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MisJudged

The message from the president was not memorable, an obligatory platitude on the occasion of the judge's retirement, a well-deserved thanks for 36 years of service to his country, but it brought tears to the old man's eyes.

"I have a tendency to cry on certain occasions," the judge said. "I'm not proud of it, but as you get older, it gets worse."

This judge, however, Carl A. Muecke, had a reputation for sternness on the bench that in at least one instance made an attorney cry.

Before the judge got up to make his farewell remarks, one of the speakers had pointed out that there had been no retirements of federal judges in recent years. They'd been carried out in coffins.

Muecke remarked that at least by retiring, "You get to hear what will be said at your funeral."

Indeed, there was a funereal look to the courtroom on that February morning, the judges in robes, the lawyers in suits, the Catholic bishop, the former mayor, the former congressman, the judge's wife and three grown children and grandchildren sitting in the front row.

It was a death of sorts, the death of a liberal voice on the federal bench in Arizona.

Carl Muecke had been controversial since he arrived in Phoenix more than 50 years ago. He'd been appointed U.S. attorney by President John Kennedy, and worked closely with Attorney General Robert Kennedy. His nomination to the bench was in the works when JFK was assassinated.

He'd tackled nearly every controversial issue that shaped the past four decades: desegregation, the death penalty, the draft. Ernesto Miranda, for whom the Miranda decision was named; Ned Warren, the swindler; Cesar Chavez, the legendary farm-labor leader, all passed through his courtroom.

"Carl was always on the liberal side, but he was very steady," says his longtime friend Stewart Udall. "I'd characterize him as a person of steady convictions rather than a fiery individual."

In an age when the word "liberal" has taken on a pejorative connotation, he wore it like a badge. He once called a New Times reporter who had written that there were no liberal judges in Arizona, and angrily exclaimed, "I am a liberal."

"Judge Muecke is a lasting symbol of Kennedy justice," says Phoenix attorney David Bodney. "To judicial activists, he is a profile in courage and an inspiration. To conservative jurists, he is precisely the opposite."

Truly, in the 1990s, he became a symbol of the ideological split between human rights and states' rights. In the tradition of his generation of jurists, he remained quiet on the issues, but ruled according to the letter of the law as he read it. To this day, he refuses to speak ill of the politicians who held him up derisively as that symbol.

Still, his name was everywhere in the news, pilloried by Governor Fife Symington, by loggers and legislators and newspapermen, accusing him of overstepping the bounds of his office and imposing his outdated liberal will on the state government.

Though he was supposed to be semiretired, he took on a series of controversial prison cases and imposed the injunction that has shut down logging in the Southwest for the past two years.

He fought fiercely with the Arizona Department of Corrections over its policies and with the U.S. Forest Service over the Mexican spotted owl.

Muecke felt he was defending the law against government agencies that were deliberately flouting it. His unwillingness to back down on his opinions is the reason that judges are appointed for life, but his stubbornness was mistaken for arrogance.

And perhaps on occasion, he was arrogant. But so was his opposition, in spades.

Using characteristic overstatement, opportunism and the kind of informed research on the issues that you can gather in a barbershop, Symington held him up as the epitome of an overreaching federal government meddling with the rights and affairs of the state.

Symington ignored the facts, perhaps, in favor of what he believed to be higher truths.

"You tell me what is the difference between rhetoric and policy these days," says former Symington aide Chuck Coughlin. "Judge Muecke was clearly out of step with public opinion. And you ask yourself, why is this guy still on the federal bench after all these years and still taking the kinds of cases that are affecting thousands of lives? . . . He's been such a consistent liberal voice on the court, and he's taken it upon himself to make some rather unpopular rulings as it relates to Arizona's economy--number one, on the environment; and number two, on inmate rights. If people really cared about inmate rights that much, Joe Arpaio's popularity wouldn't be at 80 percent."  

Symington called for Muecke's impeachment, and rattled vaguely about civil disobedience and state rebellion.

