Pulaski County Circuit Court Case: 60CR-20-4204 – State v. Mitchell Steven Wine
Judge Wendell Griffen ordered Mitchell Wine to jail last week because Wine appeared pro se (without an attorney) at his plea and arraignment hearing for two counts of alleged terroristic threatening in the first degree. This order goes against established U.S. law that allows defendants to represent themselves in criminal proceedings when they “voluntarily and intelligently” choose to do so, unless they are mentally incompetent or the case is being heard on direct appeal. Fortunately, Little Rock attorney Matthew Campbell (who originally declined to take the case) entered his appearance Wednesday on Wine’s behalf. Still, the questions remain: Why did a judge try to throw someone in jail for failing to hire a lawyer? Is it constitutional for a state to imprison someone because no private attorney would take his case?
Legal Context:
It seems un-American to jail someone because a bunch of lawyers refused to represent him. A person is only supposed to be punished when he or she does something wrong, not when a disinterested attorney makes a decision about how to run their private legal practice. However, American law is based on English law, and the 15th-century English Star Chamber used to hold that a defendant whose Answer hadn’t been signed by counsel had effectively confessed to the crime. Maybe Judge Griffen is reaching back to this precedent, rather than to the precedent established by the U.S. Supreme Court in Faretta v. California (1975), which held that the Sixth Amendment guarantees people the right to represent themselves in criminal proceedings. However, it’s more likely that Judge Griffen’s decision to hold Wine in contempt and send him to jail is based on Griffen’s own determination that Wine is incompetent to represent himself.
Neither the State nor Mr. Wine has openly argued that Wine is mentally incompetent, at least in this proceeding. The court has not heard any testimony regarding Wine’s mental capacity or mental health. Instead, on April 19, Judge Griffen based his determination of Wine’s “incompetence” on Wine’s inability to list all of the exceptions to the hearsay rule in the Arkansas Rules of Criminal Procedure off the top of his head upon request. (For the attorneys in the audience: Is this something every lawyer could do if a judge demanded it? I bet even experienced lawyers would want to check a law library before they gave a definitive answer. This sort of barrier to self-representation is exactly what Faretta hearings are supposed to protect us against.)
Case History:
Since the court had already found Wine not to be indigent, Wine did not financially qualify to have a public defender provided by the taxpayers. Wine offered to pay for a public defender out of his own pocket if the court would appoint one, but Judge Griffen declined to appoint an attorney. Therefore, Wine attempted to hire a private attorney. This turned out to be nearly impossible, though — probably because Wine’s alleged victims are all practicing Arkansas attorneys, and Arkansas Attorney General Leslie Rutledge also has an interest in the case. Most Arkansas attorneys refused to take Wine’s case at any price, but at least one attorney suggested he would be willing to represent Wine for an initial retainer of $15,000 if Wine signed an agreement not to participate in the case in any way, or to discuss it with anyone. Since this case stems from allegations of public corruption, which can only be stopped through public inquiry and public discourse, Wine refused to sign such a contract.
According to police affidavits, Wine is being charged with felony terroristic threatening in Pulaski County because he allegedly emailed two members of the Arkansas Claims Commission, Kathryn Irby and Henry Kinslow, who then cc’ed a third attorney, Chris Madison, indicating that Wine (like all of us) was empowered to perform citizen’s arrests of public officials whom he suspected were committing felonies based on credible material evidence.
Wine apparently sent this email because the Claims Commission had recently dismissed his claim against the Arkansas Game and Fish Commission (AGFC) for trespassing on his property on December 14, 2017. The AGFC admits its wildlife officer John Crisman “removed a pin from an electric gate-opener motor actuator arm” in order to enter Wine’s property during a warrantless visit to Wine’s home, but claims the officer had Wine’s permission to do so, which Wine denies and the AGFC has not substantiated. Instead, Wine has presented substantial evidence that the AGFC was attempting to stop Wine from blowing the whistle on dangerous environmental violations along the Buffalo River by seizing a U.S. Government-issued computer that Wine used in his work as a biologist for the U.S. Fish and Wildlife Service. Nevertheless, the Claims Commission dismissed Wine’s complaint, and refused to investigate further.
Environmental Whistleblowing:
Wine’s work computer, according to Wine, contains “information implicating Arkansas agencies in endangered species violations related to Arkansas Department of Transportion projects and the Buffalo River Hog Farm (C&H Hog Farm).” This hog farm has been a source of contention since it opened in 2012, although neither the AGFC nor the Arkansas Department of Environmental Quality (ADEQ) opposed the hog farm’s operations or its detrimental effect on endangered species. In 2014, volunteer water testers reported experiencing intimidation tactics — including threats of violence and arson — employed by supporters of the hog farm in an effort to avoid environmental regulation. Mitchell Wine became a whistleblower in 2015, and continued his work for three more years before being medically retired.
