Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen


That’s the judge lying down. At least he wasn’t wearing his robe…

Arkansas circuit judge Wendell Griffen granted a temporary restraining order last week halting the Arkansas Department of Corrections from executing seven condemned prisoners within eleven days as it had planned, as Griffen barred the use of one of the ingredients in the lethal drug “cocktail.” A federal judge followed up quickly with anothee order likewise barring Arkansas from proceeding to execute anyone with a lethal injection. Mission accomplished,  Judge Griffen decided to reward himself by attending an anti-death penalty rally in which he participated with elan, playing a condemned prisoner lying prone on a lawn chair as if it was a gurney.

What fun! And what an idiot! No ethics alarms went off, despite the fact that he was flagrantly displaying his bias against the death penalty immediately after interfering with the state’s law enforcement based on a fair and objective interpretation of the law.

State officials were outraged, and argued that Griffen’s conduct proved that he was not capable of impartiality in capital cases. Ya think?

Yesterday the Arkansas Supreme Court pulled Griffen from all pending death penalty and lethal injection protocol cases. It also referred him to the state’s Judicial Discipline and Disability Commission to determine whether he violated the Code of Judicial Conduct.


The court said, as it removed him:

“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…

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”

All jurisdictions have similar judicial ethics requirements. How could Griffen have not realized that his stunt would undermine the integrity of his decision as well as the judiciary?

No doubt he was influenced by politicians of both parties years long representation of all judicial rulings as political rather than impartial, exemplified by Democrats recent savaging of now Supreme Court Justice Neil Gorsuch, despite the fact that he said he would comfortably issue opinions that varied from his personal policy beliefs. Every judge should strive for that standard, but it is an open question how many do. James Robart, the “so-called judge” who first stopped the Trump temporary halt on travel from seven Muslim countries deemed a terrorism  risk, had taken on many pro bono representation of Asian immigrants as a lawyer and had said during his confirmation hearing that he regarded the law as a way to help people who feel they’ve been wronged, or that have the odds unfairly stacked against them. I would hold that such a philosophy disqualifies him for the bench, but that’s how progressives believe judges should view their role.

The role models for the judiciary haven’t been much better. Both the late Justice Scalia and Justice Ginsberg have prominently supported partisan positions and organizations, though not those involved in pending cases. The public should be able to trust that a judge can oppose abortion, for example, and still follow the law to uphold abortion. If judges are going to openly proclaim political and partisan bias and rule as their demonstrated biases command, we might as well start electing all of them.

Of course, if cases are decided on biases rather than the law, cases and precedent, judicial ethics are a sham.

Additional points:

  • On the comment thread on the Volokh Conspiracy article that told the story of Griffen’s “I’m biased and proud of it” display, one commenter asked,

“Should a judge who opposes abortion (for whatever reason) be permitted to conduct a hearing with respect to a minor seeking an abortion?”

The answer is “Sure, if he honestly can say that his policy views won’t effect how he interprets the law, and sincerely believes he can rule contrary to his personal beliefs, as any ethical and competent judge should.”

  • Question: if the judge took part in the demonstration after he had refused to halt the executions, would that have been unethical?

I would still say yes, because many members of the public would interpret the gesture as proof the the judge was a hypocrite, though in fact it would be a sign of integrity.


Facts: The Volokh Conspiracy

51 thoughts on “Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen

  1. James Robart, the “so-called judge” who first stopped the Trump temporary halt on travel from seven Muslim countries deemed a terrorism risk, had taken on many pro bono representation of Asian immigrants as a lawyer and had said during his confirmation hearing that he regarded the law as a way to help people who feel they’ve been wronged, or that have the odds unfairly stacked against them.

    He had to defy precedent to do so.

  2. Jack,
    You might want to check your numbers (I would now, but am on my phone). It was originally 8 prisoners and then two were granted unrelated stays before the judge stopped the remaining 6. Then again, I could be remembering wrong or something might have changed.

  3. Ethics Dunce for sure, but shouldn’t he have another designation like “Legal Idiot”? It’s not just ethics but as you point out, defined rules. If you didn’t learn the rules of the legal system, what is your degree and education good for?

  4. The Federal judge’s order was subsequently vacated. At least five of these prisoners are slated to die, and soon. Arkansas should not have waited until its supply of midazolam was about to expire, then schedule this tide of executions, which would become a magnet for activism.

    • And a magnet for mistakes. The report from that Oklahoma botched execution said extra stress from the planned double-header contributed.

          • And screw all this ‘we cannot inflict pain and suffering’ while KILLING a criminal. With all of the appeals (in Texas it is almost a mandatory 20 years) the criminal gets due process. Are mistakes made? Sure. But the majority of executions are not a mistake.