Muecke was hanged in effigy by loggers and ridiculed in the press, notably in the Arizona Republic and Phoenix Gazette.

"We were the perfect target," says Muecke's former law clerk Mary Wade, "because we couldn't answer."

Furthermore, through much of the conflict, he was laid up in bed recovering from three major surgeries in as many years, though he would not let that be known to his enemies.

Finally, on February 21, he yielded to the wishes of his wife, Vickie, and retired, one day past his 79th birthday.

Stewart Udall had hoped to speak at the retirement ceremony, but he never got the chance.

"Carl was always a target in Arizona because he was the most liberal judge," Udall says. "But I had the feeling in that room that day, because of what was said; I know quite a few of the federal judges. Although some of them may have looked askance at his liberal views, I think they all respected his integrity, because he wrote his opinions and made his judgments on the basis of his view of the law. He was not distorting the law, he was upholding the law."

Toward the end of the ceremony, Judge Robert Broomfield took the microphone and calmly asked everyone to evacuate the courtroom because there was a fire on the floor above.

It turned out to be only smoking wires in a circuit box, but the thought on everyone's mind was that the perennial threats against the judge had come home to roost.

Carl Muecke moves slowly on his daily walk through the forest near his Flagstaff summer home. He leans on a walking stick because he's had both hips replaced and has had major surgery on his back.

"That was from running up and down these mountains here, thinking I was a young Marine and enjoying it immensely," he says.

His clerks have said he was astounded when his robust body began failing a few years back, especially under the strain of his last years in office.

He stands just over six feet tall. He has white hair and a handsome, somewhat ashen face, and he holds his lips tightly over his teeth as if in expression of the tension between judicial demeanor--which dictates silence and discretion--and the urge to spill his thoughts.

And he loves to talk, the memories flowing out of him in no particular order, unstuck in time, each one triggering a hundred more before the first is finished.

There is a story by the Argentine writer Jorge Luis Borges called "Funes the Memorious." It's about a man whose memory is so vivid and complete that he has to take to bed to limit his experiences so that he will not be burdened with more to remember.

Muecke evokes that character.
He recalls slights and errors in articles written about him two decades ago. He spins tales of goodwill and dirty deeds from three quarters of a century, sings German ditties from his childhood, comments wisely on current events.

He reads voraciously, and he boasts a library of more than 17,000 books, so many that he has had to box them and store them in a shed behind his Paradise Valley home.

He is grandfatherly and courteous. He dotes on his friends, and on his former law clerks, most of whom he worked long and hard, keeping them from lunch, sending them back to the stacks for precedents, calling them a dozen times a day.

The kindly old man, however, stands in stark contrast to his judicial persona.

When he was on the bench, he sat up high, and his voice was the thundering voice of Zeus. Even those attorneys who won cases in his court were afraid of him.

One attorney at his retirement ceremony recalls the judge shouting at him, "What are you doing?"

"I don't know what I'm doing," the attorney stammered.
"Well, do it faster," the judge snapped back.
Ranchers in Catron County, New Mexico, would refer to him as that judge in Phoenix that the environmentalists had in their back pocket. The enviros, after all, had convinced him to shut down logging because of the U.S. Forest Service's refusal to evaluate spotted-owl populations. In fact, the attorneys who engineered that injunction were terrified of pushing his patience too far.

Once when New Times happened upon an unpublicized court hearing in Flagstaff, Mark Hughes, one of the environmental lawyers, worried that the reporter's presence would throw the judge into a rage and bring a contempt citation down on his head. Later in the case, when a Department of Justice attorney assaulted Hughes during a negotiation session outside the courtroom, Hughes refused to press charges, again for fear of calling undue attention and invoking the judge's wrath.  

Muecke now dismisses those fears as exaggerated. But Hughes is by no means the only lawyer to have tread lightly in his courtroom.

The attorney comments in Muecke's profile in the Almanac of the Federal Judiciary are bipolar, alternately describing him as brilliant and stupid, good and evil.

