Can a judge be impartial and an activist? Arkansas jurist who halted executions pushes boundaries

An Arkansas judge under fire for participating in a protest against the death penalty the same day he halted the state’s plan to execute several men this month wrote Wednesday that his decision was based on property law, not personal beliefs.

“Property law is property law, no matter whether one supports or is opposed to capital punishment,” Pulaski County Circuit Judge Wendell Griffen wrote of the temporary restraining order he issued. “My job as a judge was to apply property law to the facts presented by the verified complaint and decide whether the medical supplier moving party was likely to succeed on its property law claim for return of the vecuronium bromide.”

Griffen was referring to one of the drugs used in the state’s lethal injection cocktail and efforts by its manufacturer to prevent the state from using it to put the convicted murderers to death.

Griffen’s ruling hadn’t sat well with state officials, and the state Supreme Court vacated his order while also agreeing with Arkansas Atty. Gen. Leslie Rutledge’s request to remove him from capital cases, based on writings and actions that showed the judge to be a strong opponent of the death penalty.

He could also face impeachment by the Arkansas Legislature for his actions, which included a moment during a Good Friday demonstration in which where he lay on a cot to symbolize a man being executed. “In solidarity with Jesus, the leader of our religion who was put to death by crucifixion by the Roman Empire, I lay on a cot as a dead man for an hour and a half,” he wrote.

One of his fiercest critics was Republican state Sen. Jason Rapert, who said Griffen was making a “mockery” of the process.

“He has no regard for the guidelines of the court,” Rapert said. “He probably should not be a judge. If he wants to be an activist, he should probably just go do that.”

Arkansas’ execution plans — it originally planned to kill eight men over 11 days — have put the state at the center of the death penalty debate. Vigils and protests have been regular occurrences in the state capital of Little Rock, and opponents of the death penalty were given a victory Monday when stays were upheld by the courts for two executions scheduled that night.

Two more executions had been scheduled for Thursday night, but the state Supreme Court on Thursday canceled one of them while clearing the way for the other by allowing the state to use vecuronium bromide in its death penalty drug cocktail.

Griffen’s involvement in the protests struck observers as unusual; Arkansas has judicial conduct rules in place that would seem to prohibit his actions based on his position.

The rules say a judge shall not participate in activities that would appear to undermine his or her independence, integrity or impartiality, according to Brian Gallini, associate dean and professor at the University of Arkansas School of Law.

Griffen has a long track record of public statements expressing his opinions, including questioning the use of force in Ferguson, Mo., when a policeman shot and killed Michael Brown in 2014 and statements critical of President Trump.

He has a blog called “Justice is a Verb” that tackles Scripture and current events, and he’s spent time on the air at KABF, a 100,000-watt FM radio station that dubs itself “the Voice of the People.”

He also preaches sometimes at the Little Rock-based New Millennium Church, which was established in 2009 and bills itself as “inclusive, progressive and welcoming followers of Jesus Christ.”

But his post on April 10 was the one that appeared to spark the most outrage.

“While the world meditates about divine love, forgiveness, justice and hope, Arkansas officials plan to commit a series of homicides,” he wrote. “Acting in the name of the empire and operating under the authority of law, they plan to use medications designed for treating and healing disease to kill men who are defenseless because those men were convicted of killing other defenseless people.”

Those who know Griffen weren’t surprised he took a public stand on the issue.

“He is always ready to state his case and stand his ground for what he believes in,” the Rev. Steve Copley said. “He is very sincere, affable and cares about people — regardless of their status in life.”

Copley, board chairman of Faith Voices Arkansas and the Arkansas Coalition to Abolish the Death Penalty, first met Griffen more than 20 years ago at an interfaith conference. He considers him a close friend and an ally on issues of social justice.

He said that Griffen has never believed his role as a judge precluded him from having deeply held convictions and expressing them publicly and that he wasn’t surprised to see him at the rally in Little Rock on Good Friday.

Rutledge, in the court filing, argued that that act alone should have precluded him from issuing the temporary restraining order.

Rutledge, in the request for the state Supreme Court to vacate the order, wrote: “Judge Griffen has demonstrated that he is unlikely to refrain from actual bias regarding the matters related to the death penalty, and at a minimum, he cannot avoid the appearance of unfairness and his impartiality might reasonably be questioned.”

Michael Gerhardt, constitutional law professor at the University of North Carolina, said that Griffen’s public actions struck him as “unusual” and that judges are required to adhere to judicial codes to maintain an appearance of impartiality.

“He is entitled to a private life and his opinions,” Gerhardt said. “But the code of ethics don’t shut off when he goes home.”

Griffen has argued otherwise in the past.

Griffen made judicial free speech a part of his campaign while running for a seat on the Arkansas Supreme Court in 2006, a race he lost to Paul Danielson by 15 percentage points. He had lost a previous bid to sit on the high court before being elected to the Pulaski County Circuit Court seat in 2010 with 51% of the vote.

He made his case to those points again when he wrote about his ruling in a blog post published on Wednesday.

“Whether I attended the Good Friday vigil or not does not change property law. Whether anyone approves or disapproves of me attending the Good Friday vigil does not change property law,” he wrote. “Whether I support or am opposed to capital punishment does not change property law. I am entitled to practice my religion — whether I am a judge or not — even if others disapprove of the way I practice it.”

david.montero@latimes.com

Twitter: @davemontero

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UPDATES:

April 20, 3:40 p.m.: This story has been updated to reflect the state Supreme Court’s ruling canceling one of two executions planned Thursday night while clearing the way for the other.

This story was originally posted April 19 at 1:35 p.m.