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Issue in 2 Death Sentences: Judge's Drug Use
The judge bought marijuana
by mail. He paid with a cashier's check, and
he used the office stationery.
The envelope bore a handsome imprint:
"Philip Marquardt, Superior
Court Judge, Phoenix, Arizona."
Mr. Marquardt lost that
job and his license to practice law after his 2nd
marijuana conviction,
in 1991, and he is today a retired ski instructor
in Carefree, just north
of here. Now, 2 men he sentenced to death in the
1980's are asking courts
to look into whether his use of marijuana
deprived them of a fair
trial.
Their assertions test
attitudes about whether using drugs while not
working should be of
concern in the workplace, about how much extra
scrutiny is warranted
in death penalty cases and about the limits of
judicial privacy. Judges
and prosecutors worry that allowing criminal
defendants to examine
the human element in the judicial process will have
enormous consequences.
"There is a floodgate
that can be opened here," said Robert L. Ellman, an
Arizona assistant attorney
general.
When a federal appeals
court ordered a hearing to consider evidence about
the assertions of one
of the prisoners, Warren Summerlin, the majority
quoted Shakespeare:
He who the sword of heaven will bear
Should be as holy as severe.
The dissenting judge on
the 3-judge panel, Alex Kozinski, noted that
there was no proof that
Judge Marquardt's drug use had affected his
performance on the bench,
and he said the decision invited intrusion into
judges' personal lives.
"Judges rightly expect
to have medical histories, family tragedies, even
occasional overindulgences
in intoxicating substances, remain private,"
Judge Kozinksi wrote.
John Pressley Todd, another
assistant attorney general, said there was no
principle to distinguish
questions about Judge Marquardt's marijuana use
from inquiries into all
sorts of matters that might influence judicial
decision making.
"If this is a legitimate
inquiry," Mr. Todd said, "what about a divorce
or loss of a child?"
Steven Lubet, a professor
at Northwestern University Law School, said
unwarranted intrusions
were a real danger.
"Desperate defendants
should not be allowed to rummage through judges'
personal lives," Professor
Lubet said.
But he disagreed about
the assertions involving Judge Marquardt, saying,
"Wherever the line is,
it is somewhere well short of a double conviction
for illegal drugs."
Mr. Marquardt conceded
in an interview that he used marijuana regularly
in the years in which
he sentenced the two men to death. Sipping a soft
drink by the pool at
a golf resort outside town, Mr. Marquardt talked on
Monday about his past
and its significance for the men he sentenced to
death. He acknowledged
once having had a taste for the fast life, "but it
never carried onto the
bench," he said.
Mr. Marquardt, 68, who
spent 20 years on the bench, is fit and vigorous,
and he was in a reflective
mood. "By the very nature of marijuana you
don't wake up drugged
up or glazed over," he said. "I walked into the
courtroom clearheaded,
clear-eyed and absolutely in control of my
intellectual abilities."
Richard Michael Rossi,
54, whom Mr. Marquardt sentenced to death in 1988,
speaking by phone from
death ow in Arizona State Prison, said of the
judge: "There is a lot
of irony here. We both had addiction problems. I
acknowledged mine. He
didn't acknowledge his."
At his sentencing hearing
for killing a man in a dispute over the sale of
a typewriter in 1983,
Mr. Rossi submitted a doctor's report seeking
leniency based on his
cocaine addiction. But Judge Marquardt took the
opposite view at the
court hearing, saying, "I want it to be clear that
this court finds that
the cocaine addiction does not negate the factors
of the cruel, heinous
or depraved factors."
3 years later, Judge Marquardt
hired Mr. Rossi's doctor to prepare a
report in connection
with his own sentencing on drug charges, seeking
leniency on the basis
of marijuana addiction. He now regretted that, Mr.
Marquardt said; "marijuana
is just not that addictive."
In addition to agreeing
to resign his judgeship, Mr. Marquardt was
sentenced to probation,
fined $20,000 and forced to give up some of his
retirement benefits.
For his first offense, which was in 1988, a month
after Mr. Rossi's hearing,
Mr. Marquardt was given a suspended sentence.
