Justices to weigh case on Griffen

Judge is flouting court, AG argues

The Arkansas Supreme Court is poised to act on accusations by the attorney general that Pulaski County Circuit Judge Wendell Griffen has flouted the court’s authority by retaining jurisdiction over a capital-murder case.

For almost three years, the high court has barred Griffen, who is also a Baptist minister, from presiding over any litigation, civil or criminal, involving the death penalty, but now Attorney General Leslie Rutledge is calling on justices to extend that prohibition to bar Griffen from presiding over any capital-murder case. The high court could act as soon as Tuesday, court filings show.

In her petition to the Supreme Court, Rutledge accuses Griffen of flouting the high court’s 2017 order, but the judge, a death-penalty critic, disputes that he’s done anything wrong, stating that there has never been any ruling that he’s ever failed to properly carry out his judicial duties. Griffen has stated, in written rulings, that he’s ethically bound to keep jurisdiction over the case in question now that it’s been assigned to him.

With neither prosecutors nor defense attorneys disputing his fairness and

impartiality as a judge, Griffen further contends that U.S. Supreme Court precedent that has barred screening potential jurors for their opposition to the death penalty should apply to judges as well.

The Little Rock lawyer tasked with defending Griffen before the Arkansas Supreme Court disputes that the justices have any reason to disqualify Griffen because as the criminal case now stands, the death penalty is not in play. Prosecutors have yet to decide whether to pursue execution for the defendant, Napoleon Haire.

In response to Rutledge’s petition, attorney Eugene Clifford, who represents Haire, says the state lawyers have not made any serious legal argument that the justices should take action against Griffen. Clifford also questions the way the state lawyers have characterized the judge in their petition to the high court.

“The State’s unnecessary and almost abusive language strongly suggests of improper motives and misuse of these extraordinary powers in order to have the Court expand an already unusual order against a sitting judge with whom the State apparently takes issue,” Clifford wrote in his 13-page response. “The State seems to see this merely as a case for inviting unnecessary conflict between a sitting circuit judge and this Court, with demeaning attitude and candor towards that circuit judge. That the State devotes pages to borderline character attacks on Judge Griffen while omitted legal analysis of any rigor whatsoever in its argument, bolsters that this is an improper use of extraordinary writs.”

EXECUTION PROHIBITION

In April 2017, the Arkansas Supreme Court issued a two-page order barring Griffen from presiding over any case “that involves the death penalty or the state’s execution protocol.” The high court did not state its reasoning — creating a sense of ambiguity that Griffen has repeatedly objected to — but said that “to protect the integrity of the judicial system this court has a duty to ensure that all are given a fair and impartial tribunal.”

The unsigned order also cited the Arkansas Code of Judicial Conduct, which requires that judges “maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and confidence.”

To many, the high court’s intention was clear. Court watchers presumed that although the justices did not say it, they intended to sanction Griffen because he had recently appeared at two anti-death penalty protests just before issuing an order adverse to the state’s efforts to resume executions after a 12-year hiatus.

That presumption was strengthened four days later when Chief Justice Dan Kemp issued a partial dissent to the order, writing that he disagreed with the sweeping decision to take all of Griffen’s death-penalty cases until Griffen had been subjected to an ethics investigation that ultimately would be reviewed by the court as part of its duties.

Kemp’s dissent stated that the Supreme Court had acted in response to Rutledge’s appeal of Griffen’s adverse order, which stemmed from a last-minute lawsuit by a pharmaceutical manufacturer that claimed that prison officials had acquired one of its execution drugs under false pretenses.

Rutledge, representing prison authorities who were the subjects of the lawsuit, had complained to the court then that “Griffen has demonstrated that he is unlikely to refrain from actual bias regarding matters related to the death penalty, and at minimum, he cannot avoid the appearance of unfairness, and his impartiality might reasonably be questioned,” her lawyers stated in the appeal, which also noted that he had blogged about his opposition to executions.

The Supreme Court overturned Griffen’s adverse order, transferring the execution-drug lawsuit to another judge, who went on to make the same ruling Griffen had, although the high court also overturned that decision on an appeal by the attorney general. Ultimately, those rulings never affected the state’s execution plan.

Barely a week after the high court stripped his authority over death-penalty litigation, a ruling that launched an ethics investigation into his actions, Griffen responded by filing ethics complaints against Rutledge and each of the seven Supreme Court justices. Four months later, the judge went further and sued each of the justices and the Supreme Court as a whole in federal court.

The case against the court itself was dismissed on sovereign-immunity grounds about six months later, with Griffen’s suit against the individual justices eventually thrown out at the order of the 8th U.S. Circuit Court of Appeals.

