2017-05-24 14:10:43 UTC
Opening the back door to abolishing the death penalty
The U.S. Supreme Court on Monday seemingly delivered a fatal body blow to any
desires held by state lawmakers, prosecutors, or the families of murder victims
for reversing the quick and radical judicial overhaul of Florida's death
The nation's high court refused to consider Attorney General Pam Bondi's appeal
of a new state law, engineered earlier this year to appease a past ruling of
the Florida Supreme Court, that mandated juries to issue death sentences by
Thus, the federal court's decision completes the Florida Supreme Court's
usurpation of the Legislature's authority over the ultimate sentence, as well
as the creation of a backdoor method for blocking capital punishment in the
Bondi argued on appeal that the Florida Supreme Court had misinterpreted a U.S.
Supreme Court ruling that declared Florida's system unconstitutional because
judges, and not juries, issued death sentences. That finding was based on an
appeal by Timothy Hurst, convicted in 1998 in the brutal slaying of a Pensacola
Popeye's Fried Chicken restaurant employee, who had been bound, gagged and
stabbed more than 60 times and dumped into a freezer.
Hurst, like every other feath row inmate since Florida re-established capital
punishment in 1972, was sentenced to die by a judge after a jury had
recommended death with the endorsement of at least 7 of the 12 jurors. In
January 2016, however, the U.S. Supreme Court, after reviewing Hurst's case in
the light of an earlier decision from Arizona, determined that the jury, and
not the judge, must hand down the sentence.
Lawmakers thought they fixed that last year by requiring jurors to unanimously
agree on at least 1 factor that would prescribe the death penalty, and then
mandating a 10-2 supermajority to impose the sentence.
Yet a majority of the Florida Supreme Court, citing the Hurst case, overturned
that hastily assembled statute. Florida's justices decreed last fall that the
sentencing verdict must be unanimous - an issue never considered by the U.S.
Supreme Court in Hurst's case.
Although lawmakers conceded, Bondi appealed on that point.
The state Supreme Court's majority stated in its Hurst ruling that the process
for determining guilt in every criminal case that goes before a jury must be
applied to the sentencing proceeding in a death case, which is a separate event
from the defendant's actual trial.
Besides extrapolating that from thin air in its read of the federal decision,
the majority's intellectual gymnastics raises a question: If, under the U.S.
Constitution, a defendant facing death can only be sentenced by a jury,
shouldn't a jury sentence defendants in all cases for everything else up to
1st-degree murder? What sets a murder case apart?
As baffling as that finding was, even more so was the Florida Supreme Court
majority's fanciful thinking that capital punishment will not be hindered by a
single juror's conscience.
The court determined that juries must unanimously agree on all parts of the
sentencing phase - including deciding that all factors exist to impose death,
that those must outweigh any that could spare the defendant's life, and the
ratification of the sentence itself. In doing so, the majority noted that there
was "no basis for concern that requiring a unanimous death recommendation
before death may be imposed will allow a single juror, who for personal reasons
would under no circumstances vote to impose capital punishment, to derail the
One does not have to be a proponent of the death penalty to be concerned about
how this ruling was reached or its effects. The state court's majority
trespassed into the Legislature's realm and grabbed a political tool to resolve
a legal question - which Justice Charles Canady alluded to in his dissenting
opinion. By mandating that every step be a unanimous decision, Canady wrote,
the majority "wrenches" the U.S. Supreme Court's ruling "out of context" and
thus "fundamentally misapprehends and misuses (Hurst), thereby unnecessarily
disrupting the administration of the death penalty in Florida."
And if Canady's colleagues doubt his take on how potent a well-motivated
holdout can be in the emotional pressure cooker of the jury room during death
penalty deliberations, we would urge them watch Henry Fonda in "12 Angry Men."
After all, despite his horrific crime, the jury vote for death in Hurst's case
was 11-1. Last year, meanwhile, a Florida House staff analysis found that only
20 % of the 296 defendants sent to death row between 2000 and 2012 landed there
via a unanimous jury vote.
A system in place for 45 years has been utterly upended within 16 months, and
by failing to ensure its language and intent in the Hurst ruling were clearly
understood in Tallahassee, the U.S. Supreme Court has allowed the Florida
justices to legislate from the bench, which is a setback for all the families
who seek justice for the loved ones taken violently from them - as well as
those who may face that in the future.
