The Case of the Jacked-up Judge.

Great Debates
1

On the front page of the New York Times today is an interesting story. (sorry, no link - NYT is a registration-required website. I’m not registered and the link wouldn’t work for non-registered people anyway)

It seems that one Philip Marquardt, a trial judge in Arizona, was convicted twice for marijuana possession while on the bench, as was forced to resign in 1991 (and lost his license to practice law, as well).

Now, two of the people he sentenced to death - in Arizona, judges, not juries, hand down death sentences* - have filed appeals, arguing that they are entitled to an investigation of whether Judge Marquardt’s marijuana use deprived them of a fair trial.

A federal appellate court has ordered a hearing for one of the prisoners (Summerlin) to consider evidence about these assertions.

Both the majority and the dissent in that decision make very interesting points.

From the majority:

The dissent however, notes:

and

It’s an interesting issue, and I’m not sure where I stand on it. On the one hand, the case partially rests on the obviously false premise that, if you use drugs (or alcohol), you are incapable of reasoned thought. Further, it can open the door really, really wide. As one law professor observed, “If this is a legitimate inquiry, what about a divorce or loss of a child?” Both can certainly affect mood, ability to concentrate, etc.

On the other hand, can justice be served by a judge who is (a) high while on the bench (one of his prisoners and his attorney alleged that Judge Marquardt fell asleep during the sentencing hearing) or (b) high while deliberating on the case (in one of the cases, Judge Marquardt announced he would deliberate “over the weekend”)?

I’m torn. Any thoughts?

Sua

2

  1. The U.S. Supreme Court is presently considering whether or not Arizona’s system of having judges rather than juries deliberate on whether to hand down a death sentence passes constitutional muster.

  2. Because of that pending case (which would render these cases moot), the 9th Circuit has withdrawn their decision. That also means you can’t get the opinion off of Findlaw.

Sua

3

The burden here should be the same as the burden faced by any other appellant trying to show unfitness on the part of the judge. I think a per se rule that reverses a verdict or sentence merely because the judge used marijuana during the general time frame in which the proceeding took place is a terrible idea.

Now, if the appellant can show the judge was actually intoxicated during the trial or sentencing, that’s a different story, and with that showing for sentencing, I’d remand to a different judge for resentencing. If the intoxication occurred during trial, I’d even suggest that the appellate court review the judges rulings under a more relaxed standard that abuse of discretion, or even possibly accept a per se reversal.

  • Rick
4

This is the crux of it for me. Like with drinking, the relevant inquiry IMO is not was the judge drinking occasionally during that time frame, but was he drinking/drunk at that time.

IOW, I see two arguments:

(1) Judge is a low-down dirty hypocrite, sitting in judgment on others while breaking the law himself. This might be an argument to remove him from office , but I don’t see it as an argument for overturning specific sentences if they (the sentences) are legally supportable.

(2) Judge was under the influence at the time of sentencing. Clearly grounds to overturn the sentence, but I think the defendants have to bring forward some proof of that – not a ton of proof, in a death penalty case (and if it were up to me), but more than a mere allegation.

5

I agree with Bricker that the burden should be squarely on the shoulders of the Defendant, and that a blanket rule overturning cases and sentences because the possibility of a judicial intoxication at one time or another would be ridiculous and won’t happen.

Awhile back in Cook County, IL, they had a little judicial bribery sting called Operation Greylord. The feds caught a few judges taking bribes. This, of course, led to hundreds of prisoners challenging their verdicts and sentences, based on the idea that the judge would give stiffer sentences to them to cover up his taking of bribes from defense attorney’s. How to handle those cases is still being debated in the appellate courts, but the Supreme Court has said that a mere allegation of potential bias wasn’t enough. There is a presumption that public officials properly discharge their duties. But if a defendant can rebut that presumption (and some did), then they may well get a conviction or sentence overturned.
Now marijuana possession is not even in the same ballpark as bribery, but I think the way the judiciary will consider it will be the same.
I don’t see how the defense could ever show actual intoxication by the judge. From the OP, they can hint around it, but I cannot imagine, short of a statement from the judge, that they could ever come up with proof sufficient to overrule the sentencing.

Basically, it sounds like yet another last ditch effort to gain a win on appeal based on nothing of substance.

6

The book series News Of The Weird contains cites from various papers on, you guessed it, weird news items. I’m doubtful of some items, but others have been verified.

The Coyote Ugly Judge is one. During a rape trial he said that the victim should not be pressing charges. His reason? He described her as “coyote ugly” and that she should be thankful any man wanted to have sex with her. He remained on the bench. One day I came across an article on the same judge in the Phialadelphia Inquirer. The judge continues to behave in a bizzare manner. Yet, he remains on the bench.

Combined with the OP, this makes me wonder if there is a reluctance to penalize judges. If there is, why? Is there a judge shortage or something?

7

A cynic would say that it’s because the people who are charged with penalizing judges are other judges. “There but for the grace of God” and all that.

Sad part is, the cynics are probably right.

