Activist judges must know the difference between free speech and poor judgement
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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. – American Bar Association Model Code of Judicial Conduct. 

One of the most fundamental aspects of our justice system is this — judges not only have to be able to apply the law, no matter their personal beliefs, but the parties before them, and the public, have to know that they are getting a fair shot.

That the judge has not “pre-determined” their case. This iconic principle is profoundly important.

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So the question is this: May a judge, authoritative in his black robe, decide a case involving a divisive and controversial issue on a weekday, yet literally take to the streets on weekends in public protest of the same issue?

 

Let’s look at what’s in the news right now, at opposite ends of the spectrum, but really with the same result – that the appearance of impropriety is as important as propriety itself.

In an instance that can only be seen as aberrational, let’s look at what has played out in Arkansas over the last several days as state and federal courts are addressing the Governor’s desire to execute 8 (now, 7) people in 11 days – unheard of, particularly in a state which has not executed anyone in 12 years.

You see, Arkansas’ supply of Midazolam, a powerful sedative that has a very bad record in fully bringing the “strapped-in” to unconsciousness to properly ensure painless death, is about to expire.

Without getting into the intricate and complicated legal wrangling, or the legal history of the controversial use of Midazolam, we turn directly to Pulaski County Circuit Judge Wendell Griffen, who took “activism” to a whole new level. See the photo.

In one of the state court cases, McKesson, the distributor of one of the drugs to be used with Midazolam in the lethal-injection cocktail claims that it was misled into believing that its drug was to be used in the prison’s healthcare facility, and not to be used with the controversial, and expiring, Midazolam. Judge Griffen issued a stay, telling Arkansas that it could not use the drug “until otherwise ordered by this Court.”

But here is the thing.  Soon after rendering his decision – in fact, that same day – Judge Griffen joined death penalty protesters in front of the Governor’s mansion, literally strapping himself to a gurney to simulate the appearance of a convict tied to his death bed.

When immediately rebuked publicly by legislators and others, Judge Griffen had this to say:

We have never, in my knowledge, been so afraid to admit that people can have personal beliefs yet can follow the law, even when to follow the law means they must place their personal feelings aside.

The Supreme Court of Arkansas acted immediately as, on the next business day after Griffen’s decision and protest, it removed all death penalty cases from Griffen’s docket and actually referred him to the Disciplinary Committee.

Echoing the ABA Code, the Court wrote: “Judges should maintain the dignity of judicial office . . . and avoid both impropriety and the appearance of impropriety in the professional and personal lives.”

Lest it go unsaid, this is far from the first time Judge Griffen has voiced his provocative views.  A regular blogger (and tweeter), in addition to the death penalty, he has taken on Little Rock’s ordinances, public education and our current President, to name but a few.

You can’t make this stuff up.

With all of this, one has to wonder how Judge Griffen didn’t realize that his action in so dramatically protesting the death penalty would get him to that spot dictated by Arkansas’ Supreme Court.

But the truth is, Judge Griffen’s theatrical protest was so brazen, and so aggressive, and his views on the subject were so strong, that he really never should have accepted a death penalty case in the first place.

Yes, judges do live in the real world.  After all, Justice Benjamin Cardozo famously taught us many years ago that there is in each of us a “stream or tendency” that gives coherence and direction to all thought and action – and that “[J]udges cannot escape that current any more than other mortals.”

Still, judges are also trained to – and expected to – put aside their own sensibilities when applying the law. They are not supposed to recuse themselves except under certain circumstances – they take the case rolled out to them.

But what if the judge becomes a ‘60’s-era protester – say, for those of us who remember – marching against the Vietnam War or “sitting in” in demand for civil rights legislation?

Even if he is not sitting on a case involving the issue, a judge’s protest can be so aggressive that it violates the canons of ethics even if he does not have a related case pending before him.

Back to Judge Griffen. There can be little question that his conduct was way out of bounds.  But let’s look at judicial conduct that many of us would find more palatable. Just last week – while this truth-is-stranger-than-fiction drama played out in Arkansas – the NYS Committee on Judicial Ethics responded to the question of whether judges were ethically barred from marching in the upcoming high-profile, yet non-partisan, March for Science.

Science. Easy. Right?

Well, maybe.

The NYS Committee ruled that judges must satisfy themselves that the March is not affiliated with a political party and that the judge's participation will not insert him unnecessarily into public controversy.

It also found that a judge may not ethically express an opinion – by calling or signing an online petition – on a pending federal appointment, nor participate in a local political rally sponsored by grassroots organizations.

The Committee recognized that these prohibitions place a heavy burden on judges but, by taking on the “sensitive and critically important role” of judges, “it is absolutely necessary to maintain an impartial judiciary in both practice and perception.”

And this, of course, is the real mischief of Judge Griffen’s actions.

Capital punishment is about as divisive an issue as exists.  It is thus unsurprising that a justice of the U.S. Supreme Court once famously concluded, in his dissent in Callins v. Collins in 1994 (the majority affirmed a death sentence):  “From this day forward, I no longer shall tinker with the machinery of death.”  To be sure, that exquisitely poetic statement by Justice Harry Blackmun was a protest! As meaningful a protest as a judge – particularly a justice of the Supreme Court – could possibly make.

Justice Blackmun didn’t need a billboard, or a band of marchers armed with a calliope, or a sit-in on the steps of the Capitol.

When judges sometimes publicly introspect the way he did, "words matter" more than anything. The death penalty still exists in America, but his thoughtful dissent may have actually helped move some colleagues in the ultimate direction of abolition.

No question, judges speak their minds, and should. They speak in legal forums; in their decisions; and occasionally, although conscribed, to the public. They protest, in the same way Justice Blackmun did when – in the confines of a decision –  he traced his judicial, yet personal, abolitionist trajectory.

And Judge Griffen is hardly the first judge to want to abolish the death penalty – there are many others around the country.

But even the strongest death penalty opponent who knows anything about how the judiciary should comport itself wouldn't want a judge deciding the case – especially one in her corner – within a hundred miles of a public protest supporting her position.

Looking at Arkansas, and Judge Griffen, even from this distance, it was clear that there wasn’t a snowball's chance in hell that he would be allowed to continue to preside, and indeed, he was out within one business day of his action.

There is, in fact, a good chance that he won't be able to continue as a judge.

Strapping himself to a gurney in front of the Capitol especially while his case was still pending?  Seriously?

Joel Cohen practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is the author of "Blindfolds Off: Judges on How They Decide" and regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications. Dale J. Degenshein of Stroock assisted in preparing this article.


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