When it comes to the integrity of the judiciary, we usually consider them beyond reproach. We allow judges to determine the laws as to how we live our lives and also how we die. But sometimes their stewardship can be blurred or hazed over. Sometimes our trust and good intentions can literally go up in smoke! We navigate through a societal maze that at times is mired in hypocrisy. Case in point: In 1988, this writer, Richard Michael Rossi, was sentenced to death for the third time in his case. Since the original judge had retired, a new judge needed to be assigned to the case. The system is so averse to acknowledge its own mistakes that throughout the writer's entire State court appeals process and after three sentences of death, the issue of the sentencing judge Philip Marquardt's two arrests and convictions for drug possession and his subsequent disbarment was never acknowledged as an issue.
It would seem illogical to the average person that 13 years after being sentenced to death by a judge who later admitted he was addicted to marijuana for 16 years while on the bench, that no relief would have been granted even though this issue was raised. It illustrates just how arbitrary and out of touch the court can be when it comes to the application of the death penalty. Although there has recently been a rash of attention given to my case in the press and on TV, I must resign myself to the fact that it is these judges themselves who are the ones that can grant relief and not the media.
While a person on death row will naturally use all of the tools at his or her disposal, including the press, to avoid execution, still many people see casting aspersions on a judge as an unfair rebuke of the judiciary. But with such limited resources I must welcome any "15 minutes of fame" when it appears. The process of assigning this drug-addicted judge was itself not without controversy. A Judge Foreman was initially assigned, but the State felt that Foreman was too liberal and would be lenient to Rossi, so they exercised a motion for Peremptory Challenge of the Judge (rule 10.2). This allows you to change a judge once throughout the entire case without a reason. The problem was that the State had used their 10.2 motion before the original trial. When we protested, the record was searched and the previous 10.2 did not appear, so the court allowed the erroneous second motion. Judge Foreman was removed and Judge Marquardt was assigned.
It was not until a subsequent appeal when a more thorough search was made that it was noticed that the original 10.2 motion somehow was not officially noted on the record. A minute entry was granted and this was placed on the record. However, due to the preclusion rule, I could not raise this abuse of the rule because it had to have been raised on his direct appeal even though the mistake was not discovered until years later and that it was the fault of the court itself! A "Catch 22" if there ever was one. That is how Judge Marquardt was assigned to the case.
Sometimes it seems in modern society we go too far, we question more than we are entitled to. The question is where do we draw the line when it comes to questioning the integrity of those who are our judges. Prosecutors and many of the judges say we should not be allowed to go on "fishing expeditions" that bring into question the private lives of judges. We entrust them to do their best and we should leave them alone. And for the most part, we do this. But when such obvious irregularities arise as in this case, the court itself should jump at the chance to clean up its own house. The prosecutor in this case, Mr. Ellman, who has read the transcript of the hearing states that "The judge appears to be very coherent and tracking the evidence accurately."
Regarding Judge Marquardt's other death sentence, the dissenting federal appeals court judge Kozinski warns against opening a "can of worms" or relegating the judge to a "lifetime of backroom depositions." That we should not delve into the private lives of our judges. That it is okay for a judge to be intoxicated when he is not on the bench. The problem with this is that mind-altering substances once consumed cannot just be left at home when you go to work.
Kozinski further states "Does having a fleeting thought on the subject while intoxicated then vitiate all of a judge's sober deliberations? Or is the test whether the judge made up his mind under the influence? How would one know?" Well, that is the point, isn't it? How do we know? We can say that if a judge has an alcohol problem, it is at least a legal substance and we know many of the downsides to this. However the jury is still out on the effects of mind altering substances. That is why society has declared them illegal. If one looks at the canons of judicial ethics it clearly states that a judge must refrain from the mere appearance of impropriety. We must construe that a sitting judge who was twice convicted of drug possession and who was disbarred and admitted to the state court that he was addicted to drugs for 16 of the previous years he presided over cases, to be someone whose character and performance is a disgrace and in this case an exploration into his private life is merited. Could there be a better case for such inquiry? How can we objectively deny review or reversal to a death row prisoner when literally his life hangs in the balance due to the pipe dreams of a dope smoking judge who even admits he does not remember my case? In Judge Marquardt's 20-year career he gave the death sentence just three times. Mine was the last time, and just a month or so before he was busted coming across the Mexican border with marijuana on his person. He can't remember. And I will tell you it is because a well known side effect of long-term smoking of dope is that it destroys brain cells and that impedes the cognitive functioning of the brain. One does not have to be a doper to know this.
Perhaps his memory loss is the reason why he made such short shift of the resentencing hearing back in 1988. A matter of one's life or death was reduced to a mere three hour hearing. With hindsight, we realize a major mistake of my defense was to stipulate that Judge Marquardt would carefully read and review all of the transcripts of the previous testimony given by all of the mental health experts who testified to the fact that I could be rehabilitated with a life sentence instead of death. What was especially heinous was that Judge Marquardt slept through a large portion of the hearing. A sworn affidavit attests to this. Nodding off is another side effect of smoking dope.
A person who is addicted to drugs is in denial, and when someone else appears before him and pleads for leniency, he can not agree that drugs are a problem. That is the psychosis of drug dependency and denial. No matter how much I admitted my addiction, he could not admit to his own. Not until the worm had turned and he was standing before the State Supreme Court after being convicted for drug possession did he admit his addiction and ask for leniency. I believe I am entitled to the same consideration he received.
An important thing about drug abuse is that it has the ability to bring intelligent people as well as not so intelligent people down to the same low level of incompetency. Illicit drugs are an equal opportunity scourge. To demand that our judges be held accountable for their poor discretion, especially when it comes to life and death decisions is imperative. We can not just make the blanket accusations that we should never be allowed to intrude into the private lives of the judges. Imperfect people should not be permitted to condemn others. We need to blow away the smoke that clouds this issue and allow the sober truth to shine through.