In Summerlin v. Stewart (9^th Cir. 2001) 267 F.3d 926, a death row inmate alleged that the judge who sentenced him to death in 1982, former Arizona Superior Court Judge Philip W. Marquardt, may have decided the case, at least in part, while under the influence of marijuana. The prisoner convinced the Ninth Circuit that he should be allowed to investigate the circumstances surrounding the Judge’s decision; in particular, whether or not the judge smoked marijuana on the weekend before he imposed the death sentence.

In spite of an illustrious career as a jurist, during which his decisions were affirmed ninety percent of the time on appeal, (See id. at 964.) the Ninth Circuit held that if Judge Marquardt had smoked marijuana while simultaneously thinking about the Summerlin sentencing, or even thought about the Summerlin sentencing on the same day he smoked marijuana, then his decision would necessarily be tainted because marijuana is an illegal mind-altering substance.

In 1988, Judge Marquardt was suspended from the bench for a year following a misdemeanor conviction for possession of less than 9/10s of a gram of marijuana, which was found in his pocket when he was searched entering Texas from Mexico. (See In re Marquardt, 778 P.2d 241, 242, 252 [1989].) At his trial, Judge Marquardt testified that a stranger gave him the small packet wrapped in plastic that was found in his watch pocket, and that he “should have known it was there.” (Id. at 243.) In 1991, Judge Marquardt was convicted of conspiracy to possess marijuana, a felony, and subsequently disbarred. (See Summerlin, 267 F. 3d at 949.); In the Matter of Disbarment of Philip Walter Marquardt, 503 U.S. 902 (1992). During his second trial, Judge Marquardt professed to being a marijuana “addict,” although the basis for this statement by the Judge was probably less a statement of science than a plea for leniency. (See Summerlin 267 F. 3d at 949.) Relying exclusively on Judge Marquardt’s personal legal history, the Court determined that Judge Marquardt might have smoked marijuana during the weekend he made his sentencing decision, and, if so, Mr. Summerlin could not have received a fair trial on the issue of whether or not he should be put to death. (Id. at 950.) The Court concluded that Summerlin had a right to a mentally competent tribunal and therefore a “clearly established constitutional right … to have his trial presided over, and his sentence of life or death determined by, a judge who was not acting at that time under the influence of, or materially impaired by, a mind-altering illegal substance such as marijuana.” (Ibid.)

The Ninth Circuit’s opinion, written by Judge Trott, seems more informed by anger and self-righteousness than reason, at one point comparing a marijuana-smoking judge to arsenic in the water supply. (Id. at 955.) Judge Trott wrote:

This is disturbing for what is left unsaid: does Judge Trott’s legal conscience not recoil at the thought of a judge making life or death sentencing decisions while under the influence of a legal mind-altering substance? If Judge Marquardt had been addicted to alcohol, what then? What if Judge Marquardt had been taking a legal prescription drug, perhaps Valium, would his reasoning then have passed Constitutional muster? If so, what if Judge Marquardt had taken a Valium prescribed for his wife, instead of for him? Under those circumstances, the same Valium would have been an illegal mind-altering substance simply because the Judge had not telephoned his own doctor. Would Judge Marquardt’s reasoning have been deemed Constitutionally sound if he had been taking Valium prescribed for him, and unsound if he had been taking Valium prescribed for his wife? In answer to this perplexing question, Judge Trott answered that this case “is not about prescription drugs or painkillers…. It is about…illegal drug use, of crimes, and of addiction to an illegal mind-altering substance, one that distorts perceptions and degrades judgment.” Fully aware of the can of worms he was opening, Judge Trott took care only to use the words “mind-altering substance” in conjunction with the word “illegal” throughout his opinion. Apparently, then, judicial reasoning is suspect if a mind-altered judge is simultaneously committing a crime, and not so if the same mind-altered judge is not committing a crime. Had Judge Marquardt been blotto on martinis when he was thinking about Mr. Summerlin’s sentence, Mr. Summerlin’s death sentence would stand.

