I’ve frequently shared the wiring of Circuit Judge Wendell Griffen on matters of race and law enforcement. I’ve often noted, too, that I tend to side with those who think — however much I might agree with some of the things the judge has written — that judges should be more circumspect in public comments.
Others are far more harshly critical of Griffen than I.
So here we go again. In this essay, the judge explains why he writes and why he thinks he must — the disparity in treatment of whites and blacks in the justice system and the lack of understanding of the legal system are chief among his reasons.
I am not persuaded that the reasons justify the appearance of potential partiality that can be fostered by a sitting judge writing on such matters. The next time he presides over a case in which a white Little Rock police officer has brutalized or killed a black suspect there will inevitably be some who’ll question his ability to be fair given his expressed view about racial disparity in treatment of suspects. But, again, I don’t find much to quarrel with in what moves him to speak.
UPDATE: Following Griffen’s essay is another rejoinder from David Stewart, the retired director of the Arkansas Judicial Discipline and Disability Commission, who takes exception to Griffen’s defense, making the point I made earlier about race in criminal trials he might hear.
WHY I WRITE ABOUT WRONGS
©Wendell Griffen, 2014
Some question why I, a trial judge, post on social media. They believe judges should not comment about controversial social issues such as police brutality, racial disparity in how police interact with people of color, racism, and cultural incompetence within the legal system that undermines public confidence in it.
Like millions of other people around the world I have a Facebook account. After Michael Brown, Jr., an unarmed black teenager, was killed by Darren Wilson on August 9 in Ferguson, Missouri I posted several essays on my Facebook page. In those essays I criticized the cultural incompetence of the Ferguson and St. Louis County, Missouri political and law enforcement establishment.
I posted more essays after a St. Louis County, Missouri decided not to charge Wilson with a crime for killing Brown due to a grand jury process marked by glaring impropriety. I posted comments on Facebook after a grand jury in Staten Island, New York decided not to charge New York Police Department Officer Daniel Pantaleo with a crime for choking to death Eric Garner, an unarmed 43 year old black husband and father, on July 17 of this year.
I’ve remarked about the glaring contrasts between how the police interacted with unarmed Michael Brown, Jr., unarmed Eric Garner, and toy pistol wielding twelve year old Tamir Rice of Cleveland (by summarily executing them) and how Clive Bundy and Eric Frein have been treated.
Eric Frein is a white man who allegedly shot and killed a Pennsylvania state trooper and seriously wounded another one, evaded custody for several weeks before he was recently taken into custody, alive.
Clive Bundy is a white Nevada cattle rancher who was judged guilty of illegally grazing his cattle on federal land. When federal agents captured some of Bundy’s trespassing cattle earlier this year Bundy led a band of people in an armed assault on the federal officers. To this day, Clive Bundy has not been arrested for leading that armed assault on law enforcement officers. Clive Bundy is alive.
The glaring disparity in the way law enforcement officers treat people of color and how they treat white people isn’t a pleasant topic to think, talk, or write about. I do so, however, because the issue will not be corrected unless and until we do so.
As a judge, I have more than ordinary insight into the problem. I’ve graduated from law school, practiced law as an attorney, served as a trial and appellate judge, taught law school, written scholarly articles about law, and been involved in many seminars, workshops, and other events that deal with law and justice.
I write about cultural incompetence (within law enforcement and elsewhere) because I have more than ordinary insight about social injustice and human relations. That was part of the work I did as an Army officer. I’ve continued working, speaking, and consulting with leaders and institutions since then.
Although some people believe judges shouldn’t comment publicly about controversial social issues, that belief is mistaken. As long as we don’t comment about cases actually pending in our courts or actual cases that may end up in our courts judges are free to speak, write, sing (yes, judges sing), create visual art (yes, some judges are also visual artists), and otherwise communicate about anything we find interesting, including controversial social issues.
The general public doesn’t understand what a grand jury is, how it is supposed to work, and the legal principles that govern its functioning. The general public doesn’t understand how a grand jury differs from a trial (petit) jury. If judges and lawyers don’t comment about these and other subjects related to our justice process then public thought and conversation will be driven by misinformation, misunderstanding, and even deceit.
Some judges don’t choose to publicly comment about controversial social issues. Their choice doesn’t mean that other judges who choose to comment are wrong, unwise, or damaging the judicial system.
Some people don’t like it that I criticize unjust behavior by people in law enforcement. Public servants, including those in law enforcement, deserve respect. They equally deserve criticism when they harm others, not favoritism. The police have no right to be free from criticism.
Police who kill unarmed people aren’t above the law that governs everyone else. I shouldn’t be a judge if I can’t see and say that.
FROM DAVID STEWART
Judge Griffen’s second posting which attempts to justify his first one again misses the point.
He says he has a unique insight into how bad the system is and how the country is in a “descent into Hell” and the white police are the modern day lynchers of black men. Ok. So how is the State of Arkansas going to get a fair trial the next time Judge Griffen has a case before him in which a white police officer is the chief prosecuting witness and the defendant is a poor black man? Judge Griffen is now on record as indicting all white police officers as modern day lynchers of black men.
Judge Griffen fails to state his responsibility to avoid the appearance of bias in cases that come before him. However, in my opinion, Judge Griffen has forewarned the world that he cannot be fair and impartial when faced with cases similar to those of which he speaks. When he tells the Arkansas Supreme Court he will no longer sit in criminal cases then I will affirm his right to speak passionately about the bad police and the poor downtrodden.
In case there are a couple of people out there who misunderstand my point, here it is again: Judges must always maintain a public position of being fair and impartial to all lawyers, parties, and witnesses who come before him or her. That means everyone, and it means not only actually, but also in appearance. Judge Griffen has failed to do that. He states that as long as he does not speak to cases before him then he can comment on any social issue he chooses, especially since he his uniquely qualified to do so. Not so. If his social commentary conveys a public position that shows an inherent bias against people who may come before him he has ethically disqualified himself from sitting on those cases, now and in the future. His ethical failure requires that he disqualify himself from sitting on any such cases.
I have supported Judge Griffen’s right to make public pronouncements on social issues in the past, and he is well aware of that. However, even now there are ethical limits as a judge that he has now surpassed.
I have no doubt that there is a social and legal disparity in the way some white police officers treat some black people. I too have the experience that qualifies me to reach that conclusion. But, as a judge, I would never conclude in my own mind, or by my social commentary, that therefore all such cases must be so. However, that is the definitive position Judge Griffen has taken by isolating four notorious cases and deemed all cases thusly.( I suspect he intellectually knows better. If he doesn’t then the problem is bigger than I thought.) If I want to use my position to further what I deem to be social and racial injustice, then I am required to step off the bench and devote my time and efforts in a capacity similar to that of the late Dr. Martin Luther King, Jr. I encourage him to do so. I think his intellect and ability to communicate would make him a great advocate for racial and social justice when directed from a different capacity.