Indiana Attorney General Greg Zoeller requested last month to have the case of Paul Henry Gingerich transferred to the Indiana Supreme Court for appeal.

The Indiana Court of Appeals in December rendered a decision 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 that a new juvenile waiver hearing should take place.

Gingerich remains in the Pendleton Juvenile Correctional Facility where he will remain until final ruling on the appeals. He will celebrate his 15th birthday on Feb. 17.

He was 12 at the time he was handed a 30-year prison sentence after he plead guilty in 2010 to an adult charge of conspiracy to commit murder in the shooting death of Philip Danner. Five years of his sentenced were suspended.

Monica Foster, counsel for Gingerich, filed her response to the attorney general’s request to have the boy’s appeal heard by the state’s highest court saying, “There is nothing more for this court to say and transfer should be denied.”

Foster noted two points specifically in the brief she filed last week. First, she said the dual basis for the Court of Appeals’ conclusion that Gingerich was denied due process during the juvenile proceedings due to false testimony was presented by the state and relied upon by the juvenile court when it waived jurisdiction. For reasons known only to the Juvenile Court, Gingerich was allowed only five business days to prepare for the waiver hearing.

Second, she said the due process violations prevented a lawful transfer of jurisdiction to the criminal court.

At lease 22 various cases and nine Indiana Code statutes were referenced in
the brief.

“The state seeks to invoke the jurisdiction of this court via a transfer petition that ignores a critical aspect of the Court of Appeals decision concerning the state’s misconduct and, vastly and erroneously inflates the scope of the Court of Appeals decision,” states Foster in the opening statements of the brief.

She further states the court of appeals properly held that Gingerich’s due process rights were violated for these reasons:

• Five days to prepare for a juvenile waiver hearing did not give the defense an opportunity to meaningfully confront the false evidence presented by the state
• “Paul had no prior juvenile referrals and there are very real questions about whether he was competent to stand trial due to developmental immaturity.
• The due process violations in the Juvenile Court rendered the transfer of jurisdiction a nullity. The criminal court never properly acquired jurisdiction.

“Paul’s guilty plea was properly set aside because the criminal court did not have the power to accept it. The Court of Appeals decision breaks no new ground,” Foster writes, “it merely applies this unique and disturbing set of facts to longstanding precedent. Transfer should be denied.”

Foster referred back to the testimony of then Chief Probation Officer Ronald Babcock who testified he was familiar with the different dispositional alternatives in the juvenile division and with the different avenues of private facilities on detention and the Department of Corrections. It’s noted that this allegedly false testimony was uncontested.

Foster notes Babcock’s statement of the DOC being able to hold Gingerich only until age 18 was false citing state statute which allows the DOC to hold a juvenile
for any amount of time it feels appropriate until the age of 21. Babcock also testified there is no parole for juvenile offenders, which she notes is false citing another state statute.

The state now has 18 days to submit a reply to Foster’s response.

For a more in-depth report, see today’s issue of The Mail-Journal.