Griffen’s ‘dog bite’ rule within the law, he says

Pulaski County Circuit Judge Wendell Griffen’s “dog-bite” rule - his stated preference for prison over probation for violent offenders - is in full accord with the law, Griffen states in a written order rejecting a defense attorney’s complaint that the judge’s stance is unfair and grounds for the judge to withdraw from hearing cases involving violence.

In his six-page order, Griffen states that attorney Mac Carder is really attempting to claim that his client has a guaranteed right to be sentenced to probation. There’s no basis in the law for that kind of claim, the judge wrote.

“Defendant’s arguments amount to a naked assertion of a right - arising from fundamental fairness - to be sentenced to probation after conviction of a felony that, by its very definition, involves purposeful conduct aimed at causing physical injury to another person,” the ruling states. “Defendant cites the court to no authority, in Arkansas or elsewhere, that guarantees any defendant a right to probation. These [defense]arguments enjoy little, if any, support in the law and are at best premature.”

It’s also too early to complain about something Griffen hasn’t done, the judge wrote, saying Carder should wait until the judge has imposed sentence before questioning its legality.

The attorney’s challenge also “fails for the glaring reason that defendant has no right to probation,” the judge wrote.

“It is axiomatic that one must have a right before that right can be abridged, and thus, amount to a … violation. Here, defendant fails to assert any cognizable right.”

Griffen states he is disinclined to impose probation for violent crimes, in part because Arkansas sentencing statutes require the judge to consider whether a probated sentence will discount the seriousness of the offense. An important part of sentencing, under the statute, is to protect the public by “restraining offenders,” the judge wrote.

“A disinclination to place a person who commits the violent felony of battery in the second degree on probation is both consistent with Arkansas law and commonsense,” the judge wrote. “People who purposely engage in conduct that causes physical injury to other persons pose a danger to public safety and peace. Imprisonment removes the risk of that danger. The court’s ‘dog bite rule’ is squarely in line with statutory law.”

Carder’s request that Griffen recuse from hearing violent cases based on accusations that Griffen is being unfair is also meritless, the judge wrote. Griffen stated that he is treating Carder’s client no differently than he would treat any other defendant.

“Defendant only advances a bare assertion that the court should disqualify itself, but presents no argument attacking the impartiality of the court,” the judge wrote, “Far from demonstrating partiality on the part of the court or otherwise showing that the court is applying the law to her in any way different from any person in her situation, defendant’s assertions demonstrate the court’s impartiality.”

The “dog bite rule” takes its name from analogy by Griffen comparing the treatment of dogs who bite to how offenders who commitviolent offenses should be treated.

“Everybody knows if your dog bites, you pen your dog. You chain your dog, but you don’t let your dog run,” the judge said in an August hearing. “If I give probation then the folks who bite are walking around to bite anybody they want to.”

The case involves Mashieka Murphy, 33, of North Little Rock who was accused of hitting Charles Gaither over the head with a bottle. Gaither had told Murphy’s boyfriend, Carlos Deshard Austin, 24, that she had cheated on him, court filings show.

Austin and his brother Willie Jonte Austin, 25, subsequently beat up Gaither, and they were each sentenced to prison for first-degree battery, court filings show.

Murphy had wanted to plead guilty to the second-degree battery charge in August in exchange for a sentencing recommendation of five years on probation by prosecutors, but the judge, who has the final say on the sentence, said he would not impose probation. So instead of entering a plea, Murphy goes to trial on April 1.

Northwest Arkansas, Pages 17 on 03/23/2014

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