Arkansas high court yanks judge who participated in protest off death cases

Published 19 April 2017

The Arkansas Supreme Court on Monday stripped Pulaski County Circuit Judge Wendell Griffen of his authority to preside over any death penalty-related cases, three days after he participated in a protest of the state's plan to execute seven convicted killers by the end of this month.

The high court's ruling also triggers an ethics investigation by the state Judicial Discipline and Disability Commission into Griffen's conduct.

"To protect the integrity of the judicial system, this court has a duty to ensure that all are given a fair and impartial tribunal. We find it necessary to immediately reassign all cases in the Fifth Division that involve the death penalty or the state's execution protocol, whether civil or criminal," the high court's two-page order states.

Hours later, the justices overturned a temporary restraining order that Griffen had issued regarding the use of a paralytic in the execution process. Griffen's order was issued in a lawsuit that the supplier of the drug had filed against the Department of Correction.

Griffen issued his restraining order Friday, the same day he was photographed at an anti-death penalty vigil at the Governor's Mansion, lying on a cot with ropes wrapped around him as though he were a prisoner on a gurney awaiting execution.

In the state's request to have the restraining order overturned, Attorney General Leslie Rutledge's office wrote: "Judge Griffen cannot be considered remotely impartial on issues related to the death penalty" and "has demonstrated that he is unlikely to refrain from actual bias regarding matters related to the death penalty, and at a minimum, he cannot avoid the appearance of unfairness and his impartiality might reasonably be questioned."

[EMAIL UPDATES: Get free breaking news alerts, daily newsletters with top headlines delivered to your inbox]

In addition to the state Supreme Court's action against Griffen, some state lawmakers have called for possible impeachment of the outspoken 6th Circuit judge.

House Speaker Jeremy Gillam, R-Judsonia, said he notified state representatives Monday that "we are going to look at the process and procedures that would be utilized if the chamber opted to go down that path [of impeaching Griffen]."

No one has ever been impeached in Arkansas under the current constitution, written in 1874, according to legislative officials.

The Supreme Court's order that Griffen's capital murder cases be reassigned doesn't cite any specific offenses or what conduct the justices want the judicial ethics commission to review.

The high court's order notes that Chief Justice Dan Kemp disagrees with some part of the decision and that he'll provide written reasons in writing later.

Griffen said Monday that he could not immediately respond to the high court order because he doesn't know what he's being accused of doing wrong.

"I am going to wait until my accusers present the facts that they are relying on to support the sanction that they have already imposed," he said. "I'm going to continue my work and await my mail."

Griffen, an ordained Baptist minister who also writes a blog and co-hosts a radio show about current events, has spent 18 of the past 21 years as a judge and is known for speaking with candor on a variety of political and social topics.

The Arkansas and federal supreme courts have recognized that judges have a constitutional right to free speech, he said.

"I look forward to vindicating myself and upholding the First Amendment," Griffen said.

Circuit Judge Alice Gray will now oversee McKesson Medical Surgical v. Arkansas, the lawsuit filed late Friday by the Virginia-based drug supplier that complained that Arkansas Department of Correction officials had duped the company into selling a 100-vial case of vecuronium bromide. The drug is a muscle relaxant that the state uses to stop an inmate from breathing.

McKesson filed a motion with the state Supreme Court over the weekend seeking to withdraw the lawsuit, stating that company officials are certain that the drugs will not be used because ongoing appeals by the condemned inmates appeared to have ended the possibility that the men will be executed as planned.

At approximately 11:45 p.m. Monday, the U.S. Supreme Court assured that when it denied the state's request to vacate a state Supreme Court stay of execution for Don Davis. Rutledge's office decided earlier in the day not to appeal a stay for Bruce Ward.

Attorneys and a spokesman for McKesson did not return several messages left for them Monday seeking comment on Griffen's removal from the case.

The immediate impact of the state high court's order is that three civil lawsuits related to the death penalty have been removed from Griffen's jurisdiction. They include the McKesson case. That lawsuit has been shifted to Gray.

Normally, circuit court cases are randomly assigned, but court records show that Griffen was assigned the McKesson lawsuit only after the firm's attorneys requested that it be assigned to him because he was already presiding over two other capital-punishment-related cases.

Those lawsuits, a 2015 challenge by death-row inmates on the legality of the state's execution procedures and a March lawsuit seeking to force the Arkansas Department of Correction to turn over the labels on its execution drug supply, were turned over to Judge Mackie Pierce.

In ruling on one of those cases last month, Griffen criticized the way the Arkansas Supreme Court had dismissed another lawsuit by death-row inmates. He described the court's handling of the case as a deliberate attack on the prisoners' rights.

After a U.S. Supreme Court decision this year, Arkansas was cleared to again carry out the death penalty after a 10-year hiatus.

Griffen stated in his ruling on a technical matter related to the 2015 litigation that the justices, who split 4-3 on the decision, ignored decades of case law to reach their conclusions and that by doing so, they violated the oath all attorneys take to uphold the law.

"It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state. As such, it is more than troubling and more than shameful," Griffen wrote.

Over the past week, Griffen has publicized his opposition to the death penalty in ways other than the Governor's Mansion vigil.

On April 10, he wrote a blog post titled "Religious Faith and Homicidal Motives" that criticized Arkansas' planned executions, calling them a "series of homicides."

Since December 2014, Griffen has posted on his blog his thoughts on numerous issues, including police shootings, racial bias and racial inequality, Little Rock schools and the Israeli-Palestinian conflict.

Griffen also frequently voices his opinions at public hearings and events, and questions of conflicts of interest have been raised on previous occasions regarding his court.

In 2006, his outspokenness on a variety of topics put him on a collision course with the judicial discipline commission when its ethics investigators claimed that by espousing a position on the different subjects he could be violating his judicial duty to appear fair and impartial.

Over the course of a year between 2005 and 2006, Griffen had denounced the federal government's Hurricane Katrina response as racially biased, had criticized the nomination of John Roberts for chief justice of the U.S. Supreme Court, had endorsed a state referendum to raise the minimum wage, had spoken out against the Iraq war and had condemned attacks on gays and foreigners.

His conflict with judicial discipline included his own lawsuit against the commission, although it was dismissed.

He ultimately won in September 2007, when the commissioners acknowledged that Griffen was engaging in the legal and protected exercise of his right to free speech, citing precedents by the state and federal supreme courts.

The commission also stated that there is nothing in the canons of the Arkansas Rules of Judicial Conduct that bar a judge from speaking out and that the commission does not have the authority to punish a judge who does so.

"There is no Arkansas Canon that expressly prohibits a judge or judicial candidate from publicly discussing disputed political or legal issues," the commission stated at the time. "The Canons cited ... cannot be used as a basis for a finding of judicial misconduct if the alleged misconduct is solely related to a public discussion of disputed political or legal issues.

In January 2015, Griffen voiced his opposition to a proposed state takeover of the Little Rock School District but did not recuse himself -- despite requests from the state -- from a lawsuit filed over the takeover. That case was randomly assigned to him.

Monday's Supreme Court order also means that Griffen will not be allowed to preside over any more capital murder cases.

The 64-year-old jurist is one of five judges, out of 17 in the 6th Judicial Circuit of Perry and Pulaski counties, with a criminal docket, and one of only two black judges.

About 9 percent of all criminal cases go through his court.

Griffen has been a circuit judge since 2011. He was on the Arkansas Court of Appeals for 12 years until losing re-election in 2008.

Information for this article was contributed by Michael R. Wickline of the Democrat-Gazette.

A Section on 04/18/2017