"He is extremely able in the areas of civil rights and prisoner's rights," reads one comment, although it's hard to say whether that is a sincere statement or a left-handed compliment.

"He is very discourteous to attorneys and participants in the courtroom." "He is pompous and indifferent to any point of view other than his own," read others.

And again: "He has a lot of judicial courage."
"Constitutional law has changed so radically in the 30-plus years of his judicial tenure," says David Bodney. "Judge Muecke's brand of political activism was once widely heralded as law as a positive vehicle for social change."

Muecke asserts that today, "Justice generally goes to the people who are rich and powerful," and he admits he is not the first person to have said so.

"We're not just talking about criminals now, we're talking about the average citizen. To bring a lawsuit nowadays and pay a lawyer, you go bankrupt. It isn't really justice if that's the case."

What good is a man without strong opinions? Muecke has plenty of them.
He grumbles about the current U.S. Supreme Court, packed and stacked by presidents Reagan and Bush to be decidedly more conservative than the court that presided over the first years of his judicial career. And since Arizona is such a breeding ground for conservative jurists, it's no wonder that two of the current justices--Chief Justice William Rehnquist and Justice Sandra Day O'Connor--are Arizonans. They are Muecke's contemporaries, even if they are also his polar opposites.

"Arizona is a very strange place," he says. "I've lived here 50 years."
He sputters over how the current Congress refuses to approve Bill Clinton's appointments to the federal bench, stalling until the day a good Republican is in office so that they can stack the lower courts, too. More than 100 vacancies remain in the federal courts, contributing to the legal logjams that the same crime-fighting Congress complains about.

"At the same time, they want to take away tenure from federal judges and all sorts of wonderful things that were not proposed by the great founding fathers, whose product is suddenly becoming evil," Muecke says.

From Congress to talk radio, would-be wise men complain about the federal government intruding on the lives of U.S. citizens.

"In what way do they interfere with your life?" Muecke asks. "It's a great public relations thing they have achieved."

He worries about the environment.
"You'd have to be kind of thick not to think about your children and grandchildren and the future of the country," he says.

Above all, he worries about human rights and civil rights.
"No one wants to think very deeply about anything. They just want trouble to go away.

"As a result, we're turning out into our society all types of people, many of whom drop out of schools and wind up eventually in the courts. Anyway, I'll get off my soapbox."

But he can't get off it.
He shakes his head over a daily newspaper series whose headlines scream at finding ex-convicts working in nursing homes.

"You know, a lot of people who are inmates are not serial killers or sex criminals," he says. "They're just stupid kids and men who never got an education or a trade."

If he is particularly outspoken about prisoners' rights, it's because he has seen the worst a prison can be. At the end of World War II, Muecke was one of the first Americans to see Hitler's concentration camps at Dachau and Buchenwald. He'd witnessed the most heinous crime of the 20th century and realized that it had been perpetrated by his own people.

"He's a very complicated person," says his former clerk Mary Wade. "Most of the ways he views the world are based on a couple of facts. He is the son of German immigrants and grew up in New York City. And also he was a Marine in World War II. He's extremely patriotic. He really believes in the United States. He very much believes in the law. He believes that judges were put in that position to make difficult decisions, and that's why they were put there for life."

Carl Muecke was born in Brooklyn in 1918. His father was an engraver and etcher from Germany. His mother had come from Bavaria to be a girl Friday for a wealthy Rhode Island family. The Mueckes christened their son Charles, a good American name, but they called him Carly, a diminutive form of the German equivalent, Carl. When he outgrew the kid's name, he called himself Carl. And rather than use his Christian name Charles, he took to signing C.A. Muecke.  

He grew up speaking German as well as English, listening to the tales told by relatives from the old country who worriedly whispered about the Depression and the rise of Hitler.

Muecke finished high school a year early and then worked his way through William and Mary College in Williamsburg, Virginia. He finished college in three years because he didn't feel he could afford to pay for a fourth.