By then, Arkansas’ judicial watchdog agency, acting on the findings of a special investigator brought in from Mississippi, had decided to bring Griffen up on ethics charges. The Arkansas Judicial Discipline and Discipline Commission also would go on to do the same to all the Supreme Court justices based on the findings of a Benton lawyer acting as a special investigator.

But a full-blown public inquiry, which could have resulted in dismissal from the bench for Griffen and the judges, never happened because the commission eventually dismissed the ethics complaints, in part because authorities had taken too long to resolve them.

In June 2019, Griffen petitioned the high court to restore his authority to hear and decide execution-related cases, while simultaneously asking that the seven justices recuse from considering his request.

His argument for reinstating his authority included his claim that by punishing him, the court also was punishing voters who had twice elected him judge with the intention that he receive the full authority of the position as outlined in the state constitution.

The justices declined to recuse then, about seven weeks later, formally rejecting his reinstatement request in a ruling that stated Griffen had waited too long to ask for his authority back.

PROSECUTORS

Pulaski County prosecutors asked Griffen to give up jurisdiction out of concern, in part, over how the high court would react, partly because the solution suggested by the administrative judge would not be practical for prosecutors, and because they don’t want to give the appearance that the decision to seek the death penalty is one made lightly or in haste.

Chief deputy prosecutor John Johnson laid out those concerns in the motion asking that Griffen give up jurisdiction over the case.

“Rushing the decision regarding the death penalty is not a practice this office wishes to employ,” he wrote. “The decision of whether to pursue the death penalty is a solemn one that the Office of the Prosecuting Attorney for the Sixth Judicial District takes very seriously. 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 simply to avoid delay.”

Pursuing the ultimate penalty for a defendant cannot be made lightly, and often it cannot be made quickly, he wrote. Sometimes prosecutors know immediately that they will not seek execution, like if the victim’s family requests that they defer. In other cases, they cannot pursue it because the defendant is too young to be put to death under the U.S. Supreme Court standards. Regularly, the decision requires extensive research, investigation and consideration, Johnson stated.

“[It] is … frequently the case that the decision about whether to waive the death penalty cannot be made in the days immediately following charges being filed because of outstanding investigative issues that need to be resolved (such as proof regarding an old aggravating circumstance), forensic testing needing to be completed on evidence, or inquiry into the defendant’s mental capacity, just to name a few issues which could affect and delay the State’s decision to waive or not,” the motion states.

Allowing Griffen to preside over cases up until prosecutors decide they will pursue execution, then transferring the case to another judge, also isn’t practical, because that practice would likely result in trial delays that would jeopardize a defendant’s constitutional right to a speedy trial, according to the motion.

“[If] a case were allowed to remain [with Griffen] until the decision to pursue the death penalty was made with finality only to then be transferred to another court, the trial would be seriously delayed since the case would lose its place in line for trial dates, a valuable commodity in Pulaski County,” the motion states. “Such delay, to the State’s knowledge, would not be a valid reason to toll speedy trial.”

Furthermore, the motion contends, if prosecutors follow that process and then change their minds about seeking execution once the case is handed off to another judge, they open themselves to accusations of judge-shopping, which can carry sanctions as well.

Prosecutors say the issue is not a question of Griffen’s impartiality as a judge, stating that they have “complete faith in the fairness of Judge Griffen when on the bench. This office has never seen Judge Griffen allow his personal opinions to taint his rulings from the bench.”

But prosecutors also have to consider the implications of potentially violating a Supreme Court directive, the motion states.

“A violation of [the] order could lead to a finding of contempt by the Arkansas Supreme Court and [the prosecution] wishes to not be a participant, silent or otherwise, in such a violation,” the pleading states.

Given the language of the high court’s order, prosecutors also have to look beyond the immediate issue of conducting a trial and toward what the justices could do in regard to any appeal or challenge to issues raised during the proceedings, according to the motion.

“This statement by the Arkansas Supreme Court … 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” the filing states. “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.”

THE CASE

The capital murder case at issue is the January 2020 double-homicide of 36-year-old Britney Alyse Bell and Steve Keith Lutman, 31, at Lutman’s Markhaven Drive home in Sherwood. Authorities say the two were killed during a holdup while Bell’s 6-year-old son was at the residence.

Called to the home by a concerned neighbor about two hours before sunrise, police found Bell shot in the back and dead in the driveway while Lutman was dead inside, shot twice, once in the chest and once in the right finger, court filings show. The front door of the house, which had been locked with a dead bolt, had been broken open.

Facing charges in the slayings are Napoleon “Pollo Pollo” Haire Jr., 34, and Gabrielle Marie Hill, 27, both of North Little Rock. Brandi Beth “Snow” Purtle, 21, of Beebe is charged with hindering apprehension.

Barely a week after the high court stripped his authority over death-penalty litigation, a ruling that launched an ethics investigation into his actions, Griffen responded by filing ethics complaints against Rutledge and each of the seven Supreme Court justices.