Condemned prisoners say judge was high on drugs

In many US courtrooms, being caught with marijuana can lead to hard time in prison. For many years in the criminal court in Phoenix, Arizona, however, the man with the pot habit was a judge, and now two men sentenced to death on his say-so want their cases reopened and their sentences commuted.

Admittedly, it has been a long time since Philip Marquardt served on the bench. He lost his job following a second conviction for marijuana possession in 1991, and promptly moved to the mountains to work as a ski instructor.

But the legacy of his 20-year career lives on, offering a rare opportunity for two convicted killers to argue themselves off Death Row, and also stirring up an impassioned legal debate about where the public interest in a judge's personal habits ends and where his right to privacy begins.

The first successful strike against Judge Marquardt came several months ago, when the Arizona State Court of Appeals controversially agreed that a convicted murderer, Warren Summerlin, had the right to call a hearing to determine whether the judge was high on drugs at the time he passed sentence in 1982. That hearing has yet to take place.

Now a second prisoner, Richard Rossi, has come forward. He was not tried in Judge Marquardt's courtroom, and only appeared before him for a brief re-sentencing hearing in 1988 after his original death sentence was vacated by the state Supreme Court.

But drugs were very much at the forefront of the discussion. Rossi's lawyers tried to argue that there were mitigating circumstances because he was high on cocaine when he killed a man over a typewriter in 1983. Judge Marquardt, who later acknowledged he had a drug addiction himself, refused to view this as a reason to reduce his sentence.

Bizarrely, Judge Marquardt later called on Rossi's doctor to help prepare his own defence. "There is a lot of irony here," Rossi said in an interview with The New York Times. "We both had addiction problems. I acknowledged mine. He didn't acknowledge his."

Opponents of capital punishment have largely applauded Summerlin's success in getting his case reopened, and deplored what they see as the cavalier attitude of the judge in a matter of life and death. Both defendants allege that Judge Marquardt, in addition to his drug habit, fell asleep in court, and there is evidence he paid for his drug habit with money sent in official court envelopes.

The Court of Appeals ruling in Summerlin's favour said it was "shocking" to think that a judge could pass a death sentence while under the influence of an "illegal mind-altering substance".

This opens a can of worms because the Summerlin case hinges not on an observation that the judge was high in court, but the suspicion that he may have smoked pot while he considered the case over a weekend. One Appeals Court judge wrote a dissenting opinion saying judges had the right to imperfect private lives, and many legal scholars agree. The debate continues.