanchez said she can’t say it’s the best practice. But she also noted there was nothing before the court to indicate a competency hearing was needed.
Baker asked Foster repeatedly what evidence she had of incompetence.
“He was this high,” Foster said, indicating Gingerich’s small stature at the time of the crime.
Baker interrupted, though, noting “height does not determine a person’s competence.”
Sanchez focused almost exclusively on the plea agreement Gingerich signed in adult court giving up his right to challenge the waiver proceedings.
She said Gingerich wasn’t “railroaded” and noted he and his parents made a carefully thought-out decision to take the plea and preserve the majority of his adult life as a free man.
Foster used that plea in her rebuttal – noting that it was unnecessary for Gingerich, two attorneys and his parents to sign the plea agreement if there was no concern about his competency.
“They knew there were problems,” she said.
The court is expected to rule in the coming months. No matter the decision, it will likely be appealed to the Indiana Supreme Court.
