Meet the Arkansas Judge Who Faces Impeachment for Protesting Against the Death Penalty

Judge Wendell Griffen talking:

First of all, let me correct the narrative. The case in which I ruled was not a death penalty case. The case involved a complaint by a distributor of a pharmaceutical product, a drug, that had—that drug obtained by the Arkansas Department of Corrections under false pretenses. The drug was obtained, and the distributor sought to get the drug back. The distributor filed a motion for a temporary restraining order on Good Friday, the afternoon of Good Friday, shortly before I was going to attend a prayer vigil that our congregation had scheduled in front of the Governor’s Mansion. Based on the law that governs contracts and property—basically, property law—I found that the distributor had a case and that the distributor’s chance of having its property returned was likely to be destroyed, unless I entered temporary restraining order. I entered the temporary restraining order, went to the prayer vigil, and the ruling was incorrectly reported as a ruling as blocking executions. Actually, the effect of the temporary restraining order was to simply hold the status quo, to simply say to everybody, “Listen, do not dispose of this drug until we can get all of the parties before me and we can sort this out, whether or not the Department of Corrections correctly has the right to hold this drug, or whether or not this drug in fact was wrongly obtained.” The evidence before me showed it was wrongly obtained. And so I did what I was supposed to do.

Now, I also went to the—I also went to the prayer vigil. That’s what I’m supposed to do. I’m a pastor. Good Friday is the religious holiday before Easter when followers of Jesus commemorate the death of Jesus. Our congregation had planned to have our Good Friday observance in front of the Governor’s Mansion before this motion was submitted to me. And so, as a pastor, as a follower of Jesus, I went to the Good Friday prayer vigil. And as a follower of Jesus, in solidarity with the religion of Jesus, I lay on a cot to show my solidarity with Jesus, who was a condemned man, condemned by the Roman Empire to death. And so that’s what happened.

I was surprised that there was such a refusal to even ask about the facts. The case, as I mentioned earlier, was not a death penalty case. It was a case about the return of wrongfully obtained property. I was surprised that people did not understand that no matter what my views are on the death penalty, the law on the right to get your property back is the law on getting your property back. And no matter who the judge is, that law has to be followed. As a matter of fact, after the Arkansas Supreme Court removed me from the case, the judge who took that case after me heard the same case, heard the same facts and ruled the same way. So, the issue is not what one’s view is or what people want one’s view to be about capital punishment. The issue is whether or not a judge will follow the law regardless of how he or she feels about an issue. I did that. Now, what surprised me is that people who claim to believe in the integrity of judiciary and judicial independence now somehow believe that judicial independence is a threat, so that they believe that judges who follow the law should be impeached. That surprises me. And really, it disappoints me.

Let’s talk about the scene. First of all, members of our congregation were present at the Governor’s Mansion. There were also other persons present, other persons who were protesting the death penalty. They all had a right to be there. Our congregation had no right to chase off other people. And other people had no right to expect that our congregation would not be present. And, in fact, our congregation led the protesters in singing “This Little Light of Mine” and “Amazing Grace.” Those are songs of our faith. And so, we did, as the followers of Jesus’ congregation, what we had a right to do. And as a judge, I did what I had a right to do as a citizen, by practicing my faith. That’s not disgraceful. That’s American. That’s democratic. We believe, because of the First Amendment, that every person has the right to live out his or her conscience. As a judge, I have an obligation to follow the law. That means that when a case comes before me, I have an obligation, as a judge, to apply the law that applies to that state, no matter what my personal views may be on an issue. It is not disgraceful for a judge to have views one way or the other way about capital punishment or anything else. It is not disgraceful for a judge who holds views to hold those views and decide cases involving those issues. What is inappropriate is for people to believe that when a judge decides a case according to the law, he or she should somehow be suspected as not being faithful to the law simply because he or she is faithful to their faith. “Faithful to faith” and “faithful to law” are not mutually exclusive terms. We can be faithful to our faith and faithful to the law, and the law can be followed even when we, as a people of faith, find questions about the law. And I think that’s something that we have to understand.

Now, let me speak about Attorney General Rutledge. Attorney General Rutledge represented the Department of Corrections, the governor of Arkansas and the director of the Department of Corrections in the lawsuit in which the distributor was trying to get its drug back. If Attorney General Rutledge believed that I was not qualified to decide the case, she had an obligation, as a lawyer, to bring that issue up before me. She didn’t do so. She did not tell me she was bringing the issue before the Supreme Court when she did that. The Supreme Court did not tell me that it was considering Attorney General Rutledge’s motion to disqualify me when it did so. The Supreme Court did not give me an opportunity to tell the Supreme Court what the facts were, before it removed me from the case and disqualified me from hearing all death penalty cases in Arkansas or any case involving the death penalty. That’s unfair, because no matter how thinly you pour it, every pancake’s got at least two sides. And part of what a judge is supposed to do is hear all the sides. It’s unethical for judges to refuse to hear the sides simply because one side doesn’t want the other side heard. And it’s unethical for a lawyer who’s supposed to be representing the judges—the attorney general of Arkansas represents judges—to basically go behind a judge’s back and try to have a judge removed, without even telling the judge that she’s doing so and giving the judge opportunity—a chance to hire their own lawyer and set the record straight on what the facts are. So, I am not concerned about my conduct. I’m very concerned about the conduct of the attorney general and the conduct of our Supreme Court, because, ethically, our justice system depends upon people trusting that our officials will follow the law. And when the attorney general of Arkansas doesn’t follow the law, when the Supreme Court doesn’t follow the rules that say that every dispute must be heard by all sides, people are going to have questions. If they will not follow the procedures when it affects a judge, how can they expect the procedure to be followed when it affects people who are ordinary citizens? So I’m concerned about that. And I think we should all be concerned about that.