(source: Editorial, The Ledger)
Florida's new death penalty rule means fewer death sentences
Florida's new death penalty sentencing rules will keep some criminals from
sitting on death row.
Take the case of Andy Avalos, Jr., convicted on 3 murder charges, 2 of them
1st-degree murder. State Attorney Ed Brodsky thought the decision was crystal
"3 separate individuals he killed were brutally killed, we believe (that)
warranted the death penalty," says Brodsky.
Yet a jury gave Andy Avalos a sentence of life in prison without parole, thanks
to a new Florida rule. It requires a jury to agree unanimously on the death
penalty, and a judge has no say.
Brodsky says, "We're disappointed, but we respect the jury's verdict."
Under the old rule, Avalos would have gotten death for the murder of Pastor
James Tripp Battle. The jury voted 7-5, and a majority was all that was needed.
"I think it's going to be harder. I think the Florida Supreme Court placed a
significant burden on prosecutors in the state of Florida," says Brodsky.
Last year, the U.S. Supreme Court ruled Florida's death penalty
unconstitutional and the state rewrote its death penalty guidelines. It's a
move criminal defense attorney Derek Byrd says was the right one.
"The death penalty doesn't work, it never worked or going to work from my
standpoint," Byrd says. "I'm glad it's a higher burden. It does not work
doesn't prevent murders and actually costs taxpayers more money to have death
penalty than to put someone in prison for the rest of their lives (due to) the
nature of appeals."
One report tallies the average cost for the 12- to 15-year-long appeals process
at more than a million dollars per death row inmate.
Without the death penalty, Byrd says prosecutors lose their leverage for plea
"Now it's so difficult to get the death penalty I think more defendants will
roll the dice and say, 'I'll take my chances in trial.' It's still going to be
difficult to convince 12 people someone deserves the death penalty."
All it takes is 1 juror?
"All it takes is 1," Byrd says.
That means prosecutors will also have to work harder at selecting a jury that
is willing to give the ultimate punishment for the ultimate crime.
200 inmates placed on death row since 2002 are eligible for another sentencing
hearing if their verdict wasn't a unanimous one.
Florida has 367 inmates on death row, including 4 women. Florida has executed
91 prisoners since 1979.
(source: WTSP news)
After SCOTUS Denies Appeal AG Bondi Ready To Move Ahead With Capital Cases
The US Supreme Court is refusing to take up a further challenge in Florida's
precedent setting capital case Hurst v. Florida.
The high court's decision not to hear the appeal brings an end to a years-long
fight over unanimous jury sentences in Florida's death penalty system. Attorney
General Pam Bondi is ready to put the failed appeal behind her and prepare for
new hearings in many cases finalized after 2002.
"Currently we're operating under the new death penalty statute," Bondi says.
"Going forward, I feel very comfortable. We're securing unanimous death penalty
recommendations, post-2002, meaning Ring v. Arizona - those cases will come
back for resentencing."
The state supreme court's decision to impose a 2002 cut off for new hearings is
an anomaly. But Bondi doesn't see a problem with carrying out sentences for the
cases on the wrong side of the line.
"I don't think Ted Bundy was a unanimous death penalty [recommendation], and
clearly he should've been executed." Bondi says, "So no, I don't have a problem
with that, but going forward we will respect the courts and the change in the
"That's our system - our laws evolve and change as we progress."
There are currently 367 people on death row. About 1/2 could be eligible for
(source: WFSU news)
Ivey: Execution clemency 'one of most difficult decisions' for governor
Alabama Gov. Kay Ivey, 2 days before the 1st scheduled execution on her watch,
was asked today whether she had received a request for clemency from Tommy
Arthur and how she generally planned to handle such requests.
"That is absolutely one of the most difficult decisions any governor has to
face," Ivey said. "Certainly, in reviewing the legal aspects on several
different occasions, it's a subject I cannot discuss."
The Alabama Attorney General's Office says the ruling won't stop plans for
Tommy Arthur's execution Thursday at 6 p.m. at the Holman Correctional
Ivey made the comment at Maxwell Air Force Base on Tuesday, where she held a
ceremony to sign legislation related to the military in Alabama.
