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Griffen motion raises impartiality concerns

He seeks new judge for his lawsuit

Pulaski County Circuit Judge Wendell Griffen asked Wednesday that a federal judge who once presided alongside him be disqualified from hearing Griffen's lawsuit against all seven members of the Arkansas Supreme Court.

The lawsuit, filed Oct. 5, accuses the justices of violating state and federal laws by disqualifying Griffen from presiding over any cases involving the death penalty or the state's lethal injection protocol.

The state Supreme Court took that action in April, three days after Griffen, who is also a Baptist minister, attended a prayer vigil outside the Governor's Mansion in Little Rock to oppose executions while lying on a cot "in solidarity with Jesus."

The case was first randomly assigned to U.S. District Judge D. Price Marshall Jr., who recused on Oct. 12, saying, "I served on the Arkansas Court of Appeals with Judge Griffen, Justice [Karen] Baker, Justice [Courtney Hudson] Goodson, and Justice [Josephine] Hart. My impartiality in handling this case between my former colleagues could reasonably be questioned."

The case was next assigned to Chief U.S. District Judge Brian Miller, who on Oct. 19 also recused, writing that he had also served on the Arkansas Court of Appeals with Griffen, Baker and Hart.

"I have great respect for all three judges and view them very kindly," Miller said in his recusal order. "Therefore, it would be very difficult to rule on this case without taking into account my feelings for them."

That same day, the U.S. district clerk's office reassigned the case to U.S. District Judge James Moody Jr., who was a Pulaski County circuit judge before taking the federal bench. Moody has not filed a recusal notice.

In a motion and supporting brief filed Wednesday, Griffen cited the U.S. Code, which requires any federal judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned" or "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."

Noting that the purpose of Title 28, Section 455 of the U.S. Code is "to promote public confidence in the integrity of the judicial process," Griffen's attorney, Mike Laux, said that "if this matter remains before Judge Moody, the legitimacy of its outcome will be questioned by an attentive public.

"Moreover, by virtue of previous relationships and prior professional experience -- alongside Judge Griffen and several expected material witnesses -- Judge Moody has personal knowledge of specific matters which will undoubtedly be contested during the litigation," Laux said.

Metro on 12/07/2017

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