Now, as to Senator Garner, I think that we should all be concerned about the notion that a legislator believes that it’s something somehow undemocratic for people to think about issues affecting public policy. What’s undemocratic about practicing your faith? What’s disgraceful about living according to your faith? And what’s disgraceful about following the law even when you have to follow the law and have questions about an issue involving the law? By point of fact, I followed the law in another case involving the death penalty where I refused to allow an amended complaint to challenge the Arkansas death penalty case, because the Arkansas Supreme Court had said the death penalty inmates could no longer challenge the constitutionality of the death penalty. I followed the law in that case, even though I oppose the death penalty. So, when Trent Garner says to me, and to the world, “Judge Griffen is disgraceful,” I don’t understand how he defines “disgrace,” because, quite frankly, by following the Supreme Court’s ruling, I disprove his claim of disgrace. By following the Supreme Court’s ruling, I disprove Attorney General Rutledge’s notion that I can’t follow the law. And by not allowing me to tell the Supreme Court that, the Supreme Court basically has prevented me from letting the record be made clear.

The issue is not whether or not I followed the law on Good Friday. The issue really is—and I think Trent Garner has made this very clear. Senator Trent Garner has made it clear. He has a long-standing objection to the fact that Wendell Griffen, as a person, and Wendell Griffen, as a judge, holds views about public policy and life that he finds objectionable. I believe that people should earn a living wage, and I’m not afraid to say so. I believe that it is wrong for us to demonize immigrants, for us to pick on our LGBTQ brothers and sisters, for us to marginalize people because they are different. I supported marriage equality. I am glad that we have finally in Arkansas embraced the notion that all persons are entitled to live out their love openly and honestly without being demonized for it and having to be forced to live in the shadows. There are people who find my perspective on life and on faith abhorrent. They have a right to do that. But they don’t have a right as public officials to punish me or to try to punish anybody else simply because they disagree with what I view life should be.

I think that we, as public officials, have a responsibility to honor the freedom in this society to disagree. That’s a wonderful thing. And it is something very dishonorable—we have a word for it, “tyranny”—something very dishonorable when we use power to punish people with whom we disagree. And so, this issue involving impeachment is nothing that I need to think about, other than simply the latest effort to punish a judge, a black judge—I will say it, a black judge—with whom the white power structure in Arkansas disagrees. And I am a black judge and a black preacher. And just like the power structure disagreed with Martin King and found him objectionable, the power structure in Arkansas disagrees with Wendell Griffen and finds me objectionable. But I think that the important thing for me to remember is, if I am to be faithful to the law, I’ve got to follow the law, no matter whether the people agree with me or not, or whether people approve of me or not. If I’m going to be faithful to my faith, I’ve got to live true to my faith, even if people find my faith objectionable and even if they’re willing to punish me for it. And I’ve got to be willing to say, “If you want to punish me for my faith, I’m going to live out my faith. You can decide whether to punish me.”

Mike Laux talking:

How rare is it? It’s extremely rare. The latest version of the Arkansas Constitution was adopted in 1874. So, in almost 150 years, there has never been an effort to impeach a sitting judge the way that they’re doing here with Judge Griffen.

And I think that, you know, you’ve really got to like kind of put this in context here. A lawyer smarter than myself recently said to me, “You know, normally when there is some type of a race against time involving an execution, that race against time is to save a life.” Well, not here. This was a race against time to kill people before drugs expired. So I think it’s important to always kind of see this entire kind of situation through that prism.

You know, going on after Judge Griffen is always kind of a challenge, because he’s so eloquent, and he covers the bases so well. But let me just recap a bit here. Judge Griffen followed the law. On Good Friday, that TRO, or temporary restraining order, petition came before him. And it sought to maintain the status quo, so that these property issues could be settled. Again, McKesson claimed that the false pretenses were used to get the drug. This was the conservative thing to do. And the judge heard the petition. The elements were satisfied. The complaint was verified. Affidavits were attached. The movant alleged imminent risk of irreparable harm. When you check those boxes, you’re supposed to grant the temporary restraining order. And that’s what he did. The fact that it involved a paralytic in this kind of breakneck-paced execution schedule by the state of Arkansas is really immaterial to his decision.

So, you know, this is a witch hunt of the first order. Judge Griffen has been singled out because of his history of outspokenness, his history of advocacy on social issues. And this is just another attempt at trying to take him down, like so many attempts before.

the possibilities are frightening and staggering. This is such an extraordinary measure that they’re taking here, and it really speaks to the naked political motivation behind these maneuvers. You know, this happened on Good Friday. The TRO was entered on the 14th. Later that evening, literally hours after that, hours after the prayer vigil and the rally there at the Governor’s Mansion, moments after that, you heard state senators and state representatives taking to the airwaves and making statements impugning Judge Griffen and threatening impeachment, a mere hour after this protest. And, you know, that really speaks, I think, to the zeal and the rabidness with which they are kind of approaching this matter. It’s clear that they’re trying to take Judge Griffen down. They saw an opportunity to do so, and they wasted no time in doing that.


Wendell Griffen
judge of the 6th Circuit, for Pulaski County in Arkansas. He is also the pastor of New Millennium Church. Griffen was barred from considering death penalty cases after participating in a Good Friday prayer vigil. He now faces calls for his impeachment.

Mike Laux
civil rights attorney. He is one of the attorneys representing Judge Wendell Griffen.

— source


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