The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Friday, Arkansas circuit judge Wendell Griffen granted a temporary restraining order barring the Arkansas Department of Correction from proceeding with any executions using vecuronium bromide as a part of its three-drug lethal injection protocol. Within 24 hours, a federal judge issued a separate order likewise barring Arkansas from proceeding to execute anyone via lethal injection. The state had planned to conduct seven executions in a span of 11 days.
Shortly after issuing his order, Griffen joined an anti-death-penalty protest in front of the Arkansas governor's mansion. As one local news channel reported:
After barring Arkansas from executing eight inmates in rapid succession because of a dispute over how it obtained one of its execution drugs, Judge Wendell Griffen went to an anti-death penalty rally, where he made a stir by lying down on a cot and binding himself as though he were a condemned man on a gurney. . .
State officials protested Griffen's conduct, charging that it suggested Griffen was not capable of impartiality in capital cases. It seems the Arkansas Supreme Court agreed.
Monday, the Arkansas Supreme Court removed Griffen from all pending death penalty and lethal injection protocol cases and referred him to the state's Judicial Discipline and Disability Commission to determine whether he violated the Code of Judicial Conduct.
The court's order reads:
"Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and confidence." Ark. Code Judicial Conduct, Preamble.
Amendment 80, section 4, provides that this court exercises general superintending control over all the state courts. "Superintending control is an extraordinary power that is hampered by no specific rules or means." Parket v. Crow, 2010 Ark. 371, 368 S.W.3d 902. Rule 2.11 of the Arkansas Code ofJudicial Conduct states in pertinent part, "A judge shall disqualify himself or herself in any proceeding in which . . . the judge . . . has made a
public statement . . . that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy." The United States Supreme Court has explained that, "A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases." In re
Murchison, 349 U.S. 133, 75 S. Ct. 623 (1955).
To protect the integrity of the judicial system this court has a duty to ensure that all are given a fair and impartial tribunal. We find it necessary to immediately reassign all cases in the Fifth Division that involve the death penalty or the state's execution protocol, whether civil or criminal. The administrative judge shall be responsible for determining the appropriate division(s) to receive these cases. In addition, this court instructs the Sixth Judicial District to submit a new administrative plan to this court for approval by close of business on Tuesday, April 18, 2017 that reflects the permanent reassignment of all cases referenced above, future cases involving this subject matter, and any other changes in case assignment to ensure all litigants in this district receive a fair and impartial tribunal. Judge Wendell Griffen is referred to the Judicial Discipline and Disability Commission to consider whether he has violated the Code of Judicial Conduct.
According to the order, one member of the court—Chief Justice John Dan Kemp—concurred in part and dissented in part and will be issuing a separate opinion at a later date.