Then, though he was offered a scholarship to do graduate work in economics at the University of Virginia, he took a job instead with the Works Project Administration. His WPA assignment was to administer white-collar projects, which mostly meant liquidating them, since the war was already turning around the U.S. economy.

In 1942, Muecke was accepted into the Marines, went through officer training school, and because he spoke German, he was assigned to the Office of Strategic Services in Europe. Some of his OSS work there was documented in the 1979 book Piercing the Reich, by Joseph E. Persico.

Muecke was sent behind enemy lines, but spent much of his time turning German prisoners of war into OSS agents. Then, when the war ended, he went off in search of escaped Nazi officers.

He reached the Dachau concentration camp on the day it was liberated.
"I saw the corpses and the grisly appearance of the people. I saw the ovens there," he says.

"I was obviously overwhelmed by the tragedy of it and the inhumanity of it. In fact, it upset me so much, seeing both places [Dachau and Buchenwald] and other things I knew about and heard about, that I didn't go visit my relatives [in Germany] after that for 40 years."

In 1946, Muecke moved his wife and son to Phoenix because he heard it was a good place to raise a family--he had two more children here--and because he'd been offered three jobs, all of which he took in succession. He was full of New Deal ethics and enthusiasm.

"Of course, if you endorse the New Deal nowadays, they call you a radical, too," he jokes.

By Arizona standards, he was more than a radical. He was an Easterner and a union man in an antilabor state.

At first he went to work as a lobbyist for a $9 million bond issue to build an airport, sewers and water lines. And when the election was over, because he'd edited the student newspaper at William and Mary, he was offered a job as a reporter for the Arizona Times, a muckraking liberal newspaper founded by Franklin Roosevelt's daughter, Anna Roosevelt Boettinger. However, Phoenix wasn't ready for reform, and when the paper went under, Muecke went to work as an organizer for the restaurant and bartenders' union. Then the union went bust on the state's right-to-work law, and so Muecke, at age 32, enrolled in the University of Arizona Law School.

"He was full of piss and vinegar," says Jay Dushoff, one of Muecke's early law partners, and he threw himself into progressive issues, especially civil rights.

Phoenix had literacy laws to keep blacks from voting, right up until the 1960s; Chief Supreme Court Justice William Rehnquist had been a Republican poll watcher in Phoenix, and is alleged by some accounts to have harassed and intimidated minority voters. In the late '40s when Muecke arrived, a black could be arrested for trying to order a meal at the lunch counter of the drugstore on the corner of Central Avenue and Washington Street.

Muecke's first experience with segregation here occurred shortly after his arrival in Phoenix. He'd gone with his wife to see a movie at what is now the Orpheum Theatre. They arrived after the lights were already turned down, and they slipped through the dark into seats in the balcony.

A moment later, someone tapped him on the shoulder and whispered, "You'll have to go downstairs."

It was an usherette. When he asked why he had to move, she answered, "Because you're in the colored section."

He looked around and noticed the black faces for the first time. Then he refused to move.

In 1953, barely out of law school, Muecke was lead attorney on a lawsuit brought to desegregate the Wilson School District, and he won it, before the Supreme Court's 1954 landmark decision, Brown v. Board of Education, outlawed segregated schools.  

Stewart Udall served as a consultant on the desegregation case; Muecke had been a reporter when he first met Udall. The county attorney who opposed the case was Bill Mahoney. The three would become close friends.

Congressman Stewart Udall had supported Adlai Stevenson through two bids for the presidency, but as the 1960 election approached, he felt that the senator from Massachusetts, John Kennedy, with whom he worked on labor-reform bills, had a better chance at winning.

"The night that Congress quit, I went home and went to work for him, lighting up people in my district," Udall remembers. "I did this quietly, because Eugene Pulliam and the Arizona Republic were furious when they discovered that Kennedy had stolen Arizona from [Lyndon] Johnson."