Arthur is scheduled to die by lethal injection Thursday night at Holman
Correctional Facility in Atmore for the 1982 murder of Troy Wicker.
Ivey Press Secretary Eileen Jones said the governor's office has not received a
request for clemency from Arthur's lawyers.
Earlier this month, AL.com reported that Arthur wrote a four-page, hand-written
letter to Ivey asking her to order DNA testing of hair he said was found at the
crime scene and pleading for his life.
This is the 8th time the state has set an execution date for Arthur. The most
recent previous date was in November, when the U.S. Supreme Court issued a
Court reverses ruling in death-row case, but AG says execution still on
Alabama death row inmate Tommy Arthur won a victory in court Tuesday, just 2
days before his scheduled execution, when a state appeals court reversed a
judge's ruling that rejected Arthur's claim that the legislature, not the
prison system, should decide on the method of execution.
But the Alabama Attorney General's Office says the ruling won't stop plans for
Arthur's execution Thursday at 6 p.m. at the Holman Correctional Facility.
"I consulted with our capital litigation team. The Thomas Arthur execution is
not off. No change," Mike Lewis, spokesman for the Attorney General's Office
wrote in an email to Al.co
Arthur's attorneys also agreed that the ruling does not stay the execution.
It is the 8th time since 2001 that the state has set an execution for Arthur
for his conviction in the 1982 shooting death of Troy Wicker.
The Alabama Court of Criminal Appeals on Tuesday afternoon reversed the ruling
last month by Montgomery Circuit Judge Truman Hobbs. "This matter is remanded
to that court for it to vacate its judgment and transfer the case to the
Jefferson Circuit Court ... Once the matter is transferred to the Jefferson
Circuit Court, that court should hold it in abeyance until this Court issues
its certificate of judgment," according to the appeals court ruling.
The Alabama Court of Criminal Appeals does not rule that Arthur's challenge is
correct, just that Hobbs should have transferred it to the Jefferson Circuit
Court, the court in which Arthur was convicted.
The motion states that the Alabama Legislature, not the Alabama Department of
Corrections (ADOC), should be the one to decide what lethal injection drugs
should be used.
Arthur's attorneys had argued that one reason why Arthur should not be executed
is because the Alabama Legislature, not the Alabama Department of Corrections
(ADOC), should be the one to decide what lethal injection drugs should be used
for executions, according to Arthur's motion.
The prison system also has been secretive about its' lethal injection drugs and
is withholding review of public records on the last 2 executions, which the
motion says were botched, Arthur's motion states.
"The Legislature's abdication of its role to set the state's execution law
violates the improper delegation doctrine and the Alabama Constitution,"
Arthur's motion stated. "The role of the legislature is particularly critical
given the controversial nature of the ADOC's current midazolam-based execution
Tommy Arthur is scheduled to die Thursday night for the 1982 murder of Troy
ADOC's current lethal injection protocol uses 3 drugs: midazolam, a sedative
that is used in medical practice to reduce anxiety; rocuronium bromide, a
paralytic; and potassium chloride, a chemical salt to stop the heart, according
to the motion.
"The choice of the 1st drug (midazolam) to be used is critical, because without
an effective anesthetic, the 2nd and 3rd drugs would cause unbearable pain,"
Arthur's lawyers state. "But the drug the ADOC chose (in secret), midazolam, is
not used in medical practice as a general anesthetic; rather, it is an
anti-anxiety sedative in the same drug family as Valium and Xanax, and its use
in lethal injection has been extremely problematic."
Hobbs in dismissing Arthur's complaint stated that Arthur should have filed it
as a Rule 32 petition, which would have been precluded from being filed as
being successive and past the deadline for such an appeal.
(source for both: al.com)
'It's mind over matter': Alabama prisoner faces execution date for the eighth
time----7 times in 16 years Tommy Arthur has had his execution delayed. As he
prepares for what could be his final appointment with the death chamber, he
tells Ed Pilkington about a grisly - and traumatic - cycle
Tommy Arthur is caught in a ghoulish production of Groundhog Day. 7 times over
the past 16 years he has been scheduled to be put to death in Alabama, and 7
times the courts have delayed the execution, most recently in November just
minutes before he was strapped to the gurney.
