Outside counsel to handle dueling judicial ethics complaints, politics remain | Arkansas Blog

Wednesday, May 31, 2017

Outside counsel to handle dueling judicial ethics complaints, politics remain

Posted By on Wed, May 31, 2017 at 7:19 AM

The state Judicial Discipline and Disability Commission announced in a news release that staff attorneys, on the advice of an ethics expert would not handle investigations of complaints against Circuit Judge Wendell Griffen and the Arkansas Supreme Court.

Griffen was referred to the Commission for review by the Supreme Court for participating in a death penalty demonstration outside the Governor's Mansion the same day he decided a case over a drug distributor's effort to reclaim drugs sold to the state Correction Department under false pretenses by the state.

Griffen in turn complained that the Supreme Court had acted improperly in the handling of his case by overturning his order without a hearing and having ex parte communications on the matter.

The Commission will choose special counsel for the cases.

The recusal decisions by Director David Sachar and his deputy, Emily White, came on advice of Howard Brill, the University of Arkansas law professor who recently served a stint by appointment as chief justice of the Arkansas Supreme Court.

The action had been expected because of the complication of related cases before different panels of the Ethics Commission in which Judicial Discipline staff potentially could be witnesses. Also, though the Commission is independent, it communicates regularly with the Supreme Court.

Brill said that the "sharply conflicting allegations and the scope of the potential charges would like make an investigation lengthy and difficult." It would include interviews with the Supreme Court and others and participants in conflicting allegations would put the staff "in a potential conflict of interest," he wrote


The Commission includes judges, lawyers and public members.

Politics are involved. Three judges are named by the Supreme Court. Three lawyers are named by politicians — attorney general, president of the Senate and House speaker. Three are appointed by the governor and must not be lawyers or judges. The background on appointees is likely why Mike Laux, Griffen's attorney, commented on Twitter:

"Recusal was prudent, to be sure, but whether true impartiality can be achieved here remains to be seen."

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