A panel of the state Judicial Discipline and Disability Commission has found probable cause for an ethics charge against Circuit Judge Wendell Griffen arising from his participation in a death penalty demonstration the same day he decided a case related to a drug used in executions.

If the Commission upholds the charges, punishment ranges up to removal from office.

UPDATE: A response from Griffen’s lawyer, Michael Laux:

Judge Griffen and his counsel can only shake their heads at today’s JDDC announcement.

Special counsel in charge of the JDDC case against Judge Griffen told me nearly a month ago that the investigation was complete and charges against Judge Griffen would be approved. She asked if I would accept service on behalf of Judge Griffen, which I agreed to do. When I subsequently questioned counsel about major issues with her review, and the lack of effort I perceived attending to this review, she quickly became hostile and hung up on me, causing me to memorialize on May 16 our discussion via email to her. The attached emails reflect these email communications.

The JDDC, through special counsel, then proceeded to keep Judge Griffen and his counsel in a holding pattern for several weeks before dropping its late Friday afternoon bombshell press release today with no meaningful notice to Judge Griffen or his counsel. This is a deliberate and unfair sandbagging. It is a brazen show of utter disrespect to Judge Griffen.

One of the many tragedies of false claims of “slanted, fake investigations” and “witch hunts” currently emanating from the top is that such self-serving smoke screens trivialize the prevalence and significance of truly partial and vindictive investigations that plague too many majority/minority jurisdictions. Judge Griffen is one of those victims. We will have more to say on Monday.

Here are the emails Laux referenced.

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Background:

Griffen decided in favor of a drug distributor, McKesson, on a property rights question. It wanted to stop the state of Arkansas from using drugs obtained by deceit for executions. It doesn’t want drugs used for that purpose and explicitly says so.

Griffen ruled the same day he participated in a demonstration on Good Friday at the Governor’s Mansion. He lay strapped to a cot, which he said was meant to illustrate the crucifixion, but which others interpreted to represent an execution. Others at the demonstration were demonstrating against the death penalty, which Griffen himself opposes. He also attended an anti-death penalty rally that day.

The investigative panel noted Griffen’s frequent statements against the death penalty and expressed skepticism about his explanation of his appearance on the cot. None of the photos it reviewed contained a visible reference to Jesus or the execution, the panel said.

The panel concluded that while the judge has a right to free speech, once he “asserted his free speech in unequivocal opposition to the death penalty, he had an obligation to disqualify himself in every case effecting [sic] the death penalty.”

The panel said Griffen’s conduct was conduct prejudicial to the administration of justice and serious enough, if proven, to result in punishment up to removal from office.

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The panel that recommended the charge comprised Circuit Judge Mark Lindsay, Fort Smith lawyer Rex Terry and Kevin White, a state employee appointed by Gov. Asa Hutchinson.

Rachel Michel, a Mississippi judicial regulator, investigated the case as special counsel because of recusal of Commission staff, which figures in this and a related investigation.

With the filing of the charge, Griffen can argue that the charge should be dismissed on First Amendment ground, for which there’s significant support in federal court precedent. Other members of the Commission will hear that. If that fails now ask for a trial before another panel of the Commission.

Here’s the full complaint.

A separate special counsel investigation continues by complaints from Judge Griffen on the Supreme Court’s handling of the case.