Sua

8

Sua, as anyone who has been in the business knows, there are a few incompetents on the bench, and more than a few who lack what you might want in terms of Judicial Temperament (may the record show that no serving judge in the First Judicial District of Iowa or of the Court of Appeals or of the Iowa Supreme Court can be characterized as incompetent or lacking in appropriate temperament). I am pretty ambivalent about your Arizona judge unless the transcript shows something like this:

THE COURT: It is now my duty to sentence you to be bound over to the custody of the Department of Corrections until such time as you shall be done to death by lethal injection, and to pay the costs of this action. Oooh! Butterflies. Does anybody have anything to eat?

The rule with judges is the same as for kings. If you are going to shoot at one you had better kill him with the first shot.

9

(cough, cough)

10

Hmm…I’m thinking that if sentences handed down by judges who smoked a little bit of pot, or took the occasional bribe, were voided, then it’d jack court costs way up.

And a sheriff who promised to keep the taxpayer’s costs down by aggressively prosecuting judges who engaged in voidworthy activities would stand a good chance of election.

As long as judges keep engaging in corrupting activities and their judgements stand, I can see little incentive for the Powers that Be to put a stop to it. If, on the other hand, a judge’s demonstrable corruption causes a huge snarl in the system, then the PTB will have a strong incentive to stop corrupt judges early.

And Sua, I don’t see how the potsmoking judge defense would open such a can of worms. It’s illegal to drive while stoned, but it’s not illegal to drive while undergoing a divorce or after your kid has died. Couldn’t judging be somewhat analogous?

I, obviously, ANAL. Just some thoughts.

Daniel

11

Since Sua and Bricker have answered a number of my legal questions, and on occasion demonstrated I was totally incorrect, I hesitate to disagree with them on a legal issue, but…

If I read the OP correctly, these defendants are not asking for a blanket rule that drug-abusing judges automatically invalidate their sentences. They are asking for an investtigation of whether this idiot was unable to render effective judgement. I think they are entitled to such an investigation. After all, reconsidering the sentence once it is applied is worthless.

12

IANAL, but I do spend my workdays in court surrounded by them. Reference today’s conversation on the subject of a recent spate of deaths of newly seated judges, in which my (politically connected, lawyer) coworker wondered aloud why anyone would pick a judge with obviously life-threatening health problems or of extreme old age. My other co-worker, (also a politically connected lawyer) replied, “Well, they’d been waiting a long time, and it was their turn.” In other words, it is openly acknowledged (in MY courthouse, in MY county, at least) that judges end up on the bench based on political clout and affiliation. Fitness (physical or otherwise) has nothing to do with it.

When it’s your “turn,” you become a judge. Period.

It should be no surprise to anyone that penalizing judges whose judgeships are based on patronage is not an easy thing to do, regardless of their level of (in)competence.

13

To heck with pot, what about alcohol?

Show me a pothead judge, and I’ll show you a dozen drunks, (and two dozen drunk defense attorneys). Competent judge drunks and defense attorneys at that, so long as they’re not actually drunk while on the bench or in trial.

You can argue that alcohol is legal and pot isn’t, but that doesn’t necessarily make a potsmoking judge incompetent, just somewhat hypocritical. Had he gone off to deliberate over the weekend, seriously deliberated friday night and saturday till dusk, then pulled an unholy bender saturday night and called his old girlfriends slobbering, would that necessarily mean the trial had been tainted so long as he shows up ready to go to work on monday? He likely got much, much more intoxicated from alcohol than he would have from from marajuana.

If it comes out publically that a judge has started going to AA, does that invalidate all his decisions up to that point?

14

Paperbackwriter’s post answers most of this question:

And that’s where the “can of worms” may be opened. Should a defendant be allowed to dig through a judge’s personal life to determine if some event or substance may be distracting him, depressing him, or intoxicating him to the point that the judge isn’t able to properly weigh the issues and apply sound discretion?

Sua

15

Short of a showing that the judge was actually under the influence during the proceedings, how, precisely, do you imagine they might demonstrate that the judge was “unable to render effective judgement?”

The problem is that there’s no way to produce anything other than speculation. If he was sober on the bench and stoned on the weekend - except for the weekend he said he planned to consider the case - you can’t show any particular effect on his deliberative process. Any attempt to do so would be pure conjecture – nothing more, in other words, than we have now.

The same process could be applied to an alcoholic judge. If he’s sober on the bench and gets pie-eyed drunk every weekend, how would you demonstrate that a particular sentence was flawed?

  • Rick
16

Bricker, I agree with you that, in most cases, there would be “no way to produce anything other than speculation.” However, I went to the article that Sua mentioned, and there’s a really good

I think that about sums up this case. The real problem is that allowing a review of these sentences on these grounds creates an “Pandora’s box” precedent. But heck, even Marquardt agrees that there’s grounds for an inquiry.
As to what form that might take, I can’t say. Are there witnesses that can testify to Marquardt smoking during the week? There is evidence that drugs were delivered to the courthouse. Did anyone see the judge in an impaired state? There are ways to ask the questions, but I realize there may not be clear answers.