Now Arthur, 75, finds himself once again caught in this grisly cycle, with only
hours to go before his 8th and possibly final appointment with the death
chamber. At 6pm on Thursday, barring intervention by Alabama's governor or the
courts, he will be pumped with medical drugs until he dies.
To come so close to being killed by the state is extraordinary on any occasion,
but 8 times? How has he endured repeated execution dates in 2001, 2007, 2008,
2012, 2015, 2016 and now 25 May 2017?
"It's a question of mind over matter," Arthur said in a phone interview from
death row in Alabama's Holman correctional facility. "You can either let a
stressful situation break you so you can't breathe, or you hold on to hope and
use your every waking moment to fight."
By this late point in the process, most condemned inmates would be ordering
their final meal. Not Arthur. "I don't believe in that last meal baloney - I
never have the appetite. When they're trying to kill you, you're not hungry."
Other condemned prisoners at this stage would also be consoling themselves with
a stream of visits from their loved ones. Not Arthur. He gave up having
visitors after the sixth scheduled execution as the stress on both him and them
was too much.
"It almost killed my eldest daughter, Sherrie," he said. "She came to 6
execution dates, and the stress of her father about to be killed was so
traumatic it damaged her heart, she almost lost her business and home. So I
told her to disconnect, I didn't want her coming any more. She didn't come to
the 7th, and she won't be coming to this one."
Tommy Arthur has spent the past 34 years on death row.
Tommy Arthur is one of the longest serving capital prisoners in the US. He has
spent the past 34 years on death row, 25 of those in the same 5ft x 8ft cell
from which he emerges only briefly every other day to take a shower. He has a
vivid way of describing his living conditions: "You couldn't put a baboon in
this cell, they'd shut the zoo down."
Arthur was sentenced to death for the 1982 murder of Troy Wicker. The state
accused him of carrying out a contract killing at the behest of Wicker's wife
Judy, with whom Arthur had been having an affair; Judy Wicker was prosecuted
separately and given life imprisonment.
At the time of the murder, Arthur was out of prison on work release, having
served 5 years of a life sentence for the 2nd-degree murder of Eloise West, the
sister of his common-law wife. He pleaded guilty to that unpremeditated
killing, though he insisted it was an accident fueled by alcohol.
By contrast, he has always claimed innocence in the murder of Troy Wicker. Over
the years he has been deeply involved in pursuing his legal appeals, and speaks
of his own case with striking fluency and command of detail.
He points out that at her own trial Judy Wicker testified that the murderer was
a burglar in her home who had beaten her up and raped her before killing her
husband. It was only 5 years later, after she had been offered a deal to change
her evidence that would see her get out of prison after serving only 10 years,
that she pointed the finger at Arthur.
His lawyer, Suhana Han, emphasised the weakness of the prosecution case against
him. "Neither a fingerprint or a weapon, nor any other physical evidence
connects Arthur to the murder of Troy Wicker," she told the Guardian.
The prisoner and his legal team have been pushing for the latest DNA testing
technology to be applied to crime scene materials, though the courts have
rebuffed their requests and crucial evidence has gone missing. A rape kit taken
from Judy Wicker at the time of the murder was lost or destroyed years ago, the
state claims, while hairs found near the victim's body and in a wig presumed to
have been used by the killer have not been subjected to the most sophisticated
Arthur has sent a handwritten letter to Alabama's governor, Kay Ivey, pleading
with her, so far without reply: "Please Governor Ivey, don't kill me with this
evidence never being DNA-tested," he wrote.
Perhaps the best remaining hope for the condemned man is that the US supreme
court will once again step in and postpone the execution. His lawyers have an
emergency motion before the 11th circuit court of appeals relating to the
sedative midazolam that has been used in several botched executions in modern
Midazolam was deployed in the most recent Alabama execution of Ron Smith in
December, when the inmate heaved and coughed for 13 minutes. The motion argues
that were the state to go ahead and use midazolam again on Thursday, despite
what happened to Smith, it would be guilty of intentionally inflicting cruel
and unusual punishment on Arthur, banned under the US constitution.
