Death row heat suit attorneys seek $775,000 in fees, costs

Attorneys for three condemned killers who filed suit last summer successfully challenging the hot conditions on Louisiana’s death row are asking a federal judge to order the state to pay the lawyers more than three-quarters of a million dollars in fees and costs.

But attorneys for Louisiana corrections officials contend the request, for more than $687,000 in attorneys’ fees and $87,000-plus in case-related costs, violates a federal appellate court’s June stay in the case.

Lawyers for the inmates disagree and say the 5th U.S. Circuit Court of Appeals only stayed implementation of the court-ordered heat remediation plan, not all proceedings in the contentious case.

The state’s lawyers are calling on Chief U.S. District Judge Brian Jackson to either strike the inmates’ attorneys’ motion for fees and costs or hold it in abeyance until the 5th Circuit rules on all appeals in the case.

James Hilburn, an attorney for state corrections officials, said the state will respond to the motion to set attorneys’ fees and costs if and when a court orders it to do so.

Jackson, of Baton Rouge, toured the Angola prison last summer and ruled in December that high heat indexes on death row amounted to a violation of the inmates’ constitutional rights, and he ordered the state to devise a plan to cool down death row.

In his Dec. 19 ruling, Jackson found the state defendants liable for violating the inmates’ Eighth Amendment protections from cruel and unusual punishment, and he indicated the inmates’ lawyers would be entitled to attorneys’ fees to be determined at a later date. It will be up to the judge to decide how much money is awarded to the inmates’ lawyers.

The judge in May approved the state’s court-mandated remediation plan — which includes adding air conditioning, providing chests filled with ice and allowing inmates once-daily cold showers — and ordered its immediate implementation. But the New Orleans-based 5th Circuit stayed the order June 6.

Jackson on June 2 had directed the attorneys for death row inmates Elzie Ball, Nathaniel Code and James Magee to file their motion for fees and costs by July 14, which the attorneys did.

The $687,198 in attorneys’ fees sought by 10 attorneys for the three inmates represents more than 3,700 hours of work at hourly rates ranging from $85 to $550.

“The hours expended by Plaintiffs’ counsel were reasonable in light of the amount of work required to litigate this case,” the inmates’ lead lawyer, Mercedes Montagnes, says in the motion. “The unusual and complex nature of this litigation demanded exceptional intellect, creativity, and advocacy skill in advancing Plaintiffs’ claims.”

Montagnes, deputy director of The Promise of Justice Initiative in New Orleans, is requesting more than $236,000 in attorney fees — the most of any of the 10 lawyers. The second-highest amount is nearly $170,000 by fellow Promise of Justice attorney Elizabeth Compa.

The motion notes that the inmates’ attorneys have been representing the inmates on a purely contingent basis and have not been paid to date.

“Absent the ability to recover fees for their time, it would be very difficult for attorneys to take on cases seeking to advance the rights of indigent and marginalized people,” Montagnes argues in the motion. “Attorneys who seek to vindicate fundamental constitutional rights on behalf of disadvantaged groups such as prisoners should be fully compensated for that work.”

Three of the inmates’ attorneys are with the firm of Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg in Los Angeles.

Bird Marella attorney Nilay Vora is requesting the third-highest amount at more than $116,000.

The Promise of Justice Initiative turned to out-of-state attorneys “when pro bono counsel from local private firms was not forthcoming,” the motion states.

“Plaintiffs submit that this action is near to a textbook example of an undesirable case,” Montagnes says in the motion. “Public disdain for individuals on Death Row … contributed to Plaintiffs’ counsels’ inability, despite diligent effort, to find local firm counsel to litigate the action.”

The inmates’ lawsuit was filed in June 2013 following a lengthy probe by their attorneys into heat conditions at Angola’s death row.

“This two year investigation involved numerous inmate interviews, public records requests, expert analysis of temperature and inmate health records, and extended negotiations with state officials,” Montagnes notes in the motion.

The $87,539 in costs sought by the inmates’ attorneys include court and public records fees, expert witness fees, court transcripts, research and investigative costs, and phone calls with clients.

The costs also include more than $17,000 for travel and meals, airfare, hotels, travel to Angola, and meals for the legal team and experts.

The suit by Ball, Code and Magee alleges heat indexes on death row reached 172 degrees in 2012 and 195 degrees in 2011, but the state disputes those numbers. The inmates contend the sweltering heat exacerbated their medical conditions and violated their constitutional rights, but the state says the prisoners have not suffered adverse health effects due to their conditions of confinement.

Jackson mandated in his December order that heat indexes — or how hot it actually feels — not exceed 88 degrees on death row.

The state has warned that the judge’s ruling could result in required changes at correctional facilities in Louisiana, Texas and Mississippi, and not just facilities that house death-row inmates.

Ball, 61, was found guilty of fatally shooting beer delivery man Ben Scorsone during the 1996 armed robbery of a lounge in Gretna. Magee, 36, was convicted for the 2007 shotgun murders of his estranged wife, Adrienne Magee, and their 5-year-old son, Zach, on a street in the Tall Timbers subdivision north of Mandeville.

Code, 58, was condemned to die for the 1985 murders of four people at a house in Shreveport. He drowned Vivian Chaney in her bathtub; stabbed and slashed to death Chaney’s 17-year-old daughter, Carlitha; and shot to death Vivian Chaney’s brother, Jerry Culbert, and her boyfriend, Billy Joe Harris.