Northwest Arkansas Democrat-Gazette

Ex-chief justice speaks on ethics

Brill touches on Little Rock judge’s roles in death penalty case, protest

- JAIME ADAME

FAYETTEVIL­LE — As national attention turns to Arkansas and the role of judges in scuttling planned executions, Howard Brill recalled his time working to draft a judicial code of conduct.

“We struggled with the question of judges and free speech,” said Brill, a University of Arkansas law professor.

Brill, who served as chief justice of the state Supreme Court from September 2015 through last year, spoke at the UA School of Law on Thursday about ethics and his time on the state’s highest court.

His presentati­on included a slide featuring an image from Friday of Pulaski County Circuit Judge Wendell Griffen, who appeared strapped to a cot at a demonstrat­ion opposing the death penalty.

Earlier in the day, Griffen issued a ruling temporaril­y prohibitin­g the state from using a drug as part of planned executions. The state’s highest court later pulled Griffen from presiding over the case.

“I don’t have any real criticism of any judge taking any stand publicly outside the courtroom and making statements,” Brill said. “I think the question is, after you say that, can you continue to preside over the case? That’s the issue.”

Brill described how, as a member of the state Supreme Court, “on three or four cases I had strong personal feelings, values if

you like,” including about a death-penalty case.

He said he still voted because he felt he could separate his feelings from the law.

“And the other difference was I wasn’t making public speeches about my feeling on the death penalty. I mean, my wife knew, I knew. No one else knew, and so I just felt I could separate that,” Brill said when asked about Griffen.

Brill also referred to a judicial-conduct code for the state he helped write, serving as the chairman of a task force that studied the matter about 10 years ago: “Before speaking or writing about social or political issues, judges should consider the impact of their statements,” the code states.

He served on the state Supreme Court as an appointee of Gov. Asa Hutchinson, stepping in after the retirement of Jim Hannah. The state has elections for Supreme Court justices, and Brill’s time on the court coincided with issues raised about when a judge should recuse.

Attorneys had asked for the recusal of Justice Rhonda Wood in a wrongful-death lawsuit involving a nursing home owned by a Wood campaign donor.

Brill said while there may be some informal discussion among justices about recusal, “each individual justice makes his or her own decision whether or not to sit out

a case.” Asked why, Brill said the justices on the Arkansas court could turn to the U.S. Supreme Court as an example, where individual justices also decide whether to recuse themselves.

He said with the Legislatur­e not acting this year on campaign finance reform, he expected so-called dark money, sourced anonymousl­y, to continue to flow to candidates.

The Arkansas Bar Associatio­n created a task force that last year came up with recommenda­tions on changes to ensure a “fair and impartial” judiciary, including the appointmen­t of Supreme Court justices.

Brill described the report as having a minimal impact, however.

“We did not adopt the controvers­ial changes,” Brill said, adding “the changes we did approve, you might say were so minor as to be insignific­ant.”

Asked if he had an opinion about whether justices should be elected or appointed, Brill said he hasn’t taken a stand is “probably not going to.”

Brill said he sees the advantages of both methods for selecting the judiciary.

“Over the years we’ve had outstandin­g judges who’ve been elected. And so to suggest we’re going to get better judges if we go to some other system Ithink is questionab­le,” brill said.

He added campaigns have become “so ugly” that “some good people don’t want to run,” adding appointmen­ts could increase diversity.

 ?? NWA Democrat-Gazette/DAVID GOTTSCHALK ?? Former Chief Justice Howard Brill speaks Thursday on “Ethics and the Arkansas Supreme Court: Insights from 16 Months” at the E.J. Ball Courtroom on the campus of the University of Arkansas.
NWA Democrat-Gazette/DAVID GOTTSCHALK Former Chief Justice Howard Brill speaks Thursday on “Ethics and the Arkansas Supreme Court: Insights from 16 Months” at the E.J. Ball Courtroom on the campus of the University of Arkansas.
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