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 has ruled.

                "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," Judge Stephen Trott of the
                Ninth United States Circuit Court of Appeals wrote in
                the 2-1 decision on Friday.

                "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 Judge Trott, a former
                prosecutor who was appointed to the bench by
                president Ronald 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".

                Several legal experts said they knew of no death
                sentence 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
                the University of California at 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. In most states jurors
                are asked to make a recommendation.

                Friday's ruling means that Warren Summerlin, who was
                convicted of murdering a woman with an axe in 1981, 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 force at the time
                of the trial, but said Summerlin had not demonstrated
                that he was entitled to a hearing.

                Marquardt's marijuana problem emerged several years
                after the trial. In 1991 he pleaded guilty to conspiracy to
                possess marijuana and "admitted to suffering from an
                addiction to the drug", Judge Trott wrote.

                It was his second conviction involving the use of
                marijuana. Eventually he stepped down from the Bench
                and was disbarred. 

A MAN who has languished for nearly 20 years on death row in Arizona is
entitled to have his sentence reviewed because the judge who sentenced him
may have been high on marijuana, the US Court of Appeals has ruled.
“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,” Judge Stephen S. Trott
said in the 9th Circuit Court of Appeals, which presides over appeals in the
nine western states.

Warren Summerlin was convicted of murdering a woman with an axe in 1981 in
Tempe, Arizona. The appeal court ruling means that his sentence will be
reviewed if it is shown that the discretion of Judge Philip Marquardt, who
presided over the trial, was impaired by marijuana.

In 1991 Judge Marquardt pleaded guilty to marijuana possession in Texas and
admitted to being under the influence of the drug regularly since 1975. It
was Marquardt’s second marijuana conviction. He later stepped down from the
bench and was disbarred.

“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,” Judge
Trott said in his written judgment.

In a dissenting minority opinion, Judge Alex Kozinski said: “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. There is
nothing to suggest that the addiction affected Marquardt’s judgment or
interfered in any way with his judicial duties.

Judge Kozinski feared that the judgment would result in “fishing
 expeditions” into judges’ private lives and habits and that if marijuana
use by American judges was widespread it would “open the floodgates to
similar claims by — quite literally — tens of thousands of state and federal
prisoners”.

Judge Kozinski said Summerlin should have offered proof that the judge’s
smoking of marijuana had influenced his murder conviction.

He 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”.

However, Judge Trott said: “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 favour of an inquiry, not a reason to look the
other way.”

He said that “we should not similarly tolerate a single drug-addicted jurist
whose judgment is impaired, especially in a case involving life-and-death
decisions.”

The primary legal precedents cited by Judge Trott for his decision were from
cases involving the competency of juries, starting with a US Supreme Court
decision from 1912, which held that a defendant was entitled to a post-trial
hearing after questions were raised about the sanity of a juror.

                      PHOENIX - 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."

                      Marquardt lost that job and his license to practice law after his second marijuana
                      conviction, in 1991. Today he is a retired ski instructor in Carefree, just north of
                      here.

                      Now, two men whom he sentenced to death in the 1980s 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.

                      "Holy as severe"When a federal appeals court ordered a hearing to consider
                      evidence about one of the prisoners' assertions, the majority quoted
                      Shakespeare: "He who the sword of heaven will bear/ Should be as holy as
                      severe."

                      The dissenting judge on the three-judge panel noted that there was no proof that
                      Marquardt's drug use affected his performance on the bench. 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," wrote the judge, Alex
                      Kozinksi.

                      John Pressley Todd, another assistant attorney general, said there was no
                      principle to distinguish questions about Marquardt's marijuana use from inquiries
                      into all sorts of matters that might influence judicial decision-making.

                      "If this is a legitimate inquiry," 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,"  Lubet said. But he disagreed about the
                      assertions involving Marquardt, saying, "Wherever the line is, it is somewhere well
                      short of a double conviction for illegal drugs."

                      Admits marijuana useMarquardt conceded in an interview that he used marijuana
                      regularly in the years in which he sentenced the two men to death.

                      Marquardt, 68, spent 20 years on the bench. "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."

                      Marquardt sentenced Richard Michael Rossi, 54, to death in 1988. Speaking by
                      telephone from death row in Arizona State Prison, Rossi 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, Rossi submitted a doctor's report seeking leniency based on his cocaine
                      addiction. But 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."

                      Three years later, Marquardt hired the same doctor Rossi used to prepare a
                      report in connection with his sentencing on drug possession charges, seeking leniency
                      on the basis of marijuana addiction. Marquardt regrets that now.

                      In addition to agreeing to resign his judgeship, 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 Rossi's hearing, Marquardt
                      was given a suspended sentence. He was later suspended from the bench without
                      pay for a year by the Arizona Supreme Court.

