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6 Arkansas Supreme Court justices charged over case involving judge who protested death penalty

by John Moritz | September 21, 2018 at 4:30 a.m.
Pulaski County Circuit Judge Wendell Griffen lies on a mock gurney during a protest against the death penalty outside the Governor’s Mansion on April 14, 2017, the same day he issued an order that temporarily halted state executions.

Six of the seven members of the Arkansas Supreme Court were formally charged Thursday with violating the state's judicial canons, an unprecedented action that stemmed from a complaint filed by Pulaski County Circuit Judge Wendell Griffen.

The justices are accused of failing to provide "sufficient" chance for Griffen to defend himself as they weighed whether to remove him from all cases involving the death penalty. Griffen's subsequent removal stemmed from his participation in a public protest against executions.

David Sachar, the executive director of the Arkansas Judicial Discipline and Disability Commission, said it was the first time in the 30-year history of the commission that formal charges of ethical misconduct were brought against any member of the state's highest court, let alone multiple members.

Chief Justice Dan Kemp, one of the six justices charged Thursday, declined to comment on the case.

The other justices who were charged Thursday are Robin Wynne, Courtney Goodson, Josephine "Jo" Hart, Karen Baker and Rhonda Wood.

The justices will have 30 days to respond to the allegations made by the commission's investigative panel, and they are entitled to a hearing before the commission if the charges stand.

The only justice not charged by the commission Thursday was Justice Shawn Womack.

Griffen's complaint against Womack is still pending, according to Sachar, who has recused from the case. Sachar said he did not know the reason why Womack's case was still pending.

If found to have violated the judicial canons, the justices could face a broad range of punishments. Those include lesser sanctions, such as an admonishment or reprimand, as well as a possible recommendation for suspension or removal from the bench.

Any such recommendation and appeals must be reviewed by the Supreme Court. In this case, a review by the Supreme Court would require the justices to recuse and be replaced by a panel of special justices appointed by the governor.

"Today's decision shows that Judge Griffen's complaints clearly have merit," said the circuit judge's attorney, Michael Laux, in an email. "So, there are many implications created here, and we are cautiously optimistic as we continue to digest the decision which, along with Judge Griffen's federal action, has many moving parts."

Griffen attracted a whirlwind of attention in April 2017, when he issued an order that temporarily halted the state's plans to carry out executions, and that same day he participated in a public protest against the death penalty. The protest was held in front of the Governor's Mansion.

Griffen's order, which demanded that the state refrain from using one of the three drugs needed for lethal injections, was filed on a Friday afternoon, on April 14, 2017.

The next morning, Arkansas Attorney General Leslie Rutledge filed a request with the Supreme Court to vacate Griffen's order.

In her request to the high court, Rutledge said Griffen "cannot be considered remotely impartial on issues related to the death penalty." She asked that Griffen be removed from the pending case.

The clerk of the Supreme Court emailed Griffen's office late Saturday afternoon, on April 15, 2017, about Rutledge's request, notifying him that he had until 9 a.m. Monday to respond if he wished to do so.

Griffen did not respond by the Monday morning deadline, according to the commission's allegations.

By 10:30 a.m. that Monday, the Supreme Court ordered Griffen stripped of his authority to hear any cases involving the death penalty. (Kemp, the chief justice, indicated in a separate opinion that he would only have removed Griffen from cases pending at the time, not future cases.)

Later that day, the high court also overturned Griffen's order. A few days later, the state carried out its first execution in more than a decade.

Explaining the allegations against the justices, commission special counsel J. Brent Standridge wrote: "It cannot be reasonably assumed that Judge Griffen would receive the email at his chambers address on a weekend. Judge Griffen could not have reasonably been expected to have effectuated a meaningful response to the state's petition to remove him from [the case].

"Further, Judge Griffen was never given notice of, and the opportunity to be heard on, the Supreme Court's ultimate action -- the removal of Judge Griffen from all death penalty and execution protocol cases pending and in the future."

In his complaint against the justices, Griffen also alleged that they had engaged in improper out-of-court communications with the attorney general's office. However, an investigative panel on the commission did not find probable cause that any such communications exist and dismissed the complaint.

A spokesman for Rutledge declined to comment on the charges filed against the justices.

In addition to his complaints against the justices, Griffen faces his own pending charges related to his decision to publicly protest the death penalty. He has also sued the state's justices in federal court, alleging that they violated his civil rights, though that case was dismissed by U.S. District Judge James Moody.

In August, the Arkansas Times reported, Griffen sought to replace Standridge, the special counsel investigating his complaints, claiming through his attorney that Standridge had failed to collect evidence or interview the Supreme Court justices. Griffen, who is also a pastor at Little Rock's New Millennium Baptist Church and a blogger, has said his decision to protest the death penalty is protected by free speech and religious liberty. He's also claimed that the investigations into his actions are influenced by racial animus. Griffen is black.

Laux, Griffen's attorney, said via email that his concerns about Standridge's investigation remain valid.

Standridge, an attorney from Benton, was hired by the commission to investigate Griffen's claims in July 2017 after both of the commission's full-time investigators recused. Rachel Michel, of the Mississippi Commission on Judicial Performance, was hired to investigate the claims against Griffen.

The court provided a response to Griffen's claims, according to the statement drafted by Standridge, though the response was not a matter of public record, Sachar said.

Photo by Special to the Arkansas Democrat-Gazette
Chief Justice John Dan Kemp
Photo by Special to the Arkansas Democrat-Gazette
Associate Justice Karen R. Baker
Photo by Special to the Arkansas Democrat-Gazette
Associate Justice Robin F. Wynne
Photo by Special to the Arkansas Democrat-Gazette
Associate Justice Courtney Hudson Goodson
Photo by Special to the Arkansas Democrat-Gazette
Associate Justice Rhonda K. Wood
Photo by Special to the Arkansas Democrat-Gazette
Justice Josephine “Jo” Hart
Photo by Special to the Arkansas Democrat-Gazette
Associate Justice Shawn A. Womack
Photo by AP file photo
David Sachar, the executive director of the Arkansas Judicial Discipline and Disability Commission, is shown in this file photo.

A Section on 09/21/2018

Print Headline: 6 Arkansas Supreme Court justices charged over case involving judge who protested death penalty

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