Judges who smoke marijuana are not qualified to preside over capital trials, so said the Ninth Circuit Court of Appeals last Friday. While this conclusion is not-at-all surprising coming from the federal judiciary, Summerlin v. Stewart, 2001 U.S. App. LEXIS 21733 (9^th Cir., October 12, 2001) raised some very interesting questions about the nature of “judging,” and whether any person is truly qualified to be a Judge.

The pre-history of the Summerlin prosecution is long and tortured, but boils down to this: in the early 1980s, a certain mentally disturbed Mr. Summerlin impulsively bashed in a bill collector’s head with a hammer, and was charged with murder.  Continuing to exhibit poor judgment, Mr. Summerlin declined a plea bargain and insisted on being tried. Mr. Summerlin was convicted, and sentenced to death. He unsuccessfully appealed his case four times in the Arizona Courts, and finally filed a petition for writ of habeas corpus in the federal district court, alleging that the judge who sentenced him to death in 1982 did so while under the influence of marijuana. The petition was denied, and again Mr. Summerlin appealed.

Finally, Mr. Summerlin’s luck with the appellate process has changed. The Ninth Circuit decided that Mr. Summerlin should have a chance to find out if former Arizona Superior Court Judge Philip W. Marquardt was stoned when he was deciding that Mr. Summerlin should be executed. The Court noted that Judge Marquardt had been twice convicted of possession of marijuana and, describing himself as a marijuana addict, was disbarred in 1991. There were also indications that Judge Marquardt had been a “user” since 1975. The Court concluded that Judge Marquardt may have been “using” on the fateful weekend in 1982 when 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.

And maybe that’s true. And bravo that Mr. Summerlin has won a chance to escape death row. But what’s curious about the Ninth Circuit’s opinion, written by Judge Trott, is that it seems more informed by anger and self-righteousness than reason, at one point comparing a marijuana-smoking judge to arsenic in the water supply. Marijuana, Judge Trott wrote, “is a substance that with chronic abuse renders smart people average and average people stupid.” “One’s legal conscience simply recoils at the shocking thought that the due process clause of the Fourteenth Amendment is satisfied by a judge presiding over a criminal trial and making life or death sentencing decisions while under the influence of, or materially impaired by, the use of an illegal mind-altering substance.”

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 perhaps simply because the Judge hadn’t 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.

While the Summerlin opinion seems to be about the impaired thinking; it is more about hypocrisy. 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. Outrage may be a reasonable reaction when one contemplates a judge committing the same crime for which, if convicted, 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 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.

Judge Trott wrote 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.” California Supreme Court Justice Joyce Kennard was once arrested for DUI—was she thinking about one of her legal cases after she began drinking that night? If she did, and simultaneously drove with a blood alcohol concentration over .08, then must we deem all her reasoning on that case to necessarily have been unsound? Unless he too is a hypocrite, Judge Trott’s answer would necessarily be “Yes.”

The opinion in Summerlin v. Stewart, 2001 U.S. App. LEXIS 21733 (9^th Cir., October 12, 2001) can be found online in the opinion’s section of the Ninth Circuit’s Web site: http://www.ca9.uscourts.gov