            America does not execute political opponents (yet), and the majority of death row inmates are career criminals (or have/had a mental problem) A thug life tends to catch up with you.

            A bullet to the back of the head is painless, decisive, and effective. People are just squeamish about it. This back door effort to stop the rightful end to the judicial process corrupts our system. Change the laws, or live with them. Progressives tend to cheat when they cannot win an election, and this is an example.

  5. Jack wrote, “No doubt he was influenced by politicians of both parties years long representation of all judicial rulings as political rather than impartial, exemplified by Democrats recent savaging of now Supreme Court Justice Neil Gorsuch, despite the fact that he said he would comfortably issue opinions that varied from his personal policy beliefs.”

    This jumped out at me and something at the core may warrant an entire blog on its own.

    Democrats have a strong tendency to think that judges should be Judicial activist for Liberal/Progressive ideological viewpoints; why would we expect Democrats to think a Judge that is nominated by a Conservative President would be any different than their expectations of a Liberal leaning Judge that they approve of. Democrats appear to be hardwired to believing that Judicial activism is acceptable so they’re going to automatically “see it” in every Judge whether there is evidence of it or not.

    Judicial activism, like this Arkansas Circuit Judge openly showed us, is going to become a big problem as it gets more wide-spread and brazenly transparent.

    What do we as citizens do about this growing problem?

    • This is just another reason that the death penalty is moving closer and closer to the door, although it’s probably got about 20 years or so to go before it officially ends in the US. Although for the longest time most Americans supported capital punishment for murder that is starting to change, and in no small part due to decades of determined activism by those opposed. A determined minority can usually get its way, for better or for worse.

      • It’s that what we want? You may or may not approve of the specific goal but working to change public opinion is a good thing.

        Unless for some reason you think public opinion right now is exactly right on everything and should never ever change.

        • No I don’t think public opinion is exactly right on everything and should never change, that’s foolish on its face. Do you? Of course not. However, I will note that often the liberal side is equally as happy to get a vote in its favor as it is to use a judicial forum to override a vote that doesn’t go its way. I’ll also note that quite often the liberal side pushes for change, change, change, then, once that change occurs, defaults to “the law is settled.”

          • So you weren’t thrilled with the Hobby Lobby decision? Exemptions from birth control mandates weren’t decided at the ballot box or in congress. You just don’t call it activism when it goes your way.

            • The First Amendment was decided in Congress. It is not activism to judge that forcing a religious business to violate its faith is beyond government power. There is plenty of law and precedent supporting Hobby Lobby, which was a narrow holding.

              • I knew something like that was coming. Trying to keep this polite, V-girl, do you really think you score points by playing Socrates like that? Actually the Bill of Rights would have been ratified by the states, no, Jack? I agree, there is plenty to support that decision, and I was pretty disgusted at the overreaction by liberal acquaintances on social media.

                • Trying to keep this polite, V-girl,

                  Small v, 2 r’s, as you well know. Pointing that out is exactly why you chose the way you do address me. So how exactly are you trying to be polite?

                • Huh? There is no question that the 8th Amendment was not aimed at capital punishment, since every state had it. It wasn’t considered cruel, and it certainly wasn’t unusual. States certainly can ban it, but the judges who used the the Amendment to stop it are just legislating, flat out.

                    • I don’t know how you reach that conclusion. Lethal injections have been the predominant method of execution for decades. No method is 100% foolproof, though the old Indian method where an elephant steps on the condemned’s head and crushed it like a grape seems pretty foolproof.

                      I agree THAT would be unusual.

                    • As the late Justice Scalia pointed out, the Supreme Court’s Eighth Amendment jurisprudence, beginning with Trop v. Dulles, 356 U.S. 86 (1958), is the reason that capital appeals take so long.

                      Taking “evolving standards of decency” at its words, it would mean that Congress would effectively decide which criminal punishments are acceptable. After all, what could better reflect evolving standards of decency than acts of Congress? Congress could make going one mile per hour over the speed limit an offense punishable by death by torture, and under the original meaning of Trop, this would be considered acceptable, because the mere fact that Congress authorized death by torture demonstrates that the standards of decency permit such a thing. Conversely, if Congress abolished imprisonment, then it too would reflect a standard of decency in which imprisonment as punishment for any crime is impermissible under Trop.

                      But that is not how Trop is interpreted by the courts. Judges use their own personal standards of decency when deciding whether or not a criminal punishment is permissible under evolving standards of decency.

