Constitutional Law

10th Circuit says judge erred in denying payment to lawyer who challenged execution method

An Oklahoma lawyer who mounted an unsuccessful legal challenge to the method of execution eventually used on his client in a death-penalty case is entitled to be paid for his time, a federal appeals court has ruled.

Reversing a federal district court’s decision not to award attorney fees to James Alexander Drummond for his work on behalf of Michael Edward Hooper in a constitutional challenge to the lethal injection method, the Denver-based 10th U.S. Circuit Court of Appeals said in a Wednesday opinion (PDF) that the Criminal Justice Act was intended to cover such work as well as the habeas corpus matter that Drummond was appointed to pursue.

Drummond, who was paid for his habeas work for Drummond, continued on with the Section 1983 civil rights case, even though he wasn’t getting paid for that time, until certiorari was denied by the U.S. Supreme Court.

The CJA describes legal work authorized for reimbursement as “every subsequent stage of available judicial proceedings, including … appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stay of execution and other appropriate motions and procedures,” the 10th Circuit wrote.

Hence, the appropriate procedure that Drummond pursued seeking a stay of execution for his client is included within that statutory mandate, even though the CJA doesn’t expressly focus on Section 1983 filings, the three-judge appellate panel said.

The district court does have discretion on remand, however, to determine the amount of attorney fees that Drummond should get, the appellate panel notes.

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