Saturday, April 15, 2017

Wendell Griffen's gift to Gov. Asa Hutchinson: Cover for a botched execution process

Posted By on Sat, Apr 15, 2017 at 7:49 AM

click to enlarge GIFT WRAPPED: Judge Wendell Griffen portraying a condemned prisoner on a gurney at anti-death penalty demonstration Friday outside Governor's Mansion. - MITCHELL MCCOY/KARK
  • Mitchell McCoy/KARK
  • GIFT WRAPPED: Judge Wendell Griffen portraying a condemned prisoner on a gurney at anti-death penalty demonstration Friday outside Governor's Mansion.

Circuit Judge Wendell Griffen served Gov. Asa Hutchinson and others a gift on a platter yesterday by participating in a death penalty protest outside the Governor's Mansion roughly an hour after he'd approved an order stopping use of one of three drugs used in executions and thus, effectively, halting six executions still scheduled to begin Monday.

A gift?

The immediate outcry from legislators about Griffen's appearance of partiality provided cover for a rushed execution killing spree that has been bungled repeatedly.

Griffen will in time, come before the state Judicial Discipline and Disability Commission for giving the public reason to think justice is not impartial. I predict he'll be disciplined. I predict he'll object, perhaps in court, to infringement of his 1st Amendment rights. I predict he's gone too far this time and any disciplinary judgment will stand. But forget that for the moment. Here's why:

Gov. Asa Hutchinson's plan to kill eight men in a 240-hour (10-day) span was a bad idea that brought the entire world to our door with microscopes. And it was built, we now know conclusively, on drug dealing by the Arkansas Department of Correction worthy of a street corner junkie. Attorney General Leslie Rutledge was dealt a bad hand, but her defense of the indefensible in every  death case hasn't put a gloss on the state's reputation.

So forget Griffen for a moment. And consider:

* Judge Price Marshall has stayed Jason McGehee's execution. His truncated clemency process violated state law  because he'd have been killed before a mandatory 30-day waiting period after the state Parole Board recommended him for clemency.

* Even the Arkansas Supreme Court — a death-hungry group if there ever was one — yesterday halted the execution of Bruce Ward for a court hearing on his apparently clear mental incompetency. The judgement of his fitness for execution was, by Arkansas law, delegated not to a court or medical authority, but to the director of the state Correction Department. If you can believe it.

* There's the still pending matter of a truncated clemency hearing for Marcel Williams, whose unbelievably tortured childhood wasn't heard as a mitigating factor by the jury that sentenced him to death. A responsible federal jurist, Leon Holmes (nobody's liberal), found the evidence so compelling he thought Williams should get a resentencing. But a  federal law change on capital case procedure brought a reversal of his ruling. And again last week, Williams was denied the opportunity for the Parole Board to hear his full story on account of a shortened hearing process due to the governor's rush to kill. Some of the Parole board might have been moved to mercy. Maybe not. But he deserved the opportunity.

* And then there's the drugs — the three-drug cocktail that has produced botched executions in other states and has not been used before in Arkansas. Much of the sordid business of the state's illicit drug purchases came out in federal court this week.  The story included "donated" drugs from unknown sources with inadequate testing and little assurance of quality. All three manufacturers of the sedative, paralytic and killing drugs used in the process make clear to the world and their suppliers that they don't want the drugs used in executions. And still the Arkansas Department of Correction worked to obtain them and use them for unintended purposes. Officials lied in the process. They may have broken the law, according to a lawsuit filed yesterday by McKesson, a distributor, which doesn't want to be associated with use of a drug for killing.

Here, luck assigned McKesson's case by draw to Wendell Griffen, who's an opponent of the death penalty. He agreed to McKesson's request for a temporary restraining order against use of the paralytic vecuronium bromide made by Pfizer. If that order isn't lifted, the remaining six executions can't take place. The state will be filing an appeal, likely today on an emergency basis.

Meanwhile, Griffen's participation in the case has given cover for dishonest, perhaps illegal actions — over and over — by the state Correction Department, which is supposed to enforce the law fairly.

Those rushing to say Griffen should be impeached (I don't think his actions are impeachable, though they certainly may warrant discipline) should take time to read the court pleadings in this case by powerhouse lawyers from the Quattlebaum firm in Little Rock and McKesson's lawyers in Washington, Covington and Burling.

Here's the motion for a restraining order.

Here's the brief in support of the motion.
I'd urge the hotheads in the legislature to read both and then tell me another judge might not have ruled as Wendell Griffen did. There's a lot of solid law there about the state's repeated deceit and how it applies to a commercial transaction McKesson wanted to rescind against the refusal of the state. There is also the elemental argument that the state never needed to rush these executions. The state is not harmed if due process runs its course in a more deliberate way. What is the legal principle that says the state MUST execute eight men within 10 days (apart from the inconvenience of having to locate fresh drugs)? The legislature can approve an alternative execution method, for one thing. The Death Row inmates have suggested, seriously, a firing squad.

This circus was created by Gov. Asa Hutchinson. A man conscious of state image authorized a killing spree that drew worldwide attention, where a longer process would have gone largely unnoticed. With the world watching, the stage is taken by a rogue Correction Department willing to do anything — law and honesty be damned — to get the killing done. As a bonus, the chief legal officer of the state, Leslie Rutledge, seems wholly unapologetic for any of the sordid details revealed in any of the cases. "Kill them," is her persistent refrain — for the inmate tortured as a child, for he mental incompetent, for those claiming innocence and all the rest. And do it, she says, with deceitfully obtained drugs. She also, now angers  to make the story about Wendell Griffen. He is a handy target both for his poor judgment and, yes, for many, because he is a black man who, in another time, would have been called "uppity."

Griffen screwed up. Don't get me wrong. But perhaps not as a matter of law. And that's the point that should matter when lives are on the line.

In the wings: Federal Judge Kristine Baker who should rule any time this morning on the overarching case to stop all the executions on due process grounds and the possibility of cruel and unusual punishment by critically challenged (and dubiously obtained) drugs.

UPDATE: Judge Baker indeed administered another legal whipping to the state this morning, halting all executions on account of questions about both the lethal injection method and about deprivation of inmates' access to counsel during executions.

Hutchinson, Rutledge and other politicians will undoubtedly be viewed as victims here by the pro-death majority in the state. To them, the Constitution and law counts only situationally.

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