Judge Griffen argues for dismissal of ethics case | Arkansas Blog

Friday, August 17, 2018

Judge Griffen argues for dismissal of ethics case

Posted By on Fri, Aug 17, 2018 at 4:07 PM

LET GRIFFEN BE GRIFFEN: So argued the judge in seeking dismissal of ethics charges stemming from this demonstration.. - BRIAN CHILSON
  • BRIAN CHILSON
  • LET GRIFFEN BE GRIFFEN: So argued the judge in seeking dismissal of ethics charges stemming from this demonstration..

Circuit Judge Wendell Griffen made his argument today before the Judicial Discipline and Disability Commission that ethics charges against him related to a death penalty protest should be dismissed on 1st Amendment grounds. He said it was a case "about optics, not ethics."

The commission took the matter under advisement following an hour-long hearing, but had not ruled by late in the afternoon. A decision isn't expected until next week at least. The full nine-member Commission heard the case — Judge Kirk Johnson, Judge Tommy Fowler, Judge Lee Harrod,  Attorney Brett McDaniel, Attorney Tommy Williams Attorney Chris Gardner, John Paul Wells (an alternate sitting for Maxine Allen, who recused), Sam Seamans and  Phillip Blankenship.

Griffen participated in a demonstration against the death penalty outside the Governor's Mansion on Good Friday along with members of the Baptist church he pastors. He lay on a cot, appearing to some to represent an inmate prepared for execution, but he said representing the crucifixion.

He was photographed later in the day in which he'd ruled that a drug distributor had made a valid argument for return of drugs in possession of the Correction Department for execution. The companies said the drugs are not intended for use in executions and the state had obtained them dishonestly. His ruling had the effect of disrupting planned executions and there was a political outcry.l

In arguing for dismissal of the charge that he'd presented an appearance of partiality, Griffen's attorney Austin Porter Jr. noted that another judge had decided the same case without complaint. He said that made the complaint against him about his opposition to capital punishment not whether he followed the law.

He noted that the U.S. Supreme Court says people with religious objections to the death penalty can't be excluded from murder juries. He said the JDDC finding that his opposition to the death penalty disqualified him from participating in any case affecting the death penalty was in direct contradiction to U.S. Supreme Court precedent on murder juries and that a later Supreme Court decision protected judges in extra-judicial speech. Restrictions must be narrowly tailored and advance a governmental interest, the court held.

Griffen contends the case on judges, the Republican Party of Minnesota v. White, was violated by a charge he'd violate rules against the appearance of impropriety. He said a similar case had been dismissed against him 11 years ago for that reason.

Griffen relied on his right to free exercise of religion and quoted law that says only "interests of the highest order" can outweigh free religion claims. His Good Friday religious vigil was protected religious expression, he said.

He emphasized that the McKesson drug case was about a claim of wrongfully possessed property, not legality of the death penalty. He has said he'd always follow Supreme Court precedent, despite personal feelings on capital punishment.

Griffen's lawyer asked "why we are here." He said he has a First Amendment right to extrajudicial speech and religious freedom and 14th Amendment protection against because disqualified on account of moral and religious objection to capital punishment.

He said the Minnesota case made clear an "appearance of impartiality" is not a compelling state interest under Supreme Court law and the commission has not alleged that Griffen had not committed or appeared to commit to a particular result on the McKesson petition for a restraining order against use of its drugs.

He closed by saying the case was about optics, not ethics.

*About political displeasure at the sight of a black pastor laying bound to a cot in front of the Governor's Mansion on Good Friday in a prayerful protest to capital punishment.
*On his own time.
*Bearing no symbols or indicia of judicial office.
*With members of his congregation singing and standing nearby.

The bottom line, he said, is that the 1st Amendment "protects Judge Griffen's freedom to be Reverend Griffen ... to hold moral and religious objections to capital punishment ... to decide cases involving capital punishment while holding those objections."

An account of the hearing by Andrew DeMillo of the Associated Press indicated special counsel Rachel Michel rested the argument for discipline against Griffen (which could range from a warning to removal from the bench) on the state Supreme Court's had removed him from the drug case (in a hasty ex parte proceeding that seemed a response to political outcry from legislators.) That showed an appearance of impartiality, she said. But the court also reversed Judge Alice Gray who made an identical ruling in the case and executions proceeded.

It comes down to this, Griffen indicated. Is the U.S. Constitution the supreme law of the land?

If so, I think Judge Griffen is right.

But as I've said many times before about Griffen, my own idea of judicial decorum is that judges should act in a manner so as to give the public no reason to question their fairness.

But much as I'd prefer circumspection, it is no secret that every judge brings personal beliefs to the bench. Indeed, at the federal level, Donald Trump has promised how they will rule on certain issues. If they deliver, I'm guessing Sen. Trent Garner, a rabid critic of Griffen, will call for their impeachment if they deliver as expected.

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