Ac­tivist judge pushes boundaries

Arkansas jurist who halted ex­e­cu­tions says he has a right to pro­mote his views.

Los Angeles Times - - THE NATION - By David Mon­tero

An Arkansas judge un­der fire for par­tic­i­pat­ing in a protest against the death penalty the same day he halted the state’s plan to ex­e­cute sev­eral men says that his de­ci­sion was based on prop­erty law, not per­sonal be­liefs.

“Prop­erty law is prop­erty law, no mat­ter whether one sup­ports or is op­posed to cap­i­tal pun­ish­ment,” Pu­laski County Cir­cuit Judge Wen­dell Grif­fen wrote this week of the tem­po­rary re­strain­ing or­der he is­sued. “My job as a judge was to ap­ply prop­erty law to the facts pre­sented by the ver­i­fied com­plaint and de­cide whether the med­i­cal sup­plier mov­ing party was likely to suc­ceed on its prop­erty law claim for re­turn of the ve­curo­nium bro­mide.”

Grif­fen was re­fer­ring to one of the drugs used in the state’s lethal in­jec­tion cock­tail and ef­forts by its man­u­fac­turer to pre­vent the state from us­ing it to put the con­victed mur­der­ers to death.

Grif­fen’s rul­ing hadn’t sat well with state of­fi­cials, and the state Supreme Court va­cated his or­der while also agree­ing with Arkansas Atty. Gen. Les­lie Rut­ledge’s re­quest to re­move him from cap­i­tal cases, based on writ­ings and ac­tions that showed the judge to be a strong op­po­nent of the death penalty.

He could also face im­peach­ment by the Arkansas Leg­is­la­ture for his ac­tions, which in­cluded a mo­ment dur­ing a Good Fri­day demon­stra­tion in which he lay on a cot to sym­bol­ize a man be­ing ex­e­cuted. “In sol­i­dar­ity with Je­sus, the leader of our re­li­gion who was put to death by cru­ci­fix­ion by the Ro­man Em­pire, I lay on a cot as a dead man for an hour and a half,” he wrote.

One of his fiercest crit­ics was Repub­li­can state Sen. Ja­son Rapert, who said Grif­fen was making a “mockery” of the process.

“He has no re­gard for the guide­lines of the court,” he said. “He prob­a­bly should not be a judge. If he wants to be an ac­tivist, he should prob­a­bly just go do that.”

Arkansas’ ex­e­cu­tion plans — it orig­i­nally planned to kill eight men over 11 days — have put the state at the cen­ter of the death penalty de­bate. Vig­ils and protests have been reg­u­lar oc­cur­rences in the state cap­i­tal of Lit­tle Rock, and op­po­nents of the death penalty were given a vic­tory Mon­day when stays were up­held by the courts for two ex­e­cu­tions sched­uled that night.

Two more ex­e­cu­tions had been sched­uled for Thurs­day night, but the state Supreme Court on Thurs­day can­celed one of them while clear­ing the way for the other by al­low­ing the state to use ve­curo­nium bro­mide in its death penalty drug cock­tail.

Grif­fen’s in­volve­ment in the protests struck ob­servers as un­usual; Arkansas has ju­di­cial con­duct rules in place that would seem to pro­hibit his ac­tions based on his po­si­tion.

The rules say a judge shall not par­tic­i­pate in ac­tiv­i­ties that would ap­pear to un­der­mine his or her in­de­pen­dence, in­tegrity or im­par­tial­ity, said Brian Gallini, as­so­ciate dean and pro­fes­sor at the Univer­sity of Arkansas School of Law.

Grif­fen has a long track record of pub­licly ex­press­ing his opin­ions, in­clud­ing ques­tion­ing the use of force in Fer­gu­son, Mo., when a po­lice­man fa­tally shot Michael Brown in 2014 and state­ments crit­i­cal of Pres­i­dent Trump.

He has a blog called “Jus­tice is a Verb” that tack­les Scrip­ture and cur­rent events, and he’s spent time on the air at KABF, an FM ra­dio sta­tion that dubs it­self “the Voice of the Peo­ple.”

He also preaches some­times at the Lit­tle Rock­based New Mil­len­nium Church, which was es­tab­lished in 2009 and bills it­self as “in­clu­sive, pro­gres­sive and wel­com­ing fol­low­ers of Je­sus Christ.”

But his post on April 10 was the one that ap­peared to spark the most out­rage.

“While the world med­i­tates about di­vine love, for­give­ness, jus­tice and hope, Arkansas of­fi­cials plan to com­mit a se­ries of homi­cides,” he wrote. “Act­ing in the name of the em­pire and op­er­at­ing un­der the author­ity of law, they plan to use med­i­ca­tions de­signed for treat­ing and healing dis­ease to kill men who are de­fense­less be­cause those men were con­victed of killing other de­fense­less peo­ple.”

Those who know Grif­fen weren’t sur­prised he took a pub­lic stand on the is­sue.

“He is al­ways ready to state his case and stand his ground for what he be­lieves in,” the Rev. Steve Co­p­ley said. “He is very sin­cere, af­fa­ble and cares about peo­ple — re­gard­less of their sta­tus in life.”

Co­p­ley, board chair­man of Faith Voices Arkansas and the Arkansas Coali­tion to Abol­ish the Death Penalty, first met Grif­fen more than 20 years ago at an in­ter­faith con­fer­ence. He con­sid­ers him a close friend and an ally on is­sues of so­cial jus­tice.

He said Grif­fen had never be­lieved his role as a judge pre­cluded him from hav­ing deeply held con­vic­tions and ex­press­ing them pub­licly, and he wasn’t sur­prised to see him at the rally in Lit­tle Rock on Good Fri­day.

Rut­ledge, in the court fil­ing, ar­gued that the act alone should have pre­cluded him from is­su­ing the tem­po­rary re­strain­ing or­der.

Rut­ledge, in the re­quest for the state Supreme Court to va­cate the or­der, wrote: “Judge Grif­fen has demon­strated that he is un­likely to re­frain from ac­tual bias re­gard­ing the mat­ters re­lated to the death penalty, and at a min­i­mum, he can­not avoid the ap­pear­ance of un­fair­ness and his im­par­tial­ity might rea­son­ably be ques­tioned.”

Michael Ger­hardt, con­sti­tu­tional law pro­fes­sor at the Univer­sity of North Carolina, said that Grif­fen’s pub­lic ac­tions struck him as “un­usual” and that judges were re­quired to ad­here to ju­di­cial codes to main­tain an ap­pear­ance of im­par­tial­ity.

“He is en­ti­tled to a pri­vate life and his opin­ions,” Ger­hardt said. “But the code of ethics don’t shut off when he goes home.”

Grif­fen of­ten has ar­gued other­wise, as he did in writ­ing about his rul­ing in a blog post pub­lished Wed­nes­day:

“Whether I sup­port or am op­posed to cap­i­tal pun­ish­ment does not change prop­erty law. I am en­ti­tled to prac­tice my re­li­gion — whether I am a judge or not — even if others dis­ap­prove of the way I prac­tice it.”

Sherry Si­mon

JUDGE WEN­DELL GRIF­FEN lies on a cot to dra­ma­tize the death penalty dur­ing a protest against the prac­tice Fri­day in Lit­tle Rock, Ark., the same day he is­sued a rul­ing halt­ing the state’s plan to ex­e­cute sev­eral men.

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