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Relatives of the late Cary Owsley are considering suing Bartholomew County Coroner Larry Fisher, Sheriff Mark Gorbett and others for monetary damages because of what they see as a botched investigation into the man’s April 7 shooting death.
Owsley’s death was ruled a suicide by the coroner, but family members led by the dead man’s sister, Cheryl Jackson of Chicago, want an autopsy done on the body to look for evidence of a homicide.
Jackson says her 49-year-old brother would have never taken his own life.
On Friday, Jackson’s lawyers sent certified letters to Gorbett, Fisher and other county and state agencies, putting them on notice that a damage lawsuit was possible. The letters listed Jackson, Rosemary Pennybaker (Owsley’s mother) and Logan Owsley (a son) as family members who suffered a loss that could lead to a monetary claim.
The family has until April 7, 2015, to file an actual lawsuit in connection with Owsley’s death. But certified letters notifying government agencies of a potential legal claim had to be sent within 180 days of the shooting under state law. That deadline arrived Friday.
“This was simply a procedural step to preserve the family’s right to sue should the evidence warrant it,” said Merrillville attorney Trent McCain, one of two lawyers representing Jackson.
Copies of the two-page letter also were sent to the Bartholomew County Board of Commissioners, the Indiana Attorney General’s office and the state Department of Insurance, Political Subdivision Risk Management Commission. State law gives the agencies 90 days to respond.
Meanwhile, Jackson has filed suit in Bartholomew County to exhume Owsley’s body from Garland Brook Cemetery so she can have the body sent to an out-of-state forensic specialist. Lisa Owsley, the shooting victim’s wife, doesn’t want the body removed from the grave and is fighting to prevent it.
A court hearing in that case is set for 1:30 p.m. Nov. 20 in Bartholomew Circuit Court.
The coroner has intervened in the disinterment case, saying additional forensic tests won’t find anything to alter his initial ruling of suicide.
Fisher didn’t do an autopsy at the time of Owsley’s death, saying it wasn’t necessary to determine a cause of death. Jackson, who has led rallies at her brother’s grave to call attention to the case, says Fisher was derelict in his duty by not ordering an autopsy six months ago.
On Monday, McCain said it’s too early to outline how a lawsuit for damages might take shape or even if one will materialize. He said the family could theoretically seek damages in either state or federal court.
“We are reserving judgment on a possible lawsuit because we’d first like to have Cary’s body disinterred,” the civil rights attorney said in a telephone interview.
“We don’t want to rely on Coroner Fisher’s word,” McCain said. “Let us exhume the body and bear the expense of doing forensic testing. If the evidence shows that Cary Owsley actually died of suicide, then our quest is over and we have gotten the truth. The family is prepared to accept that. If not, then someone is hiding a murder.”
Fisher said Monday that Jackson and her lawyers can “do whatever they want.” If the family thinks the shooting was a homicide and they want to sue for damages, “they’ve got to figure out who killed him first,” the coroner said. “I think he (Cary Owsley) would be suing himself.”
Tainted death scene
Jackson’s lawyers further contend the Sheriff Department’s investigation was tainted by critical missteps, lost evidence and shoddy police work that led to the suspension of three deputies for violating policy on how to handle a crime scene and preserve evidence.
One of the suspended deputies was E. DeWayne Janes, the ex-husband of Cary Owsley’s wife. Investigators say Lisa Owsley was home alone with Cary Owsley at the time of the shooting and dialed 911.
Deputy Janes later acknowledged in a Sheriff’s Department internal review that he arrived shortly after the shooting and helped place the dead man’s body on a gurney. The internal review also found that other deputies allowed Deputy Janes to walk through the Owsley house and touch the handgun suspected to have been used in his death.
Gorbett also suspended then-Detective Christie Nunemaker, initially the lead investigator on the case, and Sgt. Dean Johnson for errors in judgment at the death scene. Nunemaker was subsequently demoted to the traffic division by the sheriff.
“In my 20 years as a legal scholar and practitioner, I do not recall ever seeing a homicide case so under-investigated,” said Jackson’s co-counsel, Ronald S. Sullivan Jr. of the Harvard Criminal Justice Institute. “Any family deserves better.”
The family’s certified letters — dated Oct. 4, 2013 — list Fisher, Gorbett, Deputy Janes, Johnson and Nunemaker as people against whom the family intends to assert “a tort claim” for damages.
Deputy Janes “had an obvious conflict of interest as he was once married to Cary’s wife. This wasn’t a garden variety suicide,” McCain said on Monday.
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