Black judge shouldn’t oversee white cop’s murder trial after posts about profiling, lawyers say

D. Morgan
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Judge Greg Griffin, a circuit court judge in Montgomery, Ala., is a habitual Facebook user with nearly 5,000 friends. He posts regularly, sometimes multiple times a day, and often shares life experiences.

In April 2016, he talked about one such life experience.

Griffin wrote in a lengthy Facebook post that he was stopped by police officers while he was walking in his neighborhood with a stick in his hand. The officers told him that they were looking for a man with a crowbar who fits his description. Griffin pointed out that he was not holding a crowbar, and that doing so wasn’t illegal to begin with. He then showed the officers a badge proving that he’s a judge.

“Throughout the ordeal the officers were courteous; however, it was aggravating to be detained when the only thing I was guilty of was being a black man walking down the street in his neighborhood with a stick in his hand who just happened to be a Montgomery County Circuit Court Judge in Montgomery, Alabama. Lord Have Mercy!!!!!” Griffin wrote.

Now, almost a year and a half later, Griffin’s post about his encounter with police — specifically his allegation that he was stopped solely because he is black — is being scrutinized.

The judge is presiding over a murder case involving a white police officer accused of shooting and killing an unarmed black man. Defense attorneys argue that what prosecutors say happened in February 2016, when Montgomery police officer Aaron Smith stopped Gregory Gunn, was “eerily similar” with Griffin’s personal experience with officers from the same police department. For that reason, they say that Griffin can’t be an objective arbiter of the law — at least not in Smith’s case — and he should recuse himself.

The Alabama Supreme Court must now decide whether it should force Griffin off the case. The court on Friday decided to postpone Smith’s October trial to allow the attorneys to present arguments.

Smith’s attorneys point to a state judicial ethics rule that says judges should avoid “all impropriety and appearance of impropriety.”

“The allegations against Officer Smith was that he stopped a black male in a high-crime area without justification … [Judge Griffin] did not directly compare himself to the case, but the analogy is there,” Roianne Conner, one of Smith’s attorneys, told The Washington Post.

Griffin’s judicial assistant said the judge is not able to comment on an ongoing case. He has said earlier that he will not recuse himself, and that the two situations had nothing to do with each other. Griffin wrote his Facebook post less than two months after the shooting and before he was assigned the case.

“This is not a stop-and-search case. This is a murder case,” Griffin told Conner in court, according to the Montgomery Advertiser.

The request to remove Griffin is the latest in a highly contentious and volatile case that ignited racial tensions in Montgomery, the birthplace of the civil rights movement. Gunn’s death set off several days of protests and prompted demands from politicians and Gunn’s family for Smith’s arrest.

The deadly encounter happened on Feb. 25, 2016, when Gunn, 58, was walking home from a late-night card game, and Smith, a young officer, was working the overnight shift.

Conner said her client was following orders from a supervisor to “stop anything that moves.” The officer spotted Gunn at about 3 a.m., dressed in all black and walking around a high-crime area besieged with burglaries. Smith’s attorneys say those were justifiable reasons to stop Gunn.

Conner said Gunn tried to escape as Smith was patting him down; a ? pipe fell out of his pocket during the struggle, she said. The two fought, with the officer hitting Gunn with his baton and using his Taser multiple times but to no effect, Conner said. Gunn then ran to a neighbor’s front porch, grabbed a five-foot-long painter’s pole and swung it at Smith. That’s when the officer fired five shots, killing Gunn.

In a heated exchange with reporters last year, Mickey McDermott, one of Smith’s lawyers, defended his client’s decision to use lethal force. He said Smith was simply trying to talk to Gunn, who escalated the situation by trying to escape and left the officer without any other choice but to shoot.

“You can twist words all you want, but let’s just stop. Let’s get the facts … Now, remember, this officer didn’t turn on his blue lights. He wasn’t making an arrest. He was getting out to talk to Mr. Gunn. Mr. Gunn made himself a suspect,” McDermott told reporters, according to the Montgomery Advertiser.

Montgomery County District Attorney Daryl Bailey disagreed that Smith had no other choice.

“Why did any of that happen — that’s the crux of the matter,” he told the Montgomery Advertiser.

Bailey was not available for comment Tuesday afternoon.

Gunn’s family says he was racially profiled and immediately regarded as a threat because of his skin color.

“They thought he was a lowlife nothing, walking the street,” Gunn’s brother, Franklin Gunn, told The Post earlier. “They didn’t see a man. They didn’t see a black man. They saw somebody who needed to die, and they executed him. Now they are trying to cover it up.”

Smith was charged with murder less than a week after the shooting. His attorneys criticized the prosecutor for how quickly he filed a murder charge, saying the process should have started with a grand jury investigation.

The case was eventually turned over to a grand jury, which indicted Smith in November.

[Officer shoots Ohio newspaper photographer after confusing his tripod and camera for a gun]

It has been pending since, with three other judges recusing themselves. One judge recused himself after learning that his son works for a law firm representing Smith in a federal lawsuit brought by Gunn’s family, the Montgomery Advertiser reported. The two other judges did not explain their decisions.

Last May, after Griffin was assigned to the case, Smith’s attorneys filed a motion asking the judge to recuse himself to avoid what they say would be an unfair trial.

“Here, your honor has been subjected to and spoke out against the same actions that will weigh heavily on the determination of Mr. Smith’s guilt or innocence in this matter,” according to the motion.

During a heated exchange in court last May, Griffin accused Conner, the defense attorney, of using his race against him.

“You brought race in here,” Griffin said, according to the Montgomery Advertiser. “I’m a black judge. I can take this black robe off, but I can’t take off this black skin. I live in west Montgomery. I live in the hood. Should I recuse myself from every criminal case that has happened on the west side?”

Conner shot back, telling The Post that Griffin should not preside over the case because of his Facebook posts, and not his race.

“To me, he was the one that was injecting the race issue in all of this. … I never made the allegation that I did not want an African American or black judge,” she said.

She added that judges, as a general rule, should not make public statements on social media, especially on sensitive issues.