Muecke was chairman of the Maricopa County Democratic party and worked with Udall and Mahoney to lock up delegate votes for Kennedy in the Democratic National Convention. When Kennedy was elected, he paid back his Arizona connection: Udall became secretary of the Interior, Mahoney was made ambassador to Ghana, and Muecke was appointed U.S. attorney for the District of Arizona.

Muecke was sworn in on March 17, 1961, when he was 43 years old.
"I take on the job with humility and the earnest desire to do the best I can," he said after the swearing-in ceremony.

By most accounts, he was an aggressive U.S. attorney. Among other things, he investigated complaints that Republicans were harassing black voters--an allegation that was never proven.

"I really enjoyed being U.S. attorney more than being judge," he says. "You did more. You worked with the grand jury and you investigated, and then you prosecuted. As a judge, you're cut off from everybody. And people don't treat the U.S. attorney the way they treat a judge, who they shun, primarily to show they aren't kissing his ass to get favors from him. And as a judge, you decide cases that irritate your friends."

He was on the fast track to a judgeship. Judge Dave Ling, who was retiring, took Muecke aside and told him, "I heard you're a son of a bitch," and then told him he endorsed him as his replacement. Ling, Muecke says, once called him into his office and poured himself a glass of bourbon. When Muecke reminded him that alcohol was not allowed in the court building, he claims that Ling responded, "I know, young man, I'm trying to get rid of it as quickly as possible."

Muecke received the first paperwork for the application to the judgeship in late 1963; it was dated November 22, the day Kennedy was shot in Dallas. The actual appointment then came from Kennedy's successor, Lyndon Johnson.

Muecke had the strong support of Senator Carl Hayden. He'd worked closely with Bobby Kennedy, who, as attorney general, had a hands-on style with his U.S. attorneys. And he also had the endorsement of J. Edgar Hoover, because of the strong recommendation of the FBI bureau chief in Phoenix.

But the appointment caused an uproar in Arizona. Not only was Muecke a labor man in an antilabor state, he wasn't part of the old-boy network. Judgeships in Arizona generally went to the lawyers from the big establishment firms.

Even as U.S. attorney, Muecke had been harassed by the establishment. He'd lost his Marine Reserve command while being investigated of mysterious McCarthylike charges.

Senator Barry Goldwater, then heading into his unsuccessful presidential campaign, wrote a letter denouncing Muecke to the chairman of the selection committee.

"The President, I understand, has sent the name of Carl Muecke to your committee for consideration as a district judge in Arizona," he wrote. "I understand that the Arizona State Bar has judged this man to be incompetent and I further know the vast majority of Arizona lawyers, I would say approaching 100 percent, are violently opposed to this man being appointed."

In fact, the Arizona Bar had voted 480 to 302 in Muecke's favor, with 120 abstaining.

The Senate confirmation hearing was held September 1, 1964. Carl Hayden accompanied Muecke to it. Senator Olin Johnston, a Democrat from South Carolina, began the questioning, and as Muecke recounts the moment, he affects a deep Southern accent.

"Then we have a letter here from the junior senator from Arizona," Johnston said, "but we won't pay that no mind since the senior senator is for you."

Senator Everett Dirksen of Illinois arrived late. Now Muecke drops his voice to imitate the Republican's famous gravelly tones.

"Young man, why were you investigated in the Marine Corps?" Dirksen asked.
Muecke responded with his own question: "Isn't it true that after two years of investigation there was nothing on my record?"  

Dirksen held out for most of the rest of the month. But on September 29, 1964, Carl Muecke was confirmed as a federal judge.

"He was tough to appear before as an advocate," says Phoenix attorney Paul Eckstein. "Whatever side you were on, even if you were on a side that by his instinct he would support. He could be short. He was not someone who tolerated any kind of equivocation in the courtroom. I would say his demeanor was on the gruff side."

He once fined a lawyer for showing up a half-hour late to court and keeping a jury waiting.

At the same time, he could be very lenient to those convicted in his court, and his creative sentences were both heralded and condemned, but they were certainly talked about.

