UPDATE: State appeals execution drug ruling, asks removal of Griffen as judge

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CAPITOL PROTEST: The state says Jdge Wendell Griffen's attendance at this rally is among reasons he shouldn't hear a case about use of a drug in executions. - BRIAN CHILSO
  • Brian Chilso
  • CAPITOL PROTEST: The state says Jdge Wendell Griffen's attendance at this rally is among reasons he shouldn't hear a case about use of a drug in executions.
The attorney general's office today asked the Arkansas Supreme Court to set aside Judge Wendell Griffen's temporary order against the use of a paralytic drug in state executions, an order that would have effectively stopped the killings. A federal judge's order later halted all executions for constitutional reasons.

The state pleading said McKesson, the distributor of Pfizer's vecuronium bromide, didn't have a case to stop the use of the drug. It also said Griffen shouldn't have heard a case pertaining to executions because he was an opponent of the death penalty who'd participated in death penalty protest events both before and ofter his ruling on Friday.

Here's the state's petition.
UPDATE: Shortly afternoon today, the state said it had also filed notice of appeal of a federal court execution stay with the 8th U.S. Circuit Court of Appeals. It was a brief notice of appeal, without arguments on the reason to overturn Judge Kristine Baker's preliminary injunction.

Griffen has written on his blog that it is immoral for the state to use drugs to kill and he attended death penalty protests at the Capitol that began at 1:30 p.m. Friday and then participated outside the Governor's Mansion around 5:30 p.m. by lying on an improvised gurney to depict a condemned prisoner. Said the state:

Judge Griffen cannot be considered remotely impartial on issues related to the death penalty. Judge Griffen has demonstrated that he is unlikely to refrain from actual bias regarding matters related to the death penalty, and at a minimum, he cannot avoid the appearance of unfairness and his impartiality might reasonably be questioned.
The case says that McKesson would be irreparably harmed by use of the drug in an execution, a use prohibited by the manufacturer and in agreements between McKesson and buyers. The state has testified that it misled McKesson to obtain the drug for executions.

The state's petition opens with objections to Griffen's participation, then outlines procedural arguments against a temporary restraining order — such as the verification of facts alleged in the complaint by a Little Rock lawyer who was not a participant in the state's dealing with McKesson. It also protested short notice and improper service of the complaint. It says, too, that Griffen was without jurisdiction to issue an order in the case, as the Supreme Court had ruled in two earlier death cases in which he issued orders.

The merits of McKesson's complaints about the state's dishonest dealings? The state said the Supreme Court need not consider the merits of the case because of jurisdiction and procedural problems. But:

Even if Judge Griffen and McKesson had complied with Rule 65, and Judge Griffen had jurisdiction to issue a stay of executions, and the complaint was not barred by sovereign immunity, McKesson would remain unlikely to succeed on the merits because McKesson has failed to state a cause of action against Petitioners. McKesson attempts to assert numerous claims—rescission, replevin, unjust enrichment, and so on—but most if not all of the claims asserted by McKesson are remedies, not causes of action. In any event, the bottom line is that McKesson willingly sold a drug to the ADC and then experienced seller’s remorse. McKesson asked ADC to return the drug after the transaction but the ADC declined. None of the claims asserted by McKesson, nor any statute or common- law theory, support McKesson’s apparent belief that a person who purchases a product must use that product in a certain way as dictated by the seller after the transaction or must return the product on demand by the seller. 
As for the claim that McKesson would be harmed by association with an execution:

McKesson’s tireless platitudes about the vast reputational injury that it claims it will suffer by association with Arkansas’s executions are entirely incredible and implausible. McKesson has never said or done anything to intentionally associate itself with executions. If McKesson had done a bit more legal research beyond searching for legal claims that don’t exist under the facts of this case, McKesson would have discovered that its identity as a supplier of execution drugs (even if unwitting) is expressly confidential under Arkansas law. ... Given Petitioners’ duty to protect McKesson’s confidentiality under the confidentiality provisions of the method-of-execution-act, it is simply untrue that McKesson would be publicly associated with Arkansas’s executions if not for the fact that McKesson decided to publicly announce that the ADC will be using a drug purchased from McKesson by filing this lawsuit.
The personal criticism of Griffen (and McKesson's lawyers) continued:

The complaint and the motion for a TRO in this case are so lacking in legal merit as to be worse than frivolous. This Court should put a stop to the games being played by a Judge who is obviously unable to preside over this case impartially and who is doing everything possible to insulate review of his stay of executions.
No word yet on when the Supreme Court will take up the petition. They've acted speedily against Griffen before. It slapped him down the same day he issued an order compelling release about information on manufacturers of execution drugs.

The state cited this Easter-themed blog post by Griffen, who's pastor of a Baptist church"

While the world meditates about divine love, forgiveness, justice, and hope, Arkansas officials plan to commit a series of homicides. Acting in the name of empire and operating under the authority of law, they plan to use medications designed for treating and healing disease to kill men who are defenseless because those men were convicted of killing other defenseless persons.

... Using medications designed for treating illness and preserving life to engage in such premeditated and deliberate killing is not morally justifiable.



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