He was later suspended
from the bench without pay for a year by the
Arizona Supreme Court.
Mr. Marquardt said he
did not remember Mr. Rossi, but he said he had no
doubt that the death
penalty was warranted. "These guys have sentenced
themselves," he said.
In Arizona, judges rather
than juries decide whether defendants convicted
of capital crimes should
be sentenced to death. The United States Supreme
Court will soon decide
whether that is constitutional, and the appeals
court decision about
Mr. Marquardt's drug use has been withdrawn while
the parties wait to see
how the Supreme Court will rule on that separate
issue.
Judge Marquardt also decided
the fate of Mr. Summerlin, who was convicted
of sexually assaulting
and then killing a debt collector in 1981. On a
scorching Friday in the
summer of 1982, Judge Marquardt heard final
arguments on whether
Mr. Summerlin should be put to death, and, he said,
"over the weekend."
Two decades later, the
appeals court focused on that comment. The
majority was troubled,
it wrote, "by the fact that Judge Marquardt
deliberated and made
the key life or death decisions in this case `over
the weekend,' while not
on the bench or on public view."
Mr. Marquardt said he
did not recall that particular weekend, but added,
"I certainly haven't
admitted using marijuana on the bench or during my
deliberations."
Judge Kozinski wrote that
"no doubt hundreds" of convicted criminals
might challenge the fairness
of their trials before the former judge.
While Mr. Marquardt defended
his conduct on the bench, he said he
believed an inquiry into
it was appropriate: "When you have initial
proof, as Summerlin does,
that the judge who sentenced him used drugs, I
think that triggers an
entitlement to ask questions."
Whether justice would
be served by such questioning turns in large part
on how marijuana use
is viewed. The chronic abuse of marijuana "renders
smart people average
and average people stupid," the appellate court
majority wrote.
"If it is against the
law to drive a vehicle under the influence of
marijuana," the majority
said, "surely it must be at least equally
offensive to allow a
judge in a similar condition to preside over a
capital trial."
Judge Kozinski wrote that
Mr. Summerlin should have offered specific
evidence of on-the-job
intoxication before the court ordered a hearing.
He gave several examples
of possible proof. One was a statement by a
courtroom observer that
the judge fell asleep in court.
Mr. Rossi, whose appeal
is pending before the same court, said he had
offered such proof. Judge
Marquardt had not presided over Mr. Rossi's
trial, but it fell to
the judge to resentence him in 1988 after the
Arizona Supreme Court
reversed a previous death sentence. The hearing
started at 11:30 a.m.,
paused at noon for a 2-hour break and ended at 4:40.
Mary Durand, an investigator
who was a member of Mr. Rossi's defense team
and was at the hearing,
said Judge Marquardt slept through much of it.
"This was not a two-minute
nod-off after lunch," Ms. Durand said. "This
was slumber." She estimated
that the judge slept for 30 minutes at one
point, woke up and fell
asleep again. She took notes at the hearing. They
concluded, "Pity Marquardt
slept thru most of this!"
Mr. Ellman, who represents
the state in Mr. Rossi's appeal, has reviewed
the transcript of the
hearing. He said there was no support in it for Ms.
Durand's assertion. "The
judge appears to be very coherent and tracking
the evidence accurately,"
Mr. Ellman said.
Mr. Rossi recalled his
frustration. He said he and Ms. Durand cleared
their throats loudly,
banged pens on the table and tried to get the court
clerk's attention, all
to no avail.
Mr. Rossi said he deserved
a hearing to examine whether marijuana played
any role in his death
sentence.
In his dissent in the
Summerlin case, Judge Kozinski questioned just what
such a hearing might
show.
"Even if Judge Marquardt
did think about Summerlin while under the
influence of marijuana,
it's not clear why this would taint his
decision," he wrote.
"Does having a fleeting thought on a subject while
intoxicated then vitiate
all of a judge's sober deliberations? Or is the
test whether the judge
actually made up his mind under the influence? How
would one know?"
(source: New York Times)
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