Circuit Judge Wendell Griffen ruled today that he had no choice based on  a past Arkansas Supreme Court decision  but to dismiss a lawsuit by Death Row inmates seeking to challenge the constitutionality of the state’s lethal injection process.

But the judge did so unhappily with sharp criticism of the Arkansas Supreme Court for failing to address critical points raised in the lawsuit. “Troubling,” “shameful,” “travesty of justice” and “damnable” were words he used in describing his dilemma based on Supreme Court precedent


Nine inmates had sued to challenge the constitutionality of the process, raising questions about the efficacy of the anesthetic, midazolam, used in the process and asking whether alternative methods might be less painful.

Griffen had issued an order delaying the executions so a trial could be held on the arguments. But the Supreme Court reversed Griffen and dismissed the lawsuit. The inmates filed an amended complaint, which was dismissed today by Griffen.


He said the Supreme Court’s dismissal, with prejudice, ended his jurisdiction. Simply put, he said, the Supreme Court has decided plaintiffs aren’t entitled to a trial on their criticism of midazolam and also aren’t entitled to know the supplier of the drug. He also commented that the court, in a decision that is “both plain and troubling,” had held that the inmates are not entitled to a trial on whether the three-drug execution protocol will subject them to severe pain and suffering.

Griffen said he had no choice but to abide by that ruling. But he said he was “troubled” because plaintiffs had supplied expert testimony to support their allegation about the drug. The state has not offered testimony in rebuttal that could have been considered together with it.


Griffen quoted from a Sherlock Holmes story about how a “capital mistake” is made — to theorize before one has data and to twist facts to suit theories. “The decision in Kelley v. Johnson not only shows how such a ‘capital mistake’ can occur. It ironically, and tragically, presents that ‘capital mistake’ in a case involving the administration of capital punishment in Arkansas for eight condemned murderers in this instance, but also for every other execution in which the MOE [method of execution] mandated by [Act] 1096 will be administered in the future.”

Until now, Griffen said, judges have understood that evidentiary hearings were fundamental to fairness. He recited from the oath taken by lawyers about pursuit of justice.

In view of the oath, he said, it is “troubling, to say the least,” that the process isn’t being followed in this case. “It is more than troubling that Arkansas judges must now deny persons sentenced to death by lethal injection a fair and impartial evidentiary hearing concerning their allegations that the state of Arkansas intends to subject them to an execution process which they allege will involve demonstrable risk of severe pain. It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state.”

He concluded:


As such, it is more than troubling, and more than shameful. It amounts to theft of the rights guaranteed by the Constitution of this state and the Constitution of the United States to a trial. To think that the highest court in Arkansas would compel every other court in Arkansas to steal the last right condemned persons have to challenge the constitutionality of their execution illustrates the travesty of justice, and the damnable unfairness, this Court is powerless to prevent.

The inmates are raising some of the same issues in a federal court suit filed this week.

It might be worth noting that another lower court’s criticism of the Supreme Court — by Pulaski Circuit Judge Tim Fox — got him in hot water with the justices. There may be further salvos in this case, if the opportunity presents. It could be soon. An attorney for the inmates said he’d appeal Griffen’s decision to the Supreme Court.