As Thursday's deadline approaches, Tommy Arthur's room for manoeuvre closes.
Asked how he was preparing for the possibility that this time he might actually
be executed, he said.
He had only 1 wish: to be allowed to issue a public apology to his children. "I
failed them as a father, and I'm so sorry for that," he said.
As it happens, he will be able to deliver that message in person to Sherrie. A
few hours after the phone interview with Arthur had ended, a member of his
legal team contacted the Guardian to say that there had been a change of plan:
his eldest daughter had decided that despite the trauma she wanted to be
present - she will be by his side should his 8th summons to the death chamber
turn out to be his last.
(source: The Guardian)
OHIO----new/re-set execution date
Court schedules 2nd execution attempt for Ohio killer
The Ohio Supreme Court has set a new execution date for a convicted killer who
survived a botched execution attempt in 2009.
The court last week scheduled the lethal procedure for death row inmate Romell
Broom for June 17, 2020.
Broom was sentenced to die for abducting, raping and killing 14-year-old Tryna
Middleton in Cleveland in 1984.
The 62-year-old Broom is only the 2nd U.S. inmate to survive an execution after
the process began.
The state stopped Broom's execution after 2 hours in September 2009, when
executioners failed to find a usable vein following 18 attempts to insert
Cuyahoga County Prosecutor Michael O'Malley says Broom has stalled his
execution for years with appeals.
Broom;'s attorneys say Broom has important appeals still pending.
(source: Associated Press)
Solicitor: Suspect in murder of Ashtabula teen could face death penalty
The man accused of kidnapping an Ashtabula teen is now charged with her murder
and could face the death penalty if convicted.
In addition, 3 other people are charged in connection with the disappearance
and death of 13-year-old Kara Zdanczewski.
John Bove, who has been in the Mercer County Jail since Sharon, Pennsylvania
Police arrested him on May 11, has been bound over to the Ashtabula County
Grand Jury on charges of aggravated murder and kidnapping.
Bove is charged with murdering Zdanczewski, whose body was found in Saybrook
Township, which neighbors the city of Ashtabula.
3 other suspects from Ashtabula, Debra Bove, 47, Malachi Schultz, 20, and
Stanley Wilfong, 56, are charged with obstructing justice.
Schultz and Wilfong are also charged with tampering with evidence according to
Ashtabula City Solicitor Michael Franklin.
All 3 are in the Ashtabula City Jail.
Police note that Schultz was originally charged with complicity in murder and
kidnapping, but those charges are temporarily withdrawn pending and
The solicitor says more charges could be filed as the investigation continues.
Franklin says that a conviction on a charge of aggravated murder could result
in a sentence of life in prison or the death penalty. A kidnapping conviction
could bring a 3 to 11-year sentence.
Obstructing justice and evidence tampering are punishable with sentences of
between 9 months and 3 years in prison.
The cases are expected to be presented to a grand jury in Ashtabula County
which will decide if there is enough evidence to put the suspects on trial.
According to an affidavit, Zdanczewski's parents, who know Bove, asked him to
take the teen out of their home because they didn't want their daughter exposed
to an argument the 2 were having.
It was the last time they saw their daughter.
Bove is scheduled to appear before a district magistrate in Mercer County on
Wednesday to answer charges of fleeing an officer, receiving stolen property
and use or possession of drug paraphernalia, which were filed in connection
with his arrest in Sharon.
He remains in the Mercer County Jail on $1 million bond, and for a violation of
In 2013, a federal court convicted Bove of failing to register as a sex
offender when he was living in North Carolina.
He was sentenced to 33 months in prison and placed on supervised release for 5
years following the completion of his sentence.
The sex offender designation is the result of a 1990 rape conviction in New
(source: WFMJ news)
7th Circuit affirms denial of habeas relief
The 7th Circuit Court of Appeals has affirmed the denial of a man's petition
for habeas relief after finding he waived his argument of ineffective
assistance of counsel by not raising that argument in his habeas petition.
After being convicted of capital murder, rape, criminal confinement and
burglary, a judge imposed a sentence of death on Chijioke B. Ben-Yisrayl.
