JUDICIAL PRIVACY VERSUS THE RIGHT TO A FAIR TRIAL:
The Case Of The Marijuana-smoking Judge And The Capital Defendant

By EDWARD LAZARUS
Tuesday, Oct. 16, 2001

On October 12, in the case of Summerlin v. Stewart, the U.S. Court of Appeals for the Ninth Circuit delayed the imposition of the death penalty for a most unusual reason. It turns out that the trial judge who presided over the defendant's capital case and imposed the death penalty was addicted to marijuana at the time of trial.

In the Ninth Circuit's view, the prospect of a doped-up judge called into question the mental competence of the tribunal — and the validity of the trial conducted, and sentence imposed. Thus, the court ordered additional proceedings to determine whether the judge's addiction may have actually affected the defendant's trial and sentencing.

Judge Alex Kozinski dissented vociferously from the ruling. Judge Kozinski did not dispute the fact of the judge's drug addiction. Nor did he dispute that the judge was twice convicted of marijuana offenses (and eventually disbarred), or that the judge used his official position, as well as a blanket of lies, to cover up his marijuana use.

Instead, Kozinski complained that the Court's ruling would allow defendants to go "rummaging" through the "private lives" of sitting judges in search of personal improprieties that might become a lever for overturning convictions. As Kozinski put it, "judges rightly expect to have medical histories, family tragedies, even occasional overindulgences in intoxicating substances, remain private."

The Ninth Circuit's debate over the privacy of judges raises interesting questions about how to draw a particular public/private line. It asks us to distinguish between, on the one hand, the truly private conduct of public officials and, on the other, private conduct that is rightfully the subject of public inquiry because of its potential effect on the carrying out of official duties.

Special Privacy Rights For Judges?

Judge Kozinski, it would seem, is arguing that the privacy rights of judges are somehow entitled to special solicitude. It is almost unimaginable, after all, that we would consider the drug addiction of an elected official off limits to public inquiry and investigation.

Indeed, we countenance judicially-sanctioned investigation into conduct that is much more truly private than drug addiction so long as the target is an elected official instead of a judge. Although Kozinski would not have allowed a defendant facing death to question the competence of a judge known to be a habitual user of a judgment-warping narcotic, his philosophical allies thought little of impeaching a President over an extramarital affair.

That said, judges may be different from other public officials. For one thing, there is a long tradition of protecting judges from scrutiny even on matters clearly affecting their capacity to perform in office.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books — most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.