MisJudged

U.S. District Court Judge Carl Muecke ruled on the letter of the law, but his liberal views and tough courtroom style made him the judge that conservatives love to hate

If he was already considered dangerously liberal for Arizona, his reputation exploded in 1978 when he threw out the state's death-penalty statute.

The U.S. Supreme Court had knocked down all state death-penalty codes in 1972 as too arbitrary, with no standards as to who was put to death and in what circumstances. The states were to rewrite the statutes to consider aggravating and mitigating factors.

Muecke had combined two writs of habeas corpus, appeals to a higher court for a stay of execution. The facts of the two murder cases, he says, are immaterial, and he doesn't remember them anyway. And although the convicts' attorneys petitioned for resentencing on many grounds, Muecke turned them all down but one.

The Arizona state law had been rewritten to consider four mitigating circumstances that might sway a judge against a death sentence, essentially taking into account the accused's capacity to appreciate that his conduct was wrong, unusual duress, whether the accused played a major or minor part in the crime, or whether the accused realized the offense would lead to murder.

Muecke thought that wasn't enough. He wrote that age and prior record, cooperation with authorities, mental capacity, and intoxication, among other things, should be considered as well.

"I thought it was absurd," he says now, "because in every other crime right down to spitting on the sidewalk, you could consider all factors. Now here's the most serious crime of all, where you've got the death penalty, and you couldn't consider all the mitigating factors? I saw no rational reason for it, and I thought it was unconstitutional."

For the next six months, he was pilloried in the press.
"They had full pages of letters denouncing me, they had cartoons."
He received death threats. He had to be escorted home and guarded by federal marshals.

That July, the U.S. Supreme Court struck down a similar statute from Ohio.
In 1980, the Arizona Supreme Court affirmed a rewritten death-penalty statute; Muecke held that the new language was constitutional. No one was executed in the state until 1992. But, personally, he opposes the death penalty.

"I don't think it really prevents people from committing murder," he says. "I don't know why it's any better that the state kills somebody. And there's always a chance you'll kill somebody innocent."

Judge Muecke stepped down as chief judge of the district court in 1984 to take "senior status," with the thought that he'd have a reduced case load.

He was mistaken.
Instead of easing into retirement after a long and distinguished career, he was saddled with hundreds of cases, including a cluster of political battles that would dominate the headlines for much of the decade, and drag his name and reputation to places they should never have gone.

The prison rights and logging cases that have persisted beyond Muecke's retirement this winter were cases in which government agencies--the Arizona Department of Corrections and the U.S. Forest Service in particular--chose to disobey laws they did not like, then stonewalled through court to try the case instead in the court of public opinion.

"He looked at this as legal issues, not political issues," says Mary Wade. "I think he was somewhat flabbergasted by how political it became. In his mind, if the law said X-Y-Z, then he was applying the applicable law. And if you don't like the law, then go to Congress and get it changed."

Another former clerk claims the judge would write his decisions, then say, "I think it's the right thing to do. If I'm wrong, I'll get reversed."

The struggles with Sam Lewis, director of the Arizona Department of Corrections, began in the late 1980s and persisted past Lewis' retirement in 1996, going all the way to the U.S. Supreme Court.

There were three major cases. Gluth v. Arizona Department of Corrections and Casey v. Lewis pertained to prisoners' access to law libraries and legal services. Prisoners had complained that they were unfairly limited in their contact with their attorneys and that their legal documents were being read by prison staff when they asked to have them photocopied.

Muecke also felt that simply pointing the prisoners at law books would not protect the rights of those who were illiterate or who did not speak English. Some prisons had no law library at all. He appointed a special master, an outside consultant, more or less, to study the problems and make recommendations to the court. He did not feel he had the time personally to supervise the issue, nor did he think, from past experience, that the Department of Corrections would do so.

"Unless I specifically said what had to be done, they didn't do anything," Muecke says now.

Then when the special master made an intricately detailed list of suggestions that specified exactly how many hours of training films for learning legal procedure prisoners could watch and what qualifications the legal aides should have, it sailed through court with minor editing by the corrections department.

The third case, Hook v. State of Arizona, dated to 1973. It ended with a detailed consent decree that had been signed by the department, and that laid out the number and size of Christmas packages that prisoners could receive and affirmed that they could subscribe to magazines, like Playboy, that contained nudity.

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