Pulaski County Circuit Judge Wendell Griffen is headed toward another conflict over the death penalty with the Arkansas Supreme Court at the behest of Attorney General Leslie Rutledge.
The high court barred Griffen from presiding over matters involving the death penalty nearly three years ago, but in the past week Griffen has been assigned two capital-murder cases.
There is still a question of whether the death penalty is in play, however. Prosecutors have not decided on whether they'll seek execution in either case, but objected to Griffen presiding out of fear of running afoul of the high court's April 2017 order in some manner, possibly even jeopardizing a conviction on appeal.
Griffen denied their request two weeks ago in a ruling that stated that he was ethically obligated to retain jurisdiction once the cases were assigned to his courtroom.
With both prosecution and defense hailing him as a fair and impartial judge, Griffen noted the high court has never ruled that a judge or juror could be disqualified for holding moral or religious objections to capital punishment.
He further observed that the U.S. Supreme Court has held for more than 50 years that a defendant's right to a fair trial is violated when potential jurors are screened for their feelings about capital punishment. That standard also should apply to judges, Griffen stated.
Rutledge, the term-limited Republican attorney general, filed paperwork Thursday to take prosecution concerns to the Arkansas justices. The court has given no indication on when it will rule.
Represented by Solicitor General Nicholas Bronni, his deputy general Vincent Wagner and assistant general Dylan Jacobs, Rutledge is calling on the high court to immediately intervene and stop him.
The justices have never explained their reasoning for stripping Griffen of authority over death-penalty cases, even civil proceedings, but Rutledge's petition said the order shows the high court deemed him prejudiced against execution.
"Judge Wendell Griffen has been disqualified from hearing cases involving the death penalty, including capital murder cases ... because he has shown that he cannot be remotely impartial when it comes to the death penalty," the petition states.
"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. He has decided it is permissible for him to preside over capital murder cases ... because notwithstanding this Court's order to the contrary, requiring his reassignment would violate both the defendant's right to a fair trial and Judge Griffen's constitutional rights."
The high court's order came just as the state was preparing for its first executions in 12 years and came just after Griffen attended a prayer-vigil demonstration over the death penalty with members of the church he pastors.
Simultaneously, he issued an order temporarily barring prison administrators from using the execution drug vecuronium bromide after its manufacturers filed suit to dispute that the state had legally purchased the muscle relaxant.
The high court immediately overturned Griffen's order, although a second judge assigned to the lawsuit also blocked the drug's use in a decision that was also overruled by the justices.
The petition describes Griffen's "antics," stating that the justices disqualified him on Rutledge's motion.
"This Court agreed that Judge Griffen is incurably prejudiced against the death penalty such that he cannot be allowed to preside over cases involving it," according to the petition. "Suffice it to say, if left to his own devices, Judge Griffen will now once again preside over capital murder cases despite this Court's order disqualifying him from doing so."
The petition also notes a blog post Griffen wrote a few days before the demonstration, describing him as "lambasting" the death penalty. In the April 10, 2017, post Griffen is said to describe the then-pending executions as "a series of morally unjustified and unjustifiable killings" that would "be a new, and permanent, moral injury ... [and] will join the existing long list of atrocities, oppression, and other moral injuries associated with our state to cause people around the world to associate Arkansas with bigotry, hate, and other forms of injustice as long as human memory continues."
Last year, Rutledge went to the high court requesting that Griffen be barred from hearing litigation involving her office, complaining that Griffen was biased against her lawyers and regularly rude to them. The court ruled against her in a 4-3 decision in December.
She petitioned the high court after Griffen ruled against her in a Medical Marijuana Commission case. The attorney general accused Griffen of displaying a "pattern and practice of injudicious conduct" toward her office.
Griffen acknowledged that he has a reputation for toughness but denied mistreating any attorneys who have come before him.