Judge won’t give up case despite order from court
Death penalty views at issue
Pulaski County Circuit Judge Wendell Griffen said he will not — and cannot — give up jurisdiction of a potential death-penalty case despite a state Supreme Court order barring him from presiding over matters involving capital punishment.
Neither the prosecution nor defense has questioned Griffen’s ability to fairly administer the law.
“There are no allegations or facts in this case which indicate that the [judge] has allowed his personal moral and religious objections to capital punishment to hinder his ability to follow the law. Neither [side] allege that the undersigned [judge] is disqualified from hearing this case,” Griffen wrote in his eight-page order. “The Court holds that [the defendants’] right to a fair trial would be violated by disqualifying the undersigned or any other judge based on whether he or she holds moral or religious concerns about capital punishment.”
Griffen indicated he was bound by judicial ethics to stay with the case. He noted that the court rules prohibit judges from recusing from cases that present issues they may find personally disagreeable while requiring that they “uphold their oath to apply the law fairly and impartially.”
“The undersigned will uphold his oath, respect the rights of all parties, and decide all matters in the case fairly and impartially,” Griffen’s Tuesday ruling states.
The Arkansas Supreme Court barred Griffen from presiding over any case, criminal or civil, that involves the death penalty in April 2017. Griffen challenged the order in federal court, but his lawsuit was rejected.
The judge asked the justices to reconsider the order last year, but they denied him in September 2019, stating that he had taken too long to ask. The dispute between Griffen and the justices led to ethics investigations into both sides that ultimately concluded with no findings of wrongdoing.
Griffen’s ruling noted that the order came after he, as a pastor, had participated in a Good Friday prayer vigil with some church members at the Governor’s Mansion as the state prepared to execute eight convicted killers. Critics have called Griffen’s display a protest, but the judge has rejected that description, saying that sign-wielding protesters in the area were not part of his congregation.
Dressed in a white suit, Griffen, an ordained Baptist minister, lay on a cot in a pose he said was intended to evoke the appearance of Jesus before crucifixion. While he was on the mansion grounds, Griffen issued an order in a lawsuit questioning the state’s ownership of a lethal-injection drug that could have halted the executions. The Supreme Court vacated that order, and authorities were able to execute four of the defendants.
Griffen stated that the question of whether he should retain jurisdiction is based on whether the Supreme Court order reflected a finding that he could not act impartially in this specific capital-murder case.
“The obvious answer to that question is ‘no.’ [The order] cannot operate as a judicial determination about whether the undersigned is fair and impartial,” Griffen wrote.
The Arkansas Supreme Court has never ruled that a judge or juror can be disqualified for holding moral or religious objections to capital punishment, Griffen noted. He observed further that for 52 years, the U.S. Supreme Court has held that a defendant’s right to a fair trial is violated when potential jurors are removed from consideration because they have concerns about the death penalty.
“If that is true for jurors, it must be equally true for a … trial judge,” Griffen wrote.
The justices’ unsigned order does not explain their reasoning, only stating that it was “to ensure all litigants in this district receive a fair and impartial tribunal.”
The order was the basis for the motion by prosecutors to ask Griffen to stand aside in this case, saying that they were concerned that his continued jurisdiction could be grounds for a successful appeal of any trial verdict.
“This statement by the Arkansas Supreme Court, which is the appellate body that would hear any matters involving capital punishment, either indicates its belief that Judge Griffen cannot be impartial in this type of case, or that Judge Griffen presiding over a death case would undermine the public’s confidence in the outcome of the case due to his public display that gave rise to this entire matter,” chief deputy John Johnson wrote in his motion. “Because of the language of the Order, it would seem that allowing any death penalty case to be heard by Judge Griffen, whether for pretrial motions or before a jury, would be building error into the case or jeopardizing the integrity of the process.”
Reached for comment Wednesday, Johnson said he is exploring options on how to proceed.
Prosecutors have not stated whether they will seek the death penalty in the case, which involves the January 2020 double homicide of a Sherwood couple. Charged in the slayings are Napoleon Haire Jr., 34, and Gabrielle Marie Hill, 27, both of North Little Rock.
In the motion, Johnson described the decision to pursue execution as a serious and complex one that prosecutors need time to fully consider.
“Rushing the decision regarding the death penalty is not a practice this office wishes to employ. The decision of whether to pursue the death penalty is a solemn one that the office … takes very seriously,” he wrote. “It is concerning to think that a victim’s family, defendant, defense counsel or the general public would have the impression that it was made in haste.”
He emphasized in the pleading that prosecutors have no concerns about Griffen’s impartiality as judge.
“The Office of the Prosecuting Attorney has complete faith in the fairness of Judge Griffen when on the bench,” the motion states. “This office has never seen Judge Griffen allow his personal opinions to taint his rulings from the bench. This office has never requested that Judge Griffen recuse himself from a case, and is not doing so now.”