Arkansas Supreme Court removes Judge Griffen from death penalty cases, Senate President cautions members on impeachment

The Arkansas Supreme Court on Monday removed Pulaski Circuit Court Judge Wendell Griffen from participating in any of the state’s execution cases after he attended an anti-death penalty rally hours within hours of filing an injunction last Friday stopping the executions of seven Death Row inmates that were slated to begin today (April 17).

“Judges should maintain the dignity of their 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 conduct in their independence, impartiality, integrity, and confidence,” a decree by the high court stated. “A judge shall disqualify himself or herself in any proceeding in which … the judge … has made a public statement … that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.”

Judicial Discipline & Disability Commission Executive Director David Sachar told Talk Business & Politics his agency has opened an ethics investigation into Griffen’s conduct. It’s highly unusual for the JDDC to admit its investigating a judge, but the crush of national publicity surrounding Arkansas’ attempt to execute seven prisoners in the next week and half necessitated the change in protocol. It could take months or more than a year for the agency to come to a conclusion.

“Due process takes some time … everybody is entitled to have their story told,” Sachar said.

Talk Business & Politics called Griffen’s office Monday afternoon but got no response.

Arkansas Supreme Court justices ordered Griffin’s removal from any of the impending death row cases.

“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 administrative judge shall be responsible for determining the appropriate division(s) to receive these cases,” the decree states.

A new administrative plan for the cases connected has to be approved by close of business on Tuesday that reflects the permanent reassignment of all cases referenced above, future cases involving this subject matter, and any other changes in case assignment to ensure all litigants in this district receive a fair and impartial tribunal, the decree states.

Griffen issued a temporary restraining order (TRO) on Friday on behalf of drug manufacturer McKesson-Medical Surgical.

McKesson-Medical Surgical filed a request in Pulaski County Circuit Court arguing that a drug produced by the company may be one of the three drugs used in Arkansas’ lethal injection protocol. The company said its drugs are not to be used for carrying out a death penalty. Griffen granted the request, suggesting that if the executions are carried out the harm to the company could not be reversed.

On Friday afternoon, Griffen attended an anti-death penalty rally at the Governor’s Mansion at which he laid down on a cot to resemble the lethal injection gurney that holds the inmates for execution.

Arkansas Attorney General Leslie Rutledge argued the TRO should be removed because McKesson’s original lawsuit does not meet the threshold for temporary restraining orders and should be vacated. She also said that efforts to provide proper notice under procedures for a TRO were not followed. She also argued Griffen should be removed because of his blatant bias towards the death penalty. McKesson signaled over the weekend that it might withdraw its filing due to a federal court’s preliminary injunction that was released on Saturday.

A three panel team will decide on the voracity of the claims against Griffen, Sachar said. The panel is similar to a grand jury. A vote will be taken at the end of the process, and it will decide what or if ethical charges can be leveled. Sachar didn’t speculate on what those potential charges or consequences could be.

WILL THE LEGISLATURE TAKE ACTION ON IMPEACHMENT?
Judge Griffen’s actions have also led to some members of the state legislature suggesting his impeachment – a move that would set in motion a little-used mechanism of the Arkansas General Assembly.

Senate President Jonathan Dismang, R-Searcy, alluded to the possibility and the procedure in a letter to Senate members on Monday, while he cautioned them against publicly stating their opinions on the judge and his recent actions.

“I ask that you heavily weigh any public comments that you make regarding this process and its outcome. Impeachment is a serious matter. Our role in the process requires an enhanced level of restraint,” Dismang wrote.

He added some of his general thoughts to the process, including how the House of Representatives would move for impeachment, while the Senate would convene for a trial. It would take a two-thirds agreement to convict an impeached judge.

“In a sense, each [of] us will become 35 independent jurors. We will be under oath and we will have a duty to act objectively when making our determinations,” Dismang added. “We will be asked to review the submitted facts, apply the evidence, and make an unbiased determination as to if the elected official’s actions rise to level of concurrence.”

“Pre-emptive proclamations of opinion regarding the possible concurrence by members of the Senate will undoubtedly allow the public to call into the question the integrity of the trial and our ability to remain impartial as jurors.

“Additionally, this is already a difficult time that cannot bear added distractions. I hope that we can allow the question of impeachment to be set aside until the execution process concludes,” Dismang said.