By 2019, citizen complaints and federal scrutiny forced Governor Asa Hutchinson to “negotiate” a buyout of the hog farm — at a cost of $6.2 million dollars plus $749,000 for cleanup operations — by Arkansas taxpayers. Hutchinson has admitted the state never should have granted a permit to the hog farm in the first place, but his administration appears not to be taking any measures to clean up the permitting process, to hold state agencies accountable for their willful blindness, or to press charges against the goons who tried to scare volunteer water testers away from the Buffalo River during the year before Wine began blowing the whistle.
Wine’s Bond Hearing:
The concept of a citizen’s arrest is established, as Wine points out in the email at the heart of his criminal case, in two Arkansas statutes: A.C.A. 16-81-106 and A.C.A. 5-2-611. Wine’s email reassures its recipients that he “mean[s] nothing unlawful” and acknowledges that the law only permits “reasonable force.” Wine’s email also notes that Arkansas law reserves the use of “deadly force” for situations in which the citizen attempting to make the arrest finds his life is in danger. At Wine’s bond hearing in District Court last fall, a deputy prosecutor from Prosecuting Attorney Larry Jegley’s office characterized this email thus: “[Wine] stated that the law allows him to use deadly force if necessary to make [a citizen’s] arrest.”
At the same bond hearing, the deputy prosecutor also noted that Saline County had issued a warrant for Wine’s arrest on a misdemeanor “harassing communications” charge. This charge is based on the same email as the one that resulted in felony charges for alleged terrorist threatening in Pulaski County, but since Chris Madison claims to have opened the email at his home in Saline County (rather than in his Pulaski County office), Wine is being criminally charged in both counties simultaneously.
Neither Judge Wayne Gruber nor the deputy prosecuting attorney said that the allegations in the police affidavits constitute a crime. Instead, Judge Gruber said he was greatly concerned by the “large number of prominent and not-so-prominent individuals” whom Wine had allegedly threatened to arrest, and that he believed Wine “might take certain action to perpetrate the [threats] that [Wine] allegedly made.” Therefore, Judge Gruber set Wine’s bond at $150,000 and issued no-contact orders, including an order preventing Wine from contacting Stark Ligon, then the Executive Director of the Arkansas Supreme Court Committee on Professional Conduct. Ligon was not named in any affidavit as an alleged victim of Wine’s terroristic threatening, but at Wine’s bond hearing, the deputy prosecuting attorney told Judge Gruber that Wine had also made a threat of citizen’s arrest against Mr. Ligon, so the judge issued a no-contact order on the strength of those allegations, without any supporting affidavits.
Judge Compton’s Recusal:
The Ligon no-contact order protected Deputy Prosecuting Attorney Robert Jones from being reported by Wine for ex parte communications with the office of Judge Cathleen Compton, who took over Wine’s criminal case when it was transferred to the circuit court. On January 29, 2021, Jones emailed Judge Compton’s staff without including Wine on the email, informing them that he had “major concerns that [Wine was] about to violate his district court no contact orders,” and asking for the earliest possible date for a plea and arraignment hearing. Although ex parte communication may be permitted in limited circumstances, the Arkansas Bar Association considers ex parte communication to be unethical when it “bear[s] upon the substance of the matter” or if the judge does not immediately give the other party an opportunity to respond.
Look, I’m a law student, not a lawyer — but doesn’t it seem like a deputy prosecuting attorney’s assessment of a defendant’s character, shared with a judge in an effort to prevent a defendant from sending emails indicating grounds for citizen’s arrest, might be unconstitutional “prior restraint” of free speech? Either way, Wine didn’t get a chance to defend his character to the judge immediately, so it looks pretty unethical from where I’m sitting.
On February 3 at 8:51 AM, Wine filed a motion to disqualify Judge Compton based on the ex parte communication she received from the prosecuting attorney without giving Wine an opportunity to defend himself. Approximately an hour later, Judge Compton recused herself from the case, citing a “decades long personal relationship with Henry Kinslow, the alleged victim in this case.” Although Judge Compton’s recusal order does not mention the ex parte communication Wine pointed out in his motion to disqualify her, Judge Compton’s decision not to recuse herself as soon as the case was assigned to her (but rather to wait until the day Wine moved for her disqualification on other grounds) is, itself, a violation of Rule 2.11 of the Judicial Code of Conduct.
New Felony Charge for “Failure to Appear”:
Judge Griffen took over from Judge Compton, opted neither to sanction the prosecuting attorney nor report Judge Compton, and determined that Wine would either have to hire a private attorney or go to jail. Griffen found Wine in contempt of court on May 24th and ordered Wine to report to Pulaski County jail for imprisonment. Although Wine did not report to jail, Mitchell Wine did appear (as always, pro se) in front of Judge Griffen at 9:30 AM on May 27, 2021 to explain that he had been unable to hire a private attorney as ordered. Nineteen minutes later, the court issued a new warrant for Wine’s arrest, on the felony charge of “failure to appear,” despite the fact that Wine actually did attend the hearing, and despite the court’s decision not to hold a hearing on whether to revoke Wine’s bond.
Thank goodness Mitchell Wine finally has an attorney. He needs a good one, since he’s up against the Attorney General, the Arkansas Bar, and the entire executive branch.
Very enlightening. thank you for writing about this.