ISSUE IN 2 DEATH SENTENCES: JUDGE'S DRUG USE

PHOENIX, May 15 - 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
second marijuana conviction, in 1991, and he is today a retired ski
instructor in Carefree, just north of here. Now, two 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 three-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."

Three 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.
Ma rquardt 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 two-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?"