DENVER — An appeals court ruled Wednesday that an attorney who sued over an issue with an Oklahoma death-chamber drug must be paid with public funds for his work on the lawsuit.
The 3-0 decision by the 10th U.S. Circuit Court of Appeals reverses a sealed decision on Feb. 12 by U.S. District Judge Vicki Miles-LaGrange in Oklahoma City against Norman attorney James Drummond.
She denied his request to be paid with public funds, on grounds that his work on the lawsuit was not within the scope of compensable work under the federal system of paying court-appointed attorneys.
Drummond's lawsuit a year ago was on behalf of Michael Hooper, convicted of killing his ex-girlfriend and her two children in 1993. The bodies were found in rural Canadian County
The lawsuit alleged that the use of pentobarbital — a barbiturate that was one of three drugs used in Oklahoma executions — could lead to an inhumane death because the state Corrections Department had only one dose.
The lawsuit failed and Hooper was executed on Aug. 14, 2012.
Drummond asked Miles-LaGrange to be paid $10,627 for his work on the lawsuit, which he took all the way to the U.S. Supreme Court. Under the federal system for court-appointed attorneys, Drummond and another attorney were paid by the district court with public funds in another case challenging the separate issue of the constitutionality of Hooper's death sentence.
Drummond said he thinks Wednesday's decision may be the first by any federal appeals court on compensation for challenges to lethal-injection protocols.
He brought the death-drug lawsuit under the Constitution's provision against cruel and unusual punishment. The lawsuit cited examples of executions that used drug protocols similar to Oklahoma's in which prisoners allegedly suffered immense pain.