However, if the sentence did not hold up on appeal, the judge also imposed an
alternative sentence of 60 years and an aggregate term of 90 years on the
Ben-Yisrayl's death sentence was litigated on direct review and post-conviction
proceedings for several years in Indiana trial and appellate courts before
prosecutors withdrew their request for the death penalty and instead agreed to
the 60-year alternative. However, the 60-year sentence also was reversed on
appeal, but on resentencing, the trial court judge reimposed the same sentence.
Ben-Yisrayl's 60-year sentence was affirmed on appeal the 2nd time, but other
post-conviction proceedings and other issues were ongoing. Meanwhile,
Ben-Yisrayl began pursuing habeas relief in the U.S. District Court for the
Southern District of Indiana, but Judge Tanya Walton Pratt stayed the
proceedings while his state post-conviction review continued.
When the stay was lifted, the state of Indiana responded to Ben-Yisrayl's
habeas petition, but he failed to file his reply within the allotted time.
Pratt ultimately denied relief without an evidentiary hearing and also denied
Ben-Yisrayl's motion to alter or amend the judgment.
On appeal in Chijioke B. Ben-Yisrayl v. Ron Neal, 16-1013, Ben-Yisrayl argued
his resentencing counsel "was constitutionally ineffective for submitting a
meager 2-page sentencing memorandum and for failing to challenge the
prosecution's destruction of evidence." However, 7th Circuit Court of Appeals
Judge Diane Sykes wrote in a Monday opinion Ben-Yisrayl did not raise an
ineffective counsel argument in his habeas petition, except for a brief mention
in his Rule 59(e) motion to alter or amend judgment.
"The fleeting reference to this claim in Ben-Yisrayl's Rule 59(e) motion cannot
save it for appellate review; it is equally well-settled that a Rule 59(e)
motion is not an appropriate vehicle for advancing 'arguments or theories that
could and should have been made before the district court rendered judgment,'"
Thus, Ben-Yisrayl's argument on appeal was waived and the judgment of the
district court was affirmed.
(source: The Indiana Lawyer)
An Interview with Judge Wendell Griffen of Arkansas----"Impartiality does not
mean that the judge has no values. Impartiality does not mean the judge has no
views. Impartiality does not mean the judge is silent about his or her views."
Wendell Griffen is an ordained Baptist minister and circuit judge in Pulaski
County, Arkansas. On April 14, 2017, Judge Griffen issued a temporary
restraining order that effectively halted 6 scheduled executions, the 1st
applications of capital punishment in Arkansas since 2005. Judge Griffen
generated controversy that same day, Good Friday, when he joined an anti-death
penalty protest organized by his church outside the Arkansas Governor's
Mansion. Calls for Griffen's impeachment soon spread across the state. In a
special session last month, the state legislature, which has never impeached an
elected official since the adoption of the 1874 Arkansas Constitution, voted
73-13 to establish a legal framework for impeachment. Judge Griffen has
recently published a book The Fierce Urgency of Prophetic Hope (Judson Press)
and also manages a blog on faith and the law, Justice is a verb!
The Politic: Much of the controversy over your recent activity has centered on
the conflict between constitutional speech protections and judicial
impropriety. How do you manage that balance?
Wendell Griffen: It's quite easy: the business of a judge is to hear evidence
and to apply the law of the realm to the facts as the judge finds them. I have
no difficulty applying the law of Arkansas and the law of the United States to
the facts in cases presented before me, even when I find my personal views to
differ from that law. That's my obligation, the obligation of every judge: to
follow the law and to uphold the Constitution of the United States. And those
are not inconsistent norms. They are entirely consistent obligations. I have
the constitutional obligation to follow the law, and I have the constitutional
freedom to live out my faith. And both of those things can be done with great
comfort, even if people find the way I do so inconvenient or disagreeable.
TP: So can a judge also be an activist?
WG: I think a judge can be a human. And that means they can be activist if they
choose to be, or less activist if they choose to be. "Activist" is a term I
find to be rather value-laden. People call folks "activists" not based upon
whether or not the activity is permissible, but based on whether or not they
agree with the activity. If you like what the judge does, then the judge is
right. If you dislike what the judge does, the judge is an activist. I'd rather
say that I like being a judge who knows my obligations to the bench and knows
my freedom in society. And I recognize that those obligations and freedoms are
not necessarily inconsistent or contradictory.
