U.S. justices decline challenge by Arkansas judge barred from hearing death-penalty cases

Pulaski County Circuit Judge Wendell Griffen lies on a cot in the role of a condemned prisoner awaiting execution during a protest outside the Governor’s Mansion in April 2017.
Pulaski County Circuit Judge Wendell Griffen lies on a cot in the role of a condemned prisoner awaiting execution during a protest outside the Governor’s Mansion in April 2017.

Pulaski County Circuit Judge Wendell Griffen's attempt to regain jurisdiction over death-penalty cases ended Tuesday at the U.S. Supreme Court when the nation's justices declined to consider his challenge to the ruling that bars him from presiding over capital-murder proceedings.

Griffen, 66, had sued in federal court to regain that authority, but a U.S. district judge in Little Rock and then the 8th U.S. Circuit Court of Appeals rejected his arguments. He petitioned the Supreme Court to consider his case in December. In typical fashion, the federal justices' decision on Tuesday to reject him did not state a reason.

The seven justices of the Arkansas Supreme Court stripped Griffen in April 2017 of the authority to hear capital-murder cases or any litigation related to the death penalty. He then sued to overturn that ban.

The state justices did not state any reason for the decision, but the move came three days after Griffen, in his capacity as a Baptist minister, participated in a death-penalty protest at the Governor's Mansion. The same day, he had presided over a lawsuit in which he barred prison authorities from using an execution drug, the ownership of which was in dispute.

Griffen complained that the state high court's ruling violated his due-process, religious and free-speech rights, since the justices acted without warning and did not give him a chance to defend himself. He filed his federal First Amendment lawsuit against the seven justices six months later.

The justices and Griffen also brought dueling ethics complaints to state judicial regulators. A recommendation that the justices face ethics charges was rejected by the Judicial Discipline and Disability Commission in November, but the complaint against Griffen is proceeding. Potential sanctions include being stripped of his judgeship.

A former state Court of Appeals judge, Griffen was elected to the 6th Judicial Circuit of Perry and Pulaski counties in 2010. He returned to the bench in an unopposed election in 2016.

In April 2017, Arkansas was preparing to execute seven convicted killers in two weeks before a portion of its supply of lethal-injection drugs expired. Ultimately, four men were put to death over eight days -- Jack Jones, Ledell Lee, Kenneth Williams and Marcel Williams -- in the first executions in 12 years.

Griffen was outside the Governor's Mansion for a Good Friday prayer vigil with members of his New Millennium Church. He was photographed with protesters standing next to him as he lay on a cot with ropes around him. He later said he was portraying the crucified Jesus Christ. Some spectators speculated that Griffen, dressed in white, was emulating a condemned prisoner awaiting lethal injection.

Almost simultaneously, Griffen temporarily blocked prison authorities from using the paralytic portion of the lethal-injection protocol in response to a lawsuit filed by the drug's supplier that accused the state of acquiring the chemicals under false pretenses and then refusing to fulfill a promise to return them.

Griffen's order barred the state from using the drug until a hearing on the issue, which was scheduled for four days later, but that delay would have prevented one execution and could have thrown off the timetable for carrying out the remaining executions before some of the drugs expired.

Attorney General Leslie Rutledge petitioned the Arkansas high court to nullify Griffin's ruling, which it did at its first opportunity. She complained in court filings that "Judge Griffen cannot be considered remotely impartial on issues related to the death penalty" and "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."

The high court issued a separate order barring Griffen from considering any case that involves the death penalty.

"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 [Griffen] cases ... that involve the death penalty or the state's execution protocol, whether civil or criminal," the high court's order stated.

The justices' decision also caused the drug-supplier lawsuit to be transferred to another judge, who similarly blocked the state from using the drug, although that decision was also overturned by the state high court.

Griffen had not been the only judge standing in the way of the executions. A federal judge had also barred the state from moving forward, but the ban, by U.S. District Judge Kristine Baker, only lasted about 48 hours before it was dissolved by the 8th Circuit, acting on the same day the state high court moved against Griffen.

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staton breidenthal

Arkansas Democrat-Gazette/STATON BREIDENTHAL --10/5/17-- Judge Wendell Griffen.

A Section on 02/20/2019

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