The magazine The Nation lauded him when he sentenced a draft dodger to three years probation, provided he worked for the government or a nonprofit or charitable organization. He reduced the fine for five youths convicted of drug possession to just $1,000 each, provided they worked to pay it themselves instead of getting the money from their parents.

And over 30 years, he hit all of the high-water-mark issues that defined the era: He presided over the desegregation order and consent decree that created magnet schools at the Phoenix Union High School District as an alternative to busing. He ruled on Ernesto Miranda's burglary charge--Miranda's rape confession had led to the Miranda Decision regarding the rights of arrested persons. He handled a phase of the Don Bolles murder case; the reporter had been a friend to the judge. He knocked down prayer in Chandler schools. He ordered the City of Yuma to allow performances of the nude musical Oh, Calcutta!. He ruled that a state bill that forbade aliens from claiming unemployment compensation was unconstitutional.

In 1979, he was part of a three-judge panel that threw out a state law directed against migrant workers by outlawing strikes during harvest season. The case pitted Cesar Chavez and the United Farm Workers against the agribusiness establishment.

The only controversial issue that Muecke seems not to have treated is abortion.

"I never had an abortion case in my court," he says.
But, in fact, in 1971, he and two other judges refused to strike down a state antiabortion law contested by Planned Parenthood and attorneys from his old firm.

"He was a strong activist. He was involved in about every progressive organization. His blind spot, if you will, is anything to do with the Catholic Church," says Jay Dushoff, his former partner.

Muecke has heard the criticism before.
"Well, I happen not to agree with the Church's opinion on abortion," he says. "And I don't approve of its opinion on birth control. I would say I am pro-choice, but I don't think abortion should be taken lightly. I think the big problem is we don't have sex education and that's why I think the whole thing is stupid."

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.

When that case settled, Muecke had told the papers, "I don't relish the supervision of the prison being placed on this court," and, "Courts should interfere as little as possible with the administration of a prison."

Those words would echo back to him more than 20 years later.
In 1990, Lewis decided to change the mail allowances because, perhaps with good logic, he felt that with the increased prison population, the staff would be overwhelmed by the task of screening all the packages for contraband. Later, with Governor Symington's blessing, he rescinded the prisoners' rights to subscribe to skin magazines.

A prison advocacy group protested, and Muecke felt that if Lewis wanted to change the terms of the consent decree, he would have to go through the legal process to do so. Otherwise, he was violating a binding contract.

Those are the facts of those cases. What came to be perceived as the truth was another matter altogether.

Symington took office in 1991 and took up the banner of states rights, which he waved boldly and opportunistically in Lewis' defense.  

"Sam Lewis did not begin to act up in Hook until Symington became governor," says Andy Gordon, an attorney who became involved in the contempt citations against Lewis that would be filed later. "I have no question that it was a Symington political move to find every cause he could to take on the federal judiciary. And what they did in Hook and in Gluth and in Casey, too, was not just ignore federal court orders, but intentionally violate them."

Among Muecke's greatest detractors was the Phoenix Gazette's editorial writer Mark Genrich, who hammered relentlessly at Muecke for the remainder of the judge's career, even going so far as to say that his own Christmas wishes would be complete if Muecke were removed from the bench.

Muecke remained quiet because of judicial ethics while the papers and Symington were calling him names and accusing Muecke of running DOC, and while the Department of Corrections was trying to get Muecke thrown off the cases. The Ninth U.S. Circuit Court of Appeals, however, was affirming most of Muecke's prison decisions.

When Lewis made his order on skin magazines, Muecke held him in contempt.
Symington made his contempt for Muecke clear by calling for Muecke's impeachment.

On June 12, 1994, Symington kicked the spin into high gear with a guest editorial published in the Arizona Republic under the headline, "Judge Muecke's inmate wish list goes $10 million too far."

The judge, Symington wrote, would cost the state $10 million with his prison cases.

