Josh Hastings’ defense attorneys are making too much out of a simple mistake, Circuit Judge Wendell Griffen stated Wednesday in an order declining to step down from presiding over the fired Little Rock police officer’s manslaughter retrial next week.
The recusal request from attorney Bill James was based on a single email to prosecutors by the judge’s law clerk on his behalf questioning whether the defense had met deadlines to turn over information about an expert witness.
James initially questioned Griffen’s impartiality in the case in his first recusal motion last month, citing the judge’s personal writings about race relations and law enforcement. James, as well as the prosecution, also objected to Griffen’s decision to take over much of the jury-selection process.
In this second recusal request, filed Tuesday, James claimed the email raised further questions about whether the judge could be impartial.James argued that communicating with only one side of the case was a violation of the Arkansas Code of Judicial Conduct.
But Griffen, in a five-page order Wednesday, wrote that James had been accidentally excluded from the email. It was a harmless mistake that, even if intentional, would still not be a rules violation, the order states.
“The court’s law clerk obviously failed to copy counsel for defendant on the email inquiry to counsel for the state. It is equally obvious that the omission was harmless,” Griffen wrote.”The state gained no procedural, substantive or tactical advantage from the communication. The recusal motion seeks to transform the law clerk’s harmless failure … into a challenge to the court’s impartiality and integrity.”
The defense’s two recusal motions have not shown any proof the judge has acted unfairly or that he has exceeded his authority under the law and court precedent, the ruling states.
Griffen’s inquiry about the defense witness falls under his duties as described in the the Arkansas Code of Judicial Conduct, which requires the judge to ensure that both sides are complying with the discovery procedure that requires them to share evidence, the ruling states.
Judicial conduct rules discourage judges from communicating with only one party in a case and forbid any communication outside of the courtroom that gives one side any kind of advantage.
But those rules do allow judges to inquire about administrative and scheduling issues, which is what the email in question was attempting to resolve, Griffen’s order states.
For the email to have been improper, the judge wrote, prosecutors would have had to gain some advantage from it.
The order closes with the judge’s suggestion that James’ recusal requests are really about the defense’s dissatisfaction with the judge’s rulings on evidentiary issues and jury selection.
“Defendant and his legal team have made clear their disagreement with and disappointment,” the order states. “Nevertheless, the fact that a judge issues rulings with which a party disagrees - even fiercely - does not mean the judge is biased or prejudiced against the disappointed party and his legal team.”
Hastings’ second trial begins Monday and is scheduled to last three weeks. His first manslaughter trial in June ended with a mistrial.
Hastings fatally shot 15-year-old Bobby “Weedy” Moore III last year while investigating a complaint about vehicle burglaries at a west Little Rock apartment complex. Moore was driving a car that Hastings said was going to run him over and that he had to fire his gun to save his life. Hastings was fired from the force and charged with manslaughter after a police investigation contradicted his version of events. Prosecutors contend the car was either stopped or in reverse when Hastings shot the teen.
Arkansas, Pages 7 on 09/12/2013