JUDGE'S MARIJUANA USE PROMPTS APPEALS BY DEATH ROW INMATES

PHOENIX - 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. Today he is a retired ski instructor in
Carefree, just north of here.

Now, two men whom he sentenced to death in the 1980s 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.

"Holy as severe"When a federal appeals court 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 on the three-judge panel noted that there was no proof
that Marquardt's drug use affected his performance on the bench. 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,"
wrote the judge, Alex Kozinksi.

John Pressley Todd, another assistant attorney general, said there was no
principle to distinguish questions about Marquardt's marijuana use from
inquiries into all sorts of matters that might influence judicial
decision-making.

"If this is a legitimate inquiry," 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," Lubet said. But he
disagreed about the assertions involving Marquardt, saying, "Wherever the
line is, it is somewhere well short of a double conviction for illegal drugs."

Admits marijuana useMarquardt conceded in an interview that he used
marijuana regularly in the years in which he sentenced the two men to death.

Marquardt, 68, spent 20 years on the bench. "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."

Marquardt sentenced Richard Michael Rossi, 54, to death in 1988. Speaking
by telephone from death row in Arizona State Prison, Rossi 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, Rossi submitted a doctor's report seeking leniency
based on his cocaine addiction. But 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, Marquardt hired the same doctor Rossi used to prepare a
report in connection with his sentencing on drug possession charges,
seeking leniency on the basis of marijuana addiction. Marquardt regrets
that now.

In addition to agreeing to resign his judgeship, 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 Rossi's
hearing, Marquardt was given a suspended sentence. He was later suspended
from the bench without pay for a year by the Arizona Supreme Court.

Marquardt also decided the fate of Warren Summerlin, who was convicted of
sexually assaulting and then killing a debt collector in 1981. At
Summerlin's trial in the summer of 1982, Marquardt said he deliberated
"over the weekend" on whether Summerlin should be put to death.

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."

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."

Kozinski wrote that "no doubt hundreds" of convicted criminals may
challenge the fairness of their trials before the former judge.

While he defended his conduct on the bench, Marquardt 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."