Pubdate: Thu, 16 May 2002
Source: San Francisco Chronicle (CA)
Page: A2
Webpage: www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2002/05/16/MN234796.DTL
Copyright: 2002 Hearst Communications Inc.
Contact:  http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Adam Liptak, New York Times

DEATH ROW POT CHALLENGE

Inmates Want Probe Of Judge's Use During Years They Were Tried

Phoenix, Ariz. -- 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, and he is today a retired ski instructor in 
Carefree, just north of Phoenix. Now, two men he sentenced to death in the 
1980s are asking courts to look into whether his use of marijuana deprived 
them of a fair trial.

When the U.S. Court of Appeals in San Francisco 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, Alex Kozinksi, on the three-judge panel noted there 
was no proof that Marquardt's drug use affected his performance on the 
bench, and he said the decision invited intrusion into judges' personal lives.

John Pressley Todd, an assistant attorney general, said there is no 
principle to distinguish questions about Marquardt's marijuana use from 
inquiries into all sorts of matters that might influence judicial 
decision-making. "What about a divorce or loss of a child?" Todd said.

Marquardt concedes that he used marijuana regularly in the years in which 
he sentenced the two men to death.

"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 Marquardt sentenced to death in 1988, says 
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 requesting leniency 
for him based on his cocaine addiction. But Marquardt took the opposite 
view, 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."

Marquardt also decided the fate of Warren Summerlin, who was convicted of 
sexually assaulting and then killing a debt collector in 1981. On a 
scorching Friday in the summer of 1982, Marquardt heard final arguments on 
whether 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."
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