WARSAW — A Kosciusko County judge heard arguments Thursday for an appeal of the decision to try Paul Gingerich as an adult.
William Cohen, who took over as defense attorney for Gingerich in July, argued for interlocutory appeal of County Judge Duane Huffer’s April 29 decision to try Gingerich and Colt Lundy as adults. Gingerich, 12, and Lundy, 15, are both charged with the shooting death of Lundy’s stepfather Phillip Danner in his Cromwell home April 20.
County Judge Rex Reed, who denied earlier motions by Gingerich’s previous attorney Thomas Earhart, said he will consider the appeal and make a decision later. He will also hold a hearing later this month for Cohen’s request that the court reconsider its consolidation of the trials of Lundy and Gingerich, on the grounds that it violates Gingerich’s right to due process.
An interlocutory appeal is a challenge to a judge’s ruling before a trial has concluded. Cohen argued that there was not enough time before the April 29 hearing for Earhart to prepare, and that a psychological examination on Gingerich was not performed ahead of time.
By Cohen’s request, Gingerich was examined in July by Fort Wayne clinical psychologist Stephen Ross. Based on that report, Cohen filed notice of an affirmative defense of diminished capacity, arguing that Gingerich did not have the mental capacity to form the intent to commit murder.
The attorney also argued Thursday that interlocutory appeal may find, based on Indiana case law, that Kosciusko court lacks jurisdiction to even hear the case, since the waiver hearing was based on the original charge of murder and not the charge of conspiracy to commit murder later added by the state. An appeal now would also save the time and cost of a trial, he said, since Gingerich’s case could go back to juvenile court if it proceeded and defense appealed the results.
“Gingerich is in custody, he’s not going anywhere. There’s no issue in keeping him in custody,” Cohen told Reed. “If you allow the appeal, he could be sent back to a juvenile setting, where he could get the care and treatment that are lacking in an adult facility.”
“For a young boy of 12, it’s a life-changing and life-altering decision,” he continued. “For young Paul and all like individuals, it’s an important issue to decide statewide, not just in Kosciusko county.”
County Prosecutor R. Stephen Hearn responded that the trial would not be for nothing, and that delaying it further would risk seeing witnesses — many of whom were Gingerich’s young classmates — move away and become difficult or expensive to find again.
Saying he will consider the matter at length, Reed remarked that he believes his court has jurisdiction over the case whether he likes it or not, and that he sees it as his duty to try cases rather than pass them on.
“This court is not without heart. I acknowledge that Gingerich is a very young man, but on the other hand, the court has its duties,” he said. “I got it, whether I like it or not. I can’t just say, ‘I don’t want to deal with this case.’”
Gingerich was then taken back to the county jail, after being allowed to hug his mother and father.
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