CONVICTED KILLER WINS APPEAL OVER JUDGE'S DRUG USE

Federal Jurists Split 2 To 1 On Whether The Ruling Allows Defendants To Pry
Into Private Lives.

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.