JUDGE'S DRUG USE MAY PROMPT REVIEW OF KILLER'S DEATH SENTENCE

Los Angeles Times

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.

"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,'' wrote 9th U.S.
Circuit Court of Appeals Judge Stephen S. Trott in the 2-1 decision.

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 previous 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-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.

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
effect Marquardt's long-term use of marijuana may have had on his trial.

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 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.

The primary precedents cited by Trott for his ruling were from cases
involving the competency of juries.

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.