"To protect the integrity of the judicial system, this court has a duty to ensure that all are given a fair and impartial tribunal. We find it necessary to immediately reassign all cases in the Fifth Division that involve the death penalty or the state's execution protocol, whether civil or criminal."
--Arkansas Supreme Court
But of course the state's highest court would strip his Hon. Wendell Griffen of his authority to preside over death penalty-related cases. It doesn't take a legal eagle to see a conflict. It's in all the papers. Judge Wendell Griffen well-nigh advertises his conflicts.
Judge/Rev./DJ Wendell Griffen ordered a temporary restraining order last Friday to keep the state from using a particular drug in executions. That was the same day he was photographed at an anti-death penalty protest at the Governor's Mansion. And he didn't just attend the demonstration, which would have been conflict enough for a sitting judge. He participated. He was photographed lying on a cot with ropes wrapped around him as if he were on a gurney awaiting the needle. As a matter of performance art, especially as the state rushes to execute as many men as it can before the clock strikes midnight, this was at least in poor taste.
(The good judge now says he wasn't acting the part of a condemned man in Arkansas, not at all. But of a crucified Jesus on Good Friday.)
But of course the state's highest court would overturn Wendell Griffen's restraining order. Could it be otherwise?
According to dispatches, the high court's decision also triggered an ethics investigation by the Judicial Discipline and Disability Commission. But of course.
Just as with commissioned officers in the military, who also take an oath, judges don't stop being judges when they step out of uniform. Or even when they retire. Which is why generals are called generals and judges are called judges deep into retirement. When needed in a crunch, both can be asked to come back to do their duty again. Unlike presidents, who stop being presidents forever when the next one takes over.
Not that it takes somebody on the level of the attorney general of Arkansas to figure this out, but, for the record, there is this from her office: "Judge Griffen cannot be considered remotely impartial on issues related to the death penalty" and he "has demonstrated that he is unlikely to refrain from actual bias regarding matters related to the death penalty, and, at a minimum, he cannot avoid the appearance of unfairness and his impartiality might reasonably be questioned."
Which sums up the whole affair neatly. We've had our disagreements with Leslie Rutledge over the last few weeks when it comes to the conveyor belt that is this state's Death Row, but on this our attorney general is right. Wendell Griffen has proven himself a more than able judge over his many years on the bench, but knowing the law isn't the question here. It's the appearance of a conflict. When it comes to bias, judges should be as Caesar's wife: above suspicion.
It's hard for a judge to do that while posing for unbefitting pictures at a protest.
Our very activist judge says he has a First Amendment right to speak. And he certainly does. Around these offices, the First Amendment is near and dear to our inky hearts. But the First Amendment doesn't mean a body doesn't have to take the consequences for what he does or says.
No officer is going to show up and write Judge Griffen a ticket for attending the anti-death penalty vigil. He'll not have to pay a fine or go to prison. (What a country! What a Constitution! How about that James Madison!) But that doesn't mean a judge who participates in a protest about some matter won't be taken off cases by a higher court trying to maintain the integrity of the judiciary.
Wendell Griffen can continue to write his blog. And co-host his radio show. And protest at vigils. But it might affect his day job. And has this time.
In recent blogs, Judge Griffen has taken on police shootings, racial bias, inequality, Little Rock schools and even the Israel-Palestinian conflict. We don't know if he'll ever get a case out of Gaza, but it's clear that anybody before his court dealing with police shootings, racial bias or Little Rock schools would have a reason to seek his recusal.
But of course.
There's already talk about the possibility of impeachment. (That didn't take long.) The papers have quoted a few in the Ledge who are mulling over the possibility. But no judge has ever been impeached under the state's 1874 constitution.
"We are going to look at the process and procedures that would be utilized if the chamber opted to go down that path," said the speaker of the Arkansas House.
Our considered editorial opinion: Let's not.
Judge Griffen may be in the wrong branch of government, but that doesn't mean another branch should get involved. (Two wrongs and all that.) The courts can be safely left to handle their own. As the judicial branch did this past week.
Editorial on 04/22/2017