October 13, 2001
A New Twist Against
Convicted Killer Wins
Appeal Over Judge's Drug Use
Los Angeles Times
October 13, 2001 pg. A18
by Henry Weinstein,
Times Legal Affairs Writer
A man who has spent nearly 20 years on death row in
Arizona is entitled to have his sentence reconsidered because the judge who
imposed it was addicted to marijuana at the time, a sharply divided federal
appeals court ruled Friday.
"The experts tell us that we can tolerate a certain
number of insignificant parts of arsenic in our drinking water and a certain
irreducible number of insect parts in our edible grain supplies," U.S. 9th
Circuit Court of Appeals Judge Stephen S. Trott wrote in the 2-to-1 decision.
"But we need not, and we should not, similarly tolerate a single drug-addicted
jurist whose judgment is impaired, especially in a case involving life-and-death
"If it is against the law to drive a vehicle under the
influence of marijuana, surely it must be at least equally offensive to allow a
judge in a similar condition to preside over a capital trial," added Trott, a
former prosecutor who was appointed by President Reagan.
Judge Alex Kozinski issued a sharp dissent, maintaining
that his colleagues had taken "a giant leap into the unknown by ordering
discovery and a hearing on whether Judge [Philip] Marquardt's marijuana
addiction affected his rulings."
In Arizona, a state trial judge has the sole power to
determine whether a defendant convicted of first-degree murder receives a death
sentence. That differs from most states where jurors are asked to make a
The Arizona attorney's general's office conceded that
Marquardt's use of the drug was in full bloom at the time of the trial....
Marquardt's marijuana problem emerged several
years after the trial. In 1991, he pleaded guilty to a felony involving a
conspiracy to possess marijuana and "admitted to suffering from an addiction to
the drug," Trott wrote. This was Marquardt's second conviction involving the use
"The majority's opinion will open the floodgates to
similar claims by --quite literally-- tens of thousands of state and federal
prisoners within this circuit," Kozinski wrote.
Trott, joined by Circuit Judge Sidney R. Thomas,
scoffed at Kozinski's prediction of dire consequences. "We seriously doubt the
inflated assertion that thousands of state and federal judges will somehow fall
within the ultra violet rays cast by our holding," Trott wrote.
On the other hand, "if Judge Kozinski's speculation
about the vulnerable state of the judiciary should surprisingly turn out to be
correct and that our benches are indeed occupied by judges against whom similar
cases involving illegal drug usage and addiction can be made, this would seem to
be an argument in favor of an inquiry, not a reason to look the other way,"
Northwestern law professor Steven Lubet, an expert on
judicial behavior, said Trott's reasoning seemed unassailable but added that he
understood Kozinski's concerns about a large number of investigations based on
similar claims. "This case exposes the raw intersection of judicial decision
making and administrative imperatives," Lubet said.
* * *
Judge Steve Trott and I have known each other on
a friendly basis for the past twenty years. Every time one of my cases came
before Trott in the Ninth Circuit Court of Appeals, Trott made known his
knowledge of me to the other side and excused himself from the case.
Prior to his appointment to U.S. Attorney by
President Ronald Reagan for the County of Los Angeles and six other
California Counties, and then to the Ninth Circuit, Trott and I sat down and had
a serious discussion on Constitutional issues and intents of our Founding
Fathers. I was at the right place at the right
- Ron Branson
Given the absurdity of Mr. Kozinski's argument here, as brought forth by
Mr. Trott in his argument in the same ruling no less, isn't it funny how
Mr. Kozinski later tried to bolster his public appearance by currying favor
from the demonstrators during the demonstration in front of the 9th Circuit
courthouse in Pasadena, CA on May 3rd, 2002?
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