In light of the fact that only the use of illegal mind-altering substances was decried by the Summerlin majority opinion, it seems clear that impaired judicial thinking was not truly at issue. Judge Trott’s opinion was prefaced by a line from Measure for Measure: “He who the sword of heaven will bear should be as holy as severe,” and Judge Trott expressed outrage that Judge Marquardt had once paid for marijuana with a money order enclosed in a Superior Court envelope. (Id. at 954.) Outrage may be a reasonable reaction when one contemplates a judge committing the same crime for which he sentences defendants in his courtroom to jail. But if Judge Trott really believes the rest of his own reasoning, then judges must never take any substance that impairs their thinking, not alcohol, not Valium, not Vicodin, except perhaps if they are on an extended vacation during when they will not think at all about their cases. As Judge Kozinski asked in his dissent, “[d]oes a fleeting thought on a subject while intoxicated then vitiate all of the judge’s sober deliberations?” Apparently, according to Judge Trott, only if the judge is intoxicated via an illegal mechanism.

More recently, however, the Ninth Circuit drew a distinction between marijuana use and marijuana impairment in United States v. Patzer, No. 00-30360, 2002 DJDAR 467 (9th Cir. filed January 14, 2002). Although the case primarily addressed searches incident to arrest and statutory construction, in the Patzer case a driver stopped for a broken taillight admitted that he had smoked marijuana that evening and was placed under arrest and charged with, among other charges, driving under the influence. Although Mr. Patzer passed the field sobriety test (for alcohol), he “showed eyelid tremors that suggested marijuana use.” Remarkably, because of the wording of the statute under which he was charged, conviction required that the prosecution prove that Mr. Patzer had not only smoked marijuana prior to driving but that he had smoked marijuana “to a degree which impairs the driver’s ability to safely operate a motor vehicle….” (Id. at 468.) Because Mr. Patzer had passed the field sobriety tests, the Court held that the police officer “did not have probable cause to believe that Patzer’s ability to drive was impaired.” (Ibid.) Based on the distinction in the Idaho statute between “narcotic drugs” and “non-narcotic drugs” (including marijuana), the Court advised that the arrest was unlawful and that there was “no basis to conclude that impairment may be presumed upon admission of use of [marijuana].” (Ibid.) This is only pertinent to the Summerlin case because Judge Trott observed that “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.” Apparently (at least in Idaho), it is possible to drive a car under the influence of marijuana and not be impaired. More significant is that at least three Ninth Circuit Judges were comfortable drawing a distinction between marijuana usage and marijuana impairment. (Patzer, 2002 DJDAR at 468.)

In his dissent from Judge Trott’s majority opinion, Judge Kozinski also draws a distinction between use and impairment from use, arguing that if a judge is impaired while performing judicial functions, it is of no consequence to the parties if the substance is illegal, like marijuana, or legal, like alcohol or a prescription drug; as a matter of due process, “what matters is the impairment, not whether it was achieved by legal or illegal means.” (Id. at 962.) Not only that, but Judge Kozinski acknowledged that mental impairment is the “stuff of life,” resulting from sickness, tragedy, alcohol, as well as via illegal mechanisms. (Ibid.) Thus, there is no reason to single out impairment via illegal mechanism as Judge Trott did if impairment is at issue.

That distinction is not present in Judge Trott’s Summerlin opinion, and it is arguable that Judge Trott believes that the use of any illegal mind-altering drug permanently impairs rational thought, as if the illegality of the mechanism has an additional debilitating effect on thought processes. If Judge Trott believes illegal acts degrade rational thought, this should have been elucidated more clearly. If Judge Trott believes marijuana degrades thinking ability, he need not have specified that only illegal mind-altering substances result in such impairment. As written, Judge Trott’s opinion seems to be laying a foundation for later rulings based on the presumption that marijuana smokers cannot think, a conclusion that is better suited to scientific analysis than the rulings of moralizing judges.