High Court. (The Private Lives of Judges).

CAN A JUDGE unwind after work by smoking pot?

Phoenix judge Philip Marquardt did. Convicted twice on marijuana charges, he lost his law license in 1991. A decade later, two convicts whom he sentenced to death in the 1980s are arguing that his leisure activities prevented them from receiving fair trials. They want their sentences reviewed.

If the two men lose their appeals, it would mark a win for those who believe that one can balance marijuana use against other pursuits and continue to function normally, just as people assume to be the case with alcohol. That argument was rejected by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, which ruled that William Summerlin, one of the two prisoners, deserved a hearing to offer evidence that he deserves resentencing. Chronic marijuana use, the majority wrote, "renders smart people average and average people stupid."

If the two murderers ultimately win the right to be sentenced by a new judge, the decision might suggest that every element of a judge's private life could and should be scrutinized to make sure a defendant is getting a fair trial. "If this is a legitimate inquiry," Arizona Assistant Attorney General John Pressley Todd asked The New York Times, "what about a divorce or loss of a child?"

Judge Alex Kozinski, the dissenting voice on Summerlin's appeals panel, argued that there was no proof Marquardt's drug use had affected his judgment, and that a rehearing would invite unwarranted intrusion into judges' personal lives. "Judges rightly expect to have medical histories, family tragedies, even occasional overindulgences in intoxicating substances, remain private," Kozinski wrote.

For now, the appeals court decisions regarding both men's cases are on hold while the state awaits a U.S. Supreme Court ruling on a related matter: whether Arizona's practice of having judges rather than juries hand down the death penalty is constitutional.