                      Marquardt also decided the fate of Warren Summerlin, who was convicted of sexually
                      assaulting and then killing a debt collector in 1981. At Summerlin's trial in the
                      summer of 1982, Marquardt said he deliberated "over the weekend" on
                      whether Summerlin should be put to death.

                      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."

                      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."

                      Kozinski wrote that "no doubt hundreds" of convicted criminals may challenge the
                      fairness of their trials before the former judge.

                      While he defended his conduct on the bench, Marquardt 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.""

Two men who were sentenced to death by a judge who admitted smoking marijuana are asking the
courts to consider whether his drug use deprived them of a fair trial.

Philip Marquardt, a former Superior Court judge in Phoenix, Arizona, lost his job and was fined
after a marijuana conviction in 1991.

The cases of the two inmates he sentenced to be executed in the 1980s have raised concerns over
judicial privacy, drug use, and whether extra scrutiny should be employed in death penalty cases.

Judges and prosecutors worry that allowing criminal defendants to examine the human element in the
judicial process will have enormous consequences.

John Pressley Todd, an assistant attorney general, says there is no principle to distinguish questions
about Mr Marquardt's drug use from inquiries into matters that might influence his decision making.

"If this is a legitimate inquiry," Mr Todd said, "what about a divorce or loss of a child?"

The 68-year-old former judge conceded he was using marijuana regularly in the years in which he
sentenced Warren Summerlin and Richard Rossi to death.

Summerlin was convicted in 1982 of sexually assaulting and murdering a woman. Rossi was found
guilty of killing a man over the sale of a typewriter in 1983.

Mr Marquardt, who spent 20 years on the bench, said: "By the very nature of marijuana you don't
wake up drugged up or glazed over. I walked into the courtroom clear headed, clear eyed and
absolutely in control of my intellectual abilities."

But Rossi said: "There is a lot of irony here. We both had addiction problems. I acknowledged mine.
He did not acknowledge his."

 SAN FRANCISCO (AP) ---- A federal appeals court set aside an Arizona death row inmate's
 sentence Friday, ruling that the condemned murderer is entitled to hearings on whether the
 marijuana addiction of the judge who oversaw his trial tainted the outcome.

 The decision could affect hundreds of criminal cases tried before the Maricopa County judge, who
 was thrown off the bench after a 20-year career for a marijuana conviction.

 The case decided Friday concerns Warren Summerlin, who was found guilty of first-degree
 murder in the 1981 slaying of Brenna Bailey, 36.

 The Tempe finance company administrator's body was found in the trunk of her car a day after she
 visited Summerlin to check on money he owed.

 Summerlin was convicted in 1982 and was sentenced to death for murder and to 28 years in
 prison for sexual assault.

 The Arizona Supreme Court and lower federal courts upheld Summerlin's conviction and sentence.
 But a divided three-judge panel of the 9th U.S. Circuit Court of Appeals said Friday the
 condemned man is entitled to hearings on whether the trial judge was high on marijuana when he
 decided to have Summerlin executed.

 Under Arizona law, after a capital offender is convicted, a judge has sole discretion whether to
 sentence the defendant to death.

 "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," Judge
 Stephen S. Trott wrote.

 Judge Philip Marquardt presided over Summerlin's trial. Marquardt pleaded guilty in 1991 to
 marijuana possession after being arrested in Texas. He was removed from the bench and
 disbarred. Marquardt, who at the time admitted that he was suffering from an addiction to the
 drug, has denied he was impaired when deciding whether to have Summerlin executed.

 In dissent, Judge Alex Kozinski said that "there is no proof whatever" that the judge was
 "incoherent or intoxicated" while presiding over Summerlin's case. Kozinski added that
 Summerlin's case could affect hundreds of cases tried before Marquardt's 20-year judicial career.

 "The majority's ruling is particularly unfortunate because Summerlin is in precisely the same position
 as every other criminal defendant tried, convicted and sentenced in Judge Marquardt's courtroom
 during the latter's 20-year judicial career," Kozinski wrote. "Under the majority's ruling, every one
 of these individuals -- and there are no doubt hundreds of them -- could petition to have their
 sentences set aside."

 But the majority said that Summerlin was entitled to evidentiary hearings on whether the judge's
 marijuana use made him incompetent when deciding the defendant's fate. Trott said evidentiary
 hearings will determine "the connection, if any, between the judge's chronic use of illegal drugs, his
 alleged addiction, and his performance during this case as a judge."

 Neither the Arizona Attorney General's Office nor Summerlin's attorney were immediately
 available for comment.

 The case is Summerlin v. Stewart, 98-99002.

                   Warren Summerlin #045318
                  Arizona State Prison - Eyman
                                  SMU II
                             PO Box 3400
                          Florence, Arizona
                              85232  USA

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