THE ROOT CAUSE: Wendell Griffen's role in a protest in 2017 continues to cause controversy.

We reported earlier that Circuit Judge Wendell Griffen had declined to get off a capital case pending in Pulaski County despite a Supreme Court order barring him from hearing capital cases.

The prosecuting attorney’s office said it had no doubt about Judge Griffen’s impartiality, but said it would likely appeal his ruling on account of the standing Supreme Court order.

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The state of Arkansas, through the attorney general’s office, filed that appeal today and it was deeply personal.  It said Griffen “has shown that he cannot be remotely impartial when it comes to the death penalty.” It cites no evidence for that, except for his ruling in a property law case that a drug distributor had properly argued the state couldn’t use one of its (shadily obtained) drugs for executions. He did NOT, as the state’s pleading reads, issue an order halting executions. His order had the effect of altering execution schedules because the state didn’t have a supply of other drugs. Another judge subsequently heard the same case and issued the same ruling.

The state also commented in reciting the history of Griffen, death penalty cases and the Supreme Court:

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Judge Griffen has chafed under this restriction of his power and has thrown everything at the wall in an attempt to undermine it, from frivolous ethics complaints against the Justices of this Court, to an equally meritless federal lawsuit accusing this Court of violating his constitutional rights, and a procedurally improper petition in this Court asking to reinstate his power to hear death-penalty cases. Unfortunately for Judge Griffen (and fortunately for the people of Arkansas), nothing he has thrown has stuck. Still unsatisfied with his lot, Judge Griffen has abandoned all semblance of respect for the rule of law and has decided to flagrantly disregard this Court’s order removing him from death-penalty cases.

You can read it all here.

The Arkansas Supreme Court made a mistake, I still believe, in responding in ex parte fashion to Republican legislative hysteria after Griffen’s ruling in the execution drug case by issuing the order removing him from death penalty cases. Griffen contributes to his problems by a penchant for constitutionally protected free speech, including joining church members at a Good Friday demonstration outside the Governor’s Mansion on the day of execution drug ruling. Some people there criticized the death penalty. Griffen lay on a cot in a manner some took to be emulating a condemned person, but which he said represented the crucifixion.

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It is true that Griffen is a death penalty opponent. But it is also true, as he has noted, that death penalty opponents may NOT be excluded from juries if they were willing to fairly carry out the law, as he says he is.

Attorney General Leslie Rutledge wants him off all capital cases forever.  Her office has many bones to pick with Griffen, including some strict treatment of a lawyer Griffen found poorly prepared in another case. But if there’s one political rule at work here it’s this: No Arkansas Republican ever lost ground at the polls for criticizing an outspoken black man for defending his rights.