"Judge Muecke was not elected by the citizens of Arizona. He has no right to determine whether our tax dollars should be spent on privileges for criminals. Yet granting privileges to Arizona inmates has become Judge Muecke's obsession, an obsession that has led him to ignore his proper judicial obligations."

What those proper obligations were was unclear. Federal judges could be impeached for "high crimes and misdemeanors," Symington wrote. Muecke's high crime was meddling in state affairs.

Also unclear was the origin of the $10 million price tag. The next week in open court, Muecke asked the defendants' lawyers to present the evidence supporting the governor's statement. After 10 days of hemming and hawing, no firm and final figures could be produced.

The quality of the governor's financial statements has been well-documented in other courtrooms since then.

Symington began his 1995 State of the State address with the kind of battle cry that was popular among right-wing politicians before the bombing of the federal building in Oklahoma City.

"We have endured it all--until finally, from across two centuries, from the founders of our country, came the call for us to stand up like Americans. From the recorded insights of Thomas Jefferson came the pointed reminder that a little rebellion now and then is a good thing."

He was warming up, and then cut to the specifics.
"Our voice will be heard on the subject of federal judges pre-empting executive authority in state prisons. If a fight is what they want, a fight is what they will get. At minimum, I urge you to pass legislation forbidding the payment of tax dollars to the so-called 'special masters' appointed to run state-prison functions--an Orwellian term if I ever heard one."

The Legislature complied by passing just such a bill. And the subsequent refusal to pay the special masters in the three prison cases brought new contempt charges down on Lewis.

On August 24, 1995, the very day that motions were filed to hold Sam Lewis in contempt of his court, Muecke in another case imposed an injunction forbidding any logging in Arizona and New Mexico.

The Mexican spotted owl case had started percolating in 1994, when environmentalists realized that the U.S. Forest Service was permitting logging without undergoing the proper consultations with the U.S. Fish and Wildlife Service on how that logging was affecting the endangered Mexican spotted owl.

The case had landed in Muecke's court by the luck of the draw. Muecke found in favor of the plaintiffs and asked the Fish and Wildlife Service to designate critical habitat for the species. When the environmentalists found memos showing that the Fish and Wildlife Service had no intention of doing so, Muecke started to threaten contempt charges against the service, but to no avail.

Early in 1995, Symington and the State of Arizona tried to file a friend-of-the-court brief in favor of the Forest Service, but Muecke would not allow it because there were not sufficient legal grounds for the state to interfere. Finally, on August 24, he stopped logging altogether until the Forest Service complied with the law and produced a Biological opinion on the spotted owl.  

A week later, on August 31, 400 loggers in their trucks converged on Phoenix to protest the injunction.

Symington told the Gazette, "People are very angry over this arbitrary use of federal power. It's the very kind of thing that incites people to disrespect their government.

"I think we're looking at probably some civil disobedience in this particular action."

Muecke was hanged in effigy by loggers.
He felt that the U.S. Forest Service's refusal to follow court orders mandated the injunction, but he agonized over its consequences.

"He was so worried about the impact and not getting this resolved because of political posturing that he became even more stern than ever," says Mary Wade. "He wanted the defendants to comply with the law, which is not unreasonable, and he wanted the plaintiffs to compromise to the extent they could."

He asked the environmentalists to set aside a list of projects that would keep the lumber mills and other forest industries operating, with no environmental risks; they came up with about 1,000. But none of the exempted projects was ever logged, because the rhetoric of the shutdown was apparently more valuable to the logging companies and the politicians than the timber. And if they were, in fact, working, they would have appeared to the public far less damaged by the judge's decision.

"He found it stressful to think of the impact on those communities and both sides not working it out," Wade continues. "In his mind, this was the law. Has the Forest Service and the Fish and Wildlife Service complied with the law? No, they haven't. I think it affected his health."

Unbeknownst to anyone but his friends and his law clerks, during those stressful months of legal points and counterpoints, Muecke was in fact lying flat on his back recovering from major spinal surgery, unable to travel to his courtroom.