                    • There is nothing in the 8th Amendment, nor any of the jurisprudence flowing from it, that says that execution (which is specifically permitted by the 5th Amendment, which talks about deprivation of life) must be absolutely painless and instantaneous, lest it run afoul of being considered cruel. For over a century we used hanging or shooting, then moved to the electric chair and the gas chamber. Finally most states settled on lethal injection as the most painless and clean way to execute. However, nothing more than outright abolition will satisfy opponents.

        • Change public opinion in and moral, ethical way. That is not what has been happening (on both sides, but mostly from the progressives.)

          Present facts, persuade, and debate an issue. Don’t slant coverage, lie, and cheat on the way to that change.

        • Unfortunately, once the penalty is taken away, you usually can’t even legislate it back – witness NY State, where Pataki ran on bringing back the death penalty and did successfully bring it back, only to have the Court of Appeals shoot it down on a technicality with regard to the jury instruction. “Evolving standards of decency” may become the right to privacy of the 21st century. If there is a proviso you can put it to the people – witness ruby-red Nebraska’s electorate shooting down a repeal this last year, but liberal officials and judges will move heaven and earth to keep the electorate from deciding something they might vote the wrong way on.

  6. “he regarded the law as a way to help people who feel they’ve been wronged, or that have the odds unfairly stacked against them. ”

    “Before I deliberate your sentencing, I need to ask you if you feel you’ve been wronged, or that the odds were unfairly stacked against you”.
    “Yes, your honor. What with all of that evidence, I didn’t stand a fair chance of walking at all.”

  7. Send in the DOJ. At least four of the eight death row inmates are black. Fifty percent. Only thirteen percent should be.

    • Other Bill:

      That statistic is so mistaken as to be a lie: fully 50% of violent crime is perpetrated by young black men, according to the FBI. 100% of embezzlers are liars, but not all liars are embezzlers. Each case should be taken on individual merits, as individual choices are the root cause for the case.

      People are not statistically going to commit crimes according to their proportion of the population, but by their culture, economic circumstances, and beliefs.

  8. The judge in Arkansas is obviously a moron. Knowing a bit about professional codes of ethics, by participating with the anti-death penality celebrants at the rally he demonstrated how clueless he was he was about the need to preserve the appearance of impartiality in cases he presides over. I sincerely hope the voters will recall him. As far as the second case, of course it would be unethical even though he had refused to halt the executions. A judge cannot let his personal sentiments compromise his need to maintain judicial impartiality.

  9. I’m a little confused. I cannot disagree that the judge was incorrect in his actions, but I know little about the legal system. Are you saying that a judge, upon accepting their job as judge, gives up (or should give up) any right to political activism, like an oil field worker gives up their rights to have a beard or take smoke breaks? That this is just a requirement of the job, to not act on one’s convictions to avoid any chance of accusation of partiality and the scandal that follows? Is it that the judge violated the requirements of employment?

    Or is the issue to manner in which this was done? Could the judge have said, “I believe that X is wrong, here are my reasons (cue something reasonable from the fields of logic, philosophy, and science), and I request that I not be given cases that deal with this because I do not wish to either be seen as partial or a hypocrite?” Is he just guilty of acting like an idiot and not taking responsibility for his position in the public eye, just as we can bemoan atheletes, elected officials, and more who act like cliquey teenagers and dumb down society?

    While I feel that both options are problematic, it seems that the response would vary. Either way, the people who get him on their ballot should look sternly upon his career, but if he violated his terms of employement, (can he be fired without a vote?) out he ought to go whereas if he simply acted poorly, gets discipline (can judges be disciplined?) and reacts with honest contrition, then he might be worth a second chance. (Dishonest contrition or a lack of contrition, of course, are another matter entirely.)

    • A judge should not comment publicly on matters that may be before the court. Further, judges in NJ, who are appointed, not elected, must refrain from partisan political activity.

    • Are you saying that a judge, upon accepting their job as judge, gives up (or should give up) any right to political activism, like an oil field worker gives up their rights to have a beard or take smoke breaks?

      I’m not only saying that, it’s a fact. If he wants to be an activist, that’s fine: he can’t be a judge.

      • Thank you for clarifying that. Can they fire a judge, like any other employee who violates their employment contract?

    • Justice Harlan (the grandson) would not vote in an election or clap at the state of the union lest it give the slightest hint of any political bias. How far we’ve come.

        • I agree that SCOTUS needs an ethics code, but, in all fairness, did Eisenhower, Kennedy, Johnson, or Nixon ever attack the SCOTUS or a decision in a speech or an address? FDR was far more politically powerful than Obama ever could hope to be, but even he knew when to back off the SCOTUS. That said, I wonder if he knew from the get-go he was going to break the 2-term tradition and just wait the court out, as justices either died or retired and he replaced them with like-minded judges.

