Convicted Killer Wins Appeal Over Judge’s Drug Use

A man who has spent nearly 20 years on death row in Arizona is entitled to have his sentence reconsidered because the judge who imposed it was addicted to marijuana at the time, a sharply divided federal appeals court ruled Friday.

“The experts tell us that we can tolerate a certain number of insignificant parts of arsenic in our drinking water and a certain irreducible number of insect parts in our edible grain supplies,� U.S. 9th Circuit Court of Appeals Judge Stephen S. Trott wrote in the 2-to-1 decision. “But we need not, and we should not, similarly tolerate a single drug-addicted jurist whose judgment is impaired, especially in a case involving life-and-death decisions.

“If it is against the law to drive a vehicle under the influence of marijuana, surely it must be at least equally offensive to allow a judge in a similar condition to preside over a capital trial,� added Trott, a former prosecutor who was appointed by President Reagan.

Judge Alex Kozinski issued a sharp dissent, maintaining that his colleagues had taken “a giant leap into the unknown by ordering discovery and a hearing on whether Judge [Philip] Marquardt’s marijuana addiction affected his rulings.�

Kozinski said the ruling invited unwarranted fishing expeditions into judges’ private lives and represented “a disaster for the administration of justice in the nine Western states,� including California, which are in the 9th Circuit’s jurisdiction.

Several legal experts said they knew of no previous death sentences being reviewed because of a judge’s alleged mental impairment. “If this is not unique, it is extraordinarily unusual,� said Elisabeth Semel, director of the death penalty clinic at UC Berkeley’s Boalt Hall School of Law.

In Arizona, a state trial judge has the sole power to determine whether a defendant convicted of first-degree murder receives a death sentence. That differs from most states where jurors are asked to make a recommendation.

Friday’s ruling means that Warren Summerlin, who was convicted in the 1981 ax murder of a woman in Tempe, is entitled to a hearing on the possible impact of Marquardt’s long-term use of marijuana.

The Arizona attorney general’s office conceded that Marquardt’s use of the drug was in full bloom at the time of the trial, but asserted that Summerlin had not made an adequate showing that he was entitled to a hearing.

Marquardt’s marijuana problem emerged several years after the trial. In 1991, he pleaded guilty to a felony involving a conspiracy to possess marijuana and “admitted to suffering from an addiction to the drug,� Trott wrote. This was Marquardt’s second conviction involving the use of marijuana. Eventually, he stepped down from the bench and was disbarred.

A woman involved in the 1991 drug matter told Phoenix police that Marquardt had been a “frequent user of marijuana� when she met him in 1975 and had been ever since.

The primary precedents cited by Trott were from cases involving the competency of juries, starting with a 1912 U.S. Supreme Court decision that held that a defendant was entitled to a post-trial hearing after questions were raised about the sanity of a juror in the case.

As a consequence of those rulings, “Summerlin had a clearly established constitutional right in 1982 to have his trial presided over, and his sentence of life or death determined by, a judge who was not acting at that time under the influence of, or materially impaired by a mind-altering illegal substance such as marijuana,� Trott wrote.

Kozinski said he agreed that a criminal defendant “is entitled to a tribunal that is both impartial and mentally competent.� But he said that nothing in the record suggested that Marquardt was intoxicated or incoherent.

“We have no indication, even as of the time of Judge Marquardt’s conviction, whether this addiction involved hourly, daily or weekly use of the drug, nor do we know whether it had become progressively worse over the years� Kozinski wrote. “There is nothing to suggest that the addiction affected Marquardt’s judgment or interfered in any way with his judicial duties.

“Many addicts function normally in their professional lives, performing their jobs well enough so that their co-workers suspect no problem,� the jurist added.

Kozinski, who like Trott was appointed by Reagan, said he parted company with the majority as to the showing a defendant “must make before he will be allowed to rummage through a judge’s private life, looking for proof that the judge’s addiction, illness or other mental impairment may have affected his judgment.�

“The majority’s opinion will open the floodgates to similar claims by--quite literally--tens of thousands of state and federal prisoners within this circuit,� Kozinski wrote.

Kozinski said that in order to be entitled to a hearing, Summerlin should have offered more specifics on the judge’s conduct.

For example, he said, Summerlin “might have presented affidavits from those who observed the trial, to the effect that Judge Marquardt was seen staggering when mounting or leaving the bench; that he had a glazed stare during the proceedings; that he had trouble comprehending arguments; that he fell asleep in court.�

By the majority’s reasoning, Kozinski said, any other defendant convicted and sentenced during Marquardt’s 20-year career on the bench could raise the same claim as Summerlin.

Trott, joined by Circuit Judge Sidney R. Thomas, scoffed at Kozinski’s prediction of dire consequences. “We seriously doubt the inflated assertion that thousands of state and federal judges will somehow fall within the ultraviolet rays cast by our holding,� Trott wrote.

On the other hand, “if Judge Kozinski’s speculation about the vulnerable state of the judiciary should surprisingly turn out to be correct and that our benches are indeed occupied by judges against whom similar cases involving illegal drug usage and addiction can be made, this would seem to be an argument in favor of an inquiry, not a reason to look the other way,� Trott wrote.

Trott stressed that Friday’s decision will not lead to a cascade of new hearings. He said that a defendant making such a request must be able by specific allegations to demonstrate a reason to believe that if the facts are fully developed he will be able to demonstrate that he is illegally confined and therefore entitled to relief.

Northwestern law professor Steven Lubet, an expert on judicial behavior, said Trott’s reasoning seemed unassailable but added that he understood Kozinski’s concerns about a large number of investigations based on similar claims. “This case exposes the raw intersection of judicial decision making and administrative imperatives,� Lubet said.