TP: As an ordained minister, you draw great influence from the Bible, and the
Gospels in particular. How has your faith helped guide you over the past few
WG: The prophetic tradition, in both the Hebrew canon and culminating in the
life and ministry of Jesus, has been my prime source of inspiration. The
prophetic tradition is always a counter-narrative to what people accept as
conventional wisdom and prevailing thought. The tendency that we have in life
is to ignore the prophetic tradition when in fact it is the source from which
we get our notions of justice and mercy and peace. The prophetic tradition
teaches us that we shouldn't jump just because people say "Boo." If one is to
live a great life, one has to expect that people exercise power will take
offense and will engage in comments and acts that are threatening.
TP: In the Gospels, Jesus says to go forth and spread the Word to all nations.
How do you balance that imperative with the impartiality expected of judges?
WG: The impartiality needed to be a judge has to do with parties. The root word
of impartiality is "party." And the word impartiality means that one applies
the same standards to any party that appears before the judge, no matter who
that party is and no matter what the judge may hold as his or her personal
views. And so the sense of living out one's faith does not ever necessarily
pose a challenge to impartiality unless the judge is taking sides with a party
to a dispute and not applying the law evenhandedly to all parties.
Impartiality does not mean that the judge has no values. Impartiality does not
mean the judge has no views. Impartiality does not mean the judge is silent
about his or her views. Nor does impartiality mean that the judge's views, or
values, or expression of those views or values, somehow render that judge a
partisan. One does not become a partisan because one has opinions. I think we
have to have enough maturity as citizens and enough understanding of language
to recognize that fact. When Jesus says "go make disciples, go spread good
news" Jesus is simply saying to go spread to the whole of creation loving God
with one's whole person and loving one's neighbors as oneself - to live that
way, to respect God with one's entire being, and to respect all other persons
as oneself. And that is not in any way inconsistent with being a fair-minded
person. If anything, it's an expression of the ideal of fairness.
TP: Does the threat of impeachment from the Arkansas State House worry you?
WG: No, it doesn't worry me. One should not get worried about threats.
Otherwise one would be worried all the time. Threats are no more and no less
than that: threats.
TP: If you could go back, would you still attend that Good Friday protest?
WG: Yes, I would do the same thing again. I am always struck by the people who
find prophetic protest unbecoming. They haven't read much of the prophets of
the Old Testament. One of them [Isaiah] walked around naked. There are examples
in the Hebrew canon where the prophets acted out the proclamations they were to
give in much the same way you would see Saturday Night Live doing a caricature
of present-day political events. So I encourage us to take a deeper and wider
viewer of things, take some breaths, not get so strung out just because we find
ourselves displeased with what somebody does or how it comes across to us. As
long as the conduct is not violating the rights of other people or is not
immoral, we should respect the humanity of other people, to give them the room
to be human and to express their identity, even if we find ourselves
disagreeing with the way they express it.
TP: What draws you to service?
WG: I have been inspired to service since childhood by the Gospel of Jesus and
by my experience growing up in the segregated South during the 1950s. I know
firsthand what it means to live in an oppressive society where the decks in the
halls of law are stacked against one based upon personhood, whether it's racial
identity, sex, religion, nationality, and now sexual orientation, gender
identity, or ability status. I know what that means. And having grown up in
that environment, I was moved to dedicate myself to do 2 things: first, to
learn as much as I could about democracy and the rule of law; and, secondly, to
apply myself as much as possible to serve humanity in a way that is consistent
with my understanding of the religion of Jesus and the highest ideals of our
TP: The name of your blog is Justice is a verb! What does that mean to you?
WG: Justice is typically viewed as a noun - the name for either an office or a
process. Justice, however, must be understood as something that must be done.
We do justice. And I draw from the admonition in Micah, where the prophet
writes, what does the Lord require of me but to do justice and love mercy and
to walk humbly with God? Justice has to be done. And doing is verb stuff; doing
is not noun stuff. Doing is acting, protecting, defending, sharing. Justice
involves generosity, and welcoming, and inclusion, and refusing to allow the
status quo to operate as an excuse for oppression. Those are things that we
must do in order for justice to happen.
