Capital Punishment, Religious Liberty and Justice
By Wendell Griffen
Woe to you, scribes and Pharisees, hypocrites! For you tithe mint, dill, and cummin, and have neglected the weightier matters of the law: justice and mercy and faith. Matthew 23:23 (New Revised Standard Version)
On April 14 (Good Friday), 2017, I attended – in my personal rather than judicial capacity – a peaceful rally organized to demonstrate opposition to the death penalty on the steps of the Arkansas Capitol. Later that day, I also attended a prayer vigil with other members of New Millennium Church outside the Arkansas Governor’s Mansion. During the prayer vigil, I lay bound to a cot as an expression of solidarity with Jesus, who was executed by the Roman Empire by order of the Roman governor of Palestine, Pontius Pilate.
Also on April 14, 2017, I granted a temporary restraining order (TRO) in favor of McKesson Medical-Surgical Inc. (“McKesson”) distributor of the drug vercuronium bromide against the State of Arkansas, Arkansas Governor Asa Hutchinson, the Arkansas Department of Corrections, and the Director of the Arkansas Department of Corrections in McKesson Medical-Surgical Inc. v. State of Arkansas, et al., Case No. 60CV-17-1921 (McKesson I). Vercuronium bromide is one of three pharmaceutical agents used in the lethal injection protocol practiced by the State of Arkansas. In McKesson I, McKesson alleged that the defendants obtained vercuronium bromide from McKesson under false pretenses by intentionally failing to disclose that Arkansas intended to use that pharmaceutical agent in upcoming executions of persons who were convicted of committing capital murder in Arkansas.
Based on settled Arkansas property and contract law, I concluded that McKesson’s verified petition for the temporary restraining order (TRO) demonstrated that it was threatened with imminent irreparable harm unless a TRO was issued and that McKesson was likely to succeed on the merits of its claim. So, I issued a TRO that prohibited the defendants from using the vercuronium bromide until otherwise ordered by the Court, and scheduled a hearing for the following Tuesday, April 18, 2017, the first date the parties indicated they were available.
On Saturday, April 15, 2017, lawyers employed by the Arkansas Attorney General met the Clerk of the Arkansas Supreme Court in a parking lot and delivered an emergency petition for writ of mandamus, writ of certiorari, or supervisory writ with the Arkansas Supreme Court which sought to vacate the TRO and remove me from the McKesson case, although no motion for my recusal had been filed at any time. On Monday (the day following Easter), April 17, 2017, without notice to me and in violation of its own rules concerning ex parte proceedings, the Arkansas Supreme Court considered the emergency petition from the Arkansas Attorney General and issued Order No. 17-155 to “immediately reassign all cases in the Fifth Division that involve the death penalty or the state’s execution protocol, whether civil or criminal.” Order No. 17-155 is a “permanent reassignment.” When Order No. 17-155 was issued, I was not presiding over or assigned to hear any death penalty cases.
On October 5, 2017, I filed Case No. 4:17CV639 in the Eastern District of Arkansas, a lawsuit against the individual members of the Arkansas Supreme Court in their official capacities, and the Arkansas Supreme Court as an entity of the State of Arkansas. The complaint challenged the deprivation of my First Amendment rights to freedom of speech, freedom of assembly, freedom of religion, and freedom of religious expression, my Fourteenth Amendment rights to due process of law and equal protection under the law, and violation of my rights under the Arkansas Religious Freedom Restoration Act. The lawsuit also alleges that the Justices of the Arkansas Supreme Court conspired among themselves and with others for the purpose of depriving my right to equal protection of the law in violation of 42 U.S.C. Section 1985, to prevent me from being assigned to and preside over civil and criminal cases involving the death penalty or the method of execution in Arkansas.
Case No. 4:17CV639 was assigned to United States District Judge James M. Moody, Jr. After the Defendants moved to dismiss the lawsuit pursuant to Rule 12(b)6 of the Federal Rules of Civil Procedure, Judge Moody granted dismissal of my claims against the Arkansas Supreme Court based on sovereign immunity, but denied the motion to dismiss my First, Fourteenth, and civil conspiracy claims against the individual justices based on the conclusion that those claims were factually plausible.
The justices of the Arkansas Supreme Court then filed a petition for mandamus in the Eighth Circuit, seeking to overturn Judge Moody’s ruling. A three-judge panel issued a split decision earlier this year which granted the mandamus petition and ordered dismissal of my lawsuit against the justices. My petition for rehearing and rehearing en banc was denied on August 29, 2018. On September 10, 2018, Judge Moody dismissed my federal lawsuit pursuant to the Eighth Circuit’s mandate. My legal team is currently preparing to petition the Supreme Court of the United States to review and reverse the Eighth Circuit’s decision.
Based on a referral by the Arkansas Supreme Court when it issued the April 17, 2017, order permanently banning me from hearing and deciding civil and criminal cases involving the death penalty, capital punishment, and the method of execution in Arkansas, the Arkansas Judicial Discipline and Disability Commission (JDDC) formally charged me in June of this year with judicial misconduct because I granted the temporary restraining order in the McKesson case and engaged in my religious-based opposition to capital punishment on Good Friday 2017. My legal team is also defending me against those charges. No trial date has been set yet.
Despite my personal moral and religious objections to capital punishment, I have fulfilled my sworn duty to follow Arkansas law concerning capital punishment, the death penalty and the method of execution. However, I have been banned since April 17, 2017, from assignment to civil and criminal cases involving capital punishment, the death penalty and the method of execution in retaliation for my known and publicized opposition to capital punishment.
The permanent ban was imposed and is enforced despite the 1968 decision by the U.S. Supreme Court in Witherspoon v. Illinois which outlawed excluding persons with moral and religious objections to capital punishment from being automatically excluded as jurors in murder trials. And the permanent ban was imposed and is being enforced despite the 2002 decision by the U.S. Supreme Court in Republican Party of Minnesota v. White which struck down judicial ethics rules against judges and judicial candidates engaging in off-the-bench speech and conduct about controversial social and legal subjects.
I am the only judge in Arkansas to be permanently banned from hearing and deciding civil or criminal cases involving capital punishment, the death penalty and the lethal injection protocol practiced in Arkansas. Justice is being perverted to prevent me from judging cases involving capital punishment despite my willingness to follow the law even when the law runs counter to my moral and religious objections to capital punishment.
If a judge can be permanently banned from hearing and deciding cases involving capital punishment, the death penalty and the method of execution because of personal moral and religious opposition to capital punishment, then courts will be able to ban people opposed to capital punishment from serving as jurors. That is a blatant travesty of justice and violation of religious liberty.
