Judge Wendell Griffen’s decision to inject himself forcefully into jury selection in the manslaughter retrial of former police officer Josh Hastings and to lecture parties on “cultural competence” has drawn objections from both the defense and the Pulaski prosecuting attorney’s office.
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Among many motions filed today in the case were motions from defense attorney Bill James that Griffen get off the case and that the venue be changed because of pre-trial publicity. Under Arkansas law, that could only be the other county in the judicial district, Perry County.
Hastings’ first trial for fatally shooting Bobby Moore, the 15-year-old driver of a car attempting to leave an apartment complex lot, ended in a mistrial. Hastings has been fired from the Little Rock police force. The jury said it was split 9-3 in favor of conviction, but the holdouts were firm. Race became a talking point in the trial’s aftermath because the jury was all white, the defendant white and the victim black. The victim also had a police record and Hastings has said he fired because he was threatened by the car driving toward him, an assertion disputed by the state’s accident reconstruction expert.
Since then, Griffen has submitted for publication on this blog an essay he wrote on “cultural competence” following the Trayvon Martin case. In short, he said many lawyers weren’t sufficiently attuned to racial considerations. This essay was followed not many days later by an order in which the judge said he’d take over jury voir dire, or questioning, in the Hastings case and that race could not be used to bar jurors from serving. He suggested that blacks had been removed by peremptory defense challenges for racial reasons in the first trial and that the prosecution had fallen short in not objecting to this pattern. All this prompted fierce objections in filings today.
Here’s James’ motion for the judge to disqualify. The motion said Griffen had been outspoken about Little Rock police use of firearms against minorities; that he “proudly displayed” on his personal Twitter account the contempt citations for speaking out he’d received at various times ; that he took questioning of jurors away from the defense, in violation of the law; that he’d indicated during the first trial that he thought the defense had had racial motivation in juror strikes, and that he’d written that the George Zimmerman case was wrongly decided. Given that and his order not to have that happen in this case, indicates the judge desires “a certain outcome,” James wrote.
James in another motion said he’d received an anonymous tip that, during seating of a new jury panel from which potential jurors for the next Hastings trial will be drawn, Griffen had read Bible verses and had asked the potential jurors to take an oath that they would “fight racial prejudice.” James said religious instruction was not permissible and the injection of the racial oath, in context with other things Griffen had done, amounted to an improper instruction to reach a particular verdict in the Hastings case.
The prosecution objected to the judge’s plans for jury selection, too. Deputy Prosecutor John Johnson argued that the prosecution had carefully considered whether race had motivated defense challenges in the first trial and decided other factors were at issue. Here’s the full motion. He said, too, that the judge had injected the appearance of “impropriety and bias” into the trial. Johnson noted that the judge himself had dismissed some potential minority jurors during the selection process and had taken no notice of non-racial reasons why some jurors weren’t selected, including illness, refusal to answer questions and an arrest record.
Johnson cited the judge’s long published record of opinion on racial issues in law. He did not call for the judge’s disqualfication, but he did ask him to reconsider his decision to take over jury questioning because of the appearance that:
a) the Court believes that race and prejudice is a central issue in the case before it,
b) the Court has in mind what the racial makeup of a fair jury should be in a case in which the Court believes race is an integral component,
c) the Court believes that to pick a jury one must be trained in “Cultural Competence,” and
d) the Court is taking over voir dire because it appears to believes that the State is culturally incompetent.
The State further objects to this procedure because coupled with the Court’s apparent above opinions and statement that the cases involving race should be “prosecuted by lawyers who are culturally competent,” that the Court gives the appearance of being an adversary to the defendant.
The State objects to this procedure because it gives the appearance that the Court has an opinion about what the proper outcome in this case should be and that the only way to achieve the proper outcome is for the Court to become involved in the manner proposed by the Court.
Judges must perform impartially, Johnson noted, and should disqualify if impartiality might reasonably be questioned. He continued:
The procedure proposed by the Court has never been employed by this Court.
If the Court follows through with the proposed procedure for voir dire on a one-time only basis, there will be a reasonable basis to question the Court’s impartiality.
The State recognizes that these are long held beliefs by the Court that existed in the first trial of this matter. The State further believes that the Court both was and appeared to be impartial in the first trial of this matter. However, the State also believes that if the Court follows through with the procedure suggested by the Court, in light of all the factors stated, the Court will no longer appear to be impartial. This appearance of bias by the Court will undermine the confidence in the outcome, whatever that is.
The procedure proposed by the court is improper because in using it the Court has unfettered power to strike from the jury whomever it pleases, for whatever reason it chooses, as many times as it wants because the is no limit on the Court’s strikes for cause.
Griffen will respond. If past is prologue, he’s unlikely to admit error. And it’ll take more than a few words for him not to do so.