"We would have to go to the house and work up there at the kitchen table," says Mary Wade. "He was unable to walk adequately, to his mind. He is 79, but he sees himself as a Marine, so to come to the courthouse in a walker just wasn't going to do."

Instead, he would call his clerks as frequently as 10 times a day, and would dictate his decisions to them.

Partially because of his failing health, he recused himself from the contempt charges against ADOC director Sam Lewis.

"I was lying in bed when that whole issue came up about the special masters," Muecke says. "I couldn't get up. I had to be careful with my back. I said to myself, 'This is crazy. This is something that has to be hand done. I have to be in court. I have to face these people and I can't do it.'"

The case passed to Judge David Ezra from the District of Hawaii, who was chosen as an impartial outsider.

Despite his crippling surgery, in September 1995, the Ninth U.S. Circuit Court of Appeals asked Muecke to come to San Francisco for a week to help with its case load. And though his clerks say that the week was very draining on his poor health, the old Marine went anyway, because he had been asked to.

In October, Judge Ezra ruled that ADOC director Sam Lewis had in fact been in contempt of the court.

Symington spoke out.
"Once again, judicial power is imposed in this state in favor of criminals and against the state officials who have the responsibility of dealing with them," he said in an official statement. "Whether they are juveniles or adults, the criminals of America have found too many faithful friends among judges."

Ezra's decision was upheld by the court of appeals.
Meanwhile, on November 29, 1995, Arizona Attorney General Grant Woods argued the Casey case on prison libraries before the U.S. Supreme Court.

A week later, bowing to pressure, Sam Lewis resigned.
Muecke was being pressured to resign, as well, not only by the press and the governor, but by his wife, who was understandably tired of the fight and the toll it was taking on her husband.

"He did not want to quit, because he believes in what he was doing," says Mary Wade. "I think he had a hard time letting go."

Muecke's longtime friend Herb Ely says, "I saw a somewhat increased hostility and frustration because he clearly thought the attacks on him in doing what he thought the Constitution mandated him to do were unfair and were difficult to answer."

Although the state law forbidding payment of special masters had been knocked down, Senator Jon Kyl had managed to pass federal legislation to the same effect.  

Shortly after, on June 6, Muecke recused himself from Gluth, Casey and Hook, the three prison cases.

Then, at the end of the month, the U.S. Supreme Court overturned Casey. Justice Antonin Scalia wrote the opinion, but Justice Clarence Thomas twisted the knife.

"The Constitution charges federal judges with deciding cases and controversies, not with running state prisons," he wrote. "Yet, too frequently, federal district courts in the name of the Constitution effect wholesale takeovers of state correctional facilities and run them by judicial decree. This case is a textbook example."

Ironically, the case had been about prisoners' access to legal libraries, and not about who should run the prison.

Justice John Paul Stevens agreed in his dissent that Muecke's decree had been too specific in his directions to the prisons, but he noted that the state had repeatedly violated orders in the earlier Gluth case.

"I emphatically disagree, however, with the Court's characterization of who is more to blame for the objectionable character of the final order," Justice Stevens wrote. "Much of the blame for its breadth, I propose, can be placed squarely in the lap of the State."

And furthermore, his dissent continued, "One might have imagined that the State, faced with the potential of this 'inordinately--indeed wildly intrusive' remedial scheme [. . .], would have taken more care to protect its interests before the District Court and the special master, particularly given the express willingness of both to consider the State's objections. Having failed to zealously represent its interests in the District Court, the State's present complaints seem rather belated. . . ."

In other words, it had all been a show.

The logging case stayed in Muecke's court, with the Forest Service stonewalling on the orders to produce a biological opinion on the effects of logging on the spotted owl.

The service flagrantly violated the terms of the injunction on one occasion and allowed trees to be cut without Muecke's permission, and he again threatened to hold the agency's heads in contempt.

But essentially, the Forest