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Judge: DOC must pay $538K in ‘egregious’ death penalty records case

June 13, 2019

The Indiana Department of Correction’s refusal to disclose to the public information concerning the means it would use to execute a condemned criminal will cost taxpayers more than a half-million dollars in attorney fees, a judge has ruled.

Marion Circuit Judge Sheryl Lynch awarded $538,000 in attorney fees to plaintiffs who sued the DOC to obtain records pertaining to the lethal injection protocols that would be used at the Indiana State Prison in Michigan City in the event an execution was carried out. Lynch’s order was issued Wednesday.

Washington attorney Katherine Toomey, joined by attorneys from Plews Shadley Racher & Braun, successfully sued the department to obtain information on drugs the DOC could potentially use in a lethal injection. But rather than comply with Lynch’s prior order to disclose the information under the Access to Public Records Act, the DOC used an 11th-hour Statehouse maneuver to slip a so-called secrecy statute into the Indiana budget bill in the closing days of the 2017 General Assembly. The law inserted into the budget bill shielded DOC from disclosing the information, contravening Lynch’s order of summary judgment in favor of Toomey.

Lynch subsequently struck down that law, and her order issued Tuesday spelled out the highly unusual nature of the case. Lynch said the hefty award of legal fees was justified “given the procedural history of this APRA request… .”

“The Department in its actions going to the General Assembly to successfully obtain a retroactive statute without advising the Court and Toomey after the Court issued its Summary Judgment Order October 24, 2016 in favor of Toomey, and filing an improper appeal … was egregious,” Lynch wrote.  

The office of Indiana Attorney General Curtis Hill, which defended DOC in this case, said in a statement, “The Office has received Judge Lynch’s Order and we are reviewing it to determine our next steps.”

Lynch’s earlier order shed light on machinations between the DOC, Gov. Eric Holcomb’s office and the General Assembly that resulted in the last-minute language adopted as law that apparently was in direct in response to her ruling.

“Following the Court’s Ruling on Motion for Summary Judgment and during the five months the Department’s appeal was pending, the (DOC’s) Director of Legislative Services e-mailed the Governor’s Deputy Chief of Staff of Legislative Affairs. The e-mail attached the full text of the Secrecy Statute. On April 18, 2017, the Department’s deputy commissioner e-mailed the Governor’s legislative chief, saying, ‘[Name redacted] – I spoke with [name of Department’s legislative services director redacted] about this. I believe these [sic] version is substantially similar to the earlier draft, and should be helpful in resolving the Toomey case, and serve the other purposes ...,” Lynch wrote in a November 2018 order striking down the secrecy statute on numerous constitutional grounds.

Toomey, a partner with Lewis Baach Kaufmann Middlemiss PLLC of Washington, D.C., and local counsel Plews Shadley began litigating the case five years ago. Lynch dismissed the state’s argument that the plaintiffs had not prevailed in this case and, therefore, were not entitled to attorney fees.

“If the Department had not gone to the General Assembly without knowledge to Toomey or the Court to get a retroactive statute to essentially vacate this Court’s Order for Summary Judgment dated October 24, 2016 in favor of Toomey and file an improper appeal to the Indiana Court of Appeals and the Indiana Supreme Court to prolong the Attorney Fee hearing, then Toomey would not have needed to file its pleading to force the public disclosure of e-mails and legislative materials,” Lynch wrote.

Plews Shadley said in a statement, “Judge Lynch observes that this case started out as a simple public records request that could have been resolved very efficiently and inexpensively. Instead, the Indiana Department of Correction needlessly multiplied and dragged out the legal proceedings and forced Ms. Toomey through legal proceedings that no citizen should have to go through in order to get the government to obey the law.”

Indiana has not carried out an execution since 2009, though seven of the state’s nine death row inmates are under an active death sentence. The litigation comes as plaintiffs’ attorneys say pharmaceutical companies and distributors are loath to have their products or names associated with executions. Many have forbidden their products from being used to carry out lethal injections.

The case is A. Katherine Toomey v. Indiana Department of Correction, 49C01-1501-PL-003142.

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