          What do you think of an age limit for Federal judges, setting either 70 or 75 as a mandatory retirement age? Although Article III judges serve for the term of their good behavior, arguably that Article didn’t conceive of Federal Judges living well past 70 regularly and living and serving into their 80s and 90s uncommon but now certainly not unheard of. If we can revisit Presidential terms of office, which we already have, if we can revisit the Electoral College, which we already have once and some are asking us to again, and if many vocally want us to revisit both the First and especially the Second Amendments, all of these due to changing circumstances (breach of the 2-term custom, the emergence of political parties, alleged hate speech, and the evolution of firearms beyond single shot muskets) then arguably we can revisit Article III as well.

          I’m not naïve enough to believe that wouldn’t create its own set of problems with pension issues, talented but older judges turning down appointments that they wouldn’t get to spend much time in before they had to retire, and chess-piece judge appointments and promotions in the hopes of positioning someone near retirement so that a key slot would open sooner rather than later. However, I think that is preferable to permitting judges and justices in declining physical and mental health to remain on the bench in the hopes of holding on for just long enough for the White House to flip and ensure their landmark decisions aren’t disturbed.

          Does anyone here think that Harry Blackmun stayed on the SCOTUS until he was 86 simply because he enjoyed his work? Does anyone think that William O. Douglas stayed until he was 75 and disabled by a stroke (and even then had to be persuaded by fellow Justice Fortas to step down) because he was just that devoted to public service? Does anyone think Antonin Scalia, 79 and suffering from hypertension, diabetes, and a myriad of other issues that come with being that old and not taking care of yourself, who had earlier said he hoped NOT to be on the Court all his life, stayed till the Grim Reaper came for him for any reason other than he didn’t want Obama to appoint his successor? Raise your left hand if you really and honestly think Ruth Bader Ginsburg, 84 and a cancer survivor who has trouble staying awake, is still on the court for any other reason than she knows if she goes now, the Court tilts right for a generation.

          The fact is that a lot of judges and justices at the Federal level are guilty of the sin of pride, and just can’t stand the thought that someone else might come along who saw things differently than they did, and what they thought was their careful carving into the marble face of time would turn out just to be footprints in the sand, that a subsequent tide would wash away. It’s time to remind the judges that they, like all other folks who don’t wear a black robe, are human, and subject to the vagaries and changes of history as much as anyone else. They shouldn’t try to change that verdict.

          • Thanks: great issue and Comment of the Day. When there was a news story about a 90 year old judge, I opined to my legal ethics expert listserv that this was ridiculous, and that such a tenure should not be allowed. I was universally condemned on the list as a bigot and ageist.

          • Steve-O raises points that are fast approaching critical mass in terms of aging competency. At age 75, in many states, drivers must take a road test and eye exam to renew a license. If they pass both, on they go, at least for another year. Of course, those are fairly objective, quantifiable conditions. My grandfather Ben, went on driving until he was 90 (never forgiving the authorities for not allowing him to take flying lessons) — but then he carried on sturdily for another 14 years before giving up his independence. Before all you lawyers start rolling your eyes, yes, I understand the situations are different. But there are ways to assess mental capacity (stop shouting … I know SCOTUS wouldn’t sit still for it; I’m just sayin;).

            The ability to assess mental capacity has come a long way since grandpa left off sighing over his flight plans. Due to the focus on geriatrics over the past decades and the intense research into Alzheimers and other forms of dementia, it is more possible to determine whether one’s mental capacity is still sound: For the judges, too, tests can be adapted to that complex job, to confirm or deny — or let slide for another year from age , say, 75 on — their ability to judge, roughly, to:
            (1) understand the information given about a particular decision; (2) retain the information long enough to sort it out; (3) weigh the information necessary to make that decision; and (4) communicate that decision verbally, in writing or a la Hawking.

            It’s not a complicated process. In fact, to friends and family – and sometimes even to the public, it is usually clear that one or more of these processes are failing, beyond those temporary losses we all have when under stress or the effects of a drug. They persist, and they apply to most areas of a person’s life. Sometimes they just slow you down – In my late 70s, very like my mother at that age, I now take a bit longer gathering in, sorting and evaluating, but if (unlike her) I don’t get frustrated or panic over it, I frequently find that I have made a better choice, a wiser solution. However, if the clock is ticking madly, the situation is urgent and voices are nagging in both ears, I haven’t got the “space” to ponder the world’s woes and come up with a ready answer. Better drop it. That can be humiliating.. And dangerous, if I were still driving, or about to deciding on a crucial Constitutional amendment. So maybe it’s up to us. Who’s going to be the one to suggest that it’s time to take off the black robe and

            where was I . . . ? Oh, right. Retaining information.

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