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."