TP: What has the response been like from the public in Arkansas?
WG: Within and outside Little Rock, the overwhelming response I have received
has been positive, almost at the point of being inspirational. People say,
"Listen, Griffen, you're doing what we hope all justices, all judges, all
people of faith will do: act and live true to what you understand your
obligations are in your judicial office and your faith. We may or may not agree
with you, but we respect you your integrity, your courage to be forthright in
As people learn more about the facts surrounding my Good Friday ruling [which
temporarily halted 6 executions], I don't understand why people are upset, why
people want to impeach me. The response that I have received has been
overwhelmingly positive and heartwarming.
TP: Is gauging the public response important to you?
WG: No, because one has to be very careful not to use public opinion as a wind
gauge. Public opinion is not a compass. One must be led by something that
motivates action no matter what public opinion may be. Because public opinion
can be mistaken, misled. Jesus himself was a victim of that. Palm Sunday, he
comes into Jerusalem, saluted and celebrated. By Good Friday, he was vilified
and the multitudes demand he be put to death. So one has to be very careful not
to become intoxicated by the heady wind of public opinion. It is heartwarming
when people commend you. It's nice of them to do to take time out to pass on a
kind and encouraging word. But Abraham Lincoln was right: "Do right." Do right
and let the consequences deal with themselves. If I am wrong and public opinion
is wholly in my favor, I am still wrong. If I am right and public opinion is
totally against me, I'm still right. And I don't think I should decide whether
or not my opinion is right based on an opinion poll. I think I should make a
serious effort to decide whether my thinking and behavior is right and then as
best I can be true to those thoughts and live in a way that's faithful to my
ideal. And if the public finds that commendable, well then be it. If the public
commends me for it, then that is what the public has chosen to do. Martin
Luther King, Jr. went to his grave vilified as someone unpatriotic, opposed to
the war in Vietnam, an outside agitator, a race-baiter, and we know that the
people who vilified him were wrong.
TP: So you see something similar about being a citizen faithful to religious
texts and a judge faithful to legal texts?
WG: For sure. I remind people that every elected official in the United States
is required by the Constitution to swear an oath to support the Constitution of
the United States. In the wall of my judicial chambers, I have a poster of
Frederick Douglass with a quotation that I used recently in my blog in which
Douglass says, "There is no 'Negro problem.' The problem is whether the
American people have loyalty enough, honor enough, patriotism enough, to live
up to their own Constitution."
Loyalty, and honor, and patriotism are not throwaway words. They are ideals to
which we are obligated to live or to prove ourselves disloyal, dishonorable,
and unpatriotic. If we are unwilling to live up to the Constitution we swear
our allegiance to, then we are disloyal, unpatriotic, dishonorable,
And it's about a person following any faith system - I wouldn't limit it to
religion of Jesus. I think that we need to think of what I've talked about as
fidelity for one's conscience, regardless if someone's a religionist or a
secularist. Because that's the heart of the First Amendment, which protects our
freedom to have a religion or to have no religion at all. Some people might
find that fidelity in Buddhism, or in some other world religion. I find that
fidelity in the religion of Jesus as the highest and best expression of my
hope. Some people may find it in no religion at all. But what I'm trying to
talk about is our sense of commitment, our obligation to honor conscience. To
be true and loyal to something bigger than ourselves, our personal comfort, our
personal privilege, our personal prerogative.
TP: What message do you wish to tell the youngest generation?
WG: I would ask people of every age to remember that our democracy depends upon
people engaging in Socratic critique of ourselves and the systems and
ideologies around us. Our democracy does not run well when people put their
minds in park or in neutral. We have to be careful. And we have to have the
moral and emotional maturity, wisdom, and honesty to rethink our views, and to
acknowledge that at best we have only part of the answer, and that there might
be a truth we have not yet learned. Young people have a great potential to
question, to challenge. I would encourage young people to read, and to
challenge, and to think, and to rethink, and to dare when necessary to unthink,
to uproot, to tear down false notions that pass for truth. Young people can
build from the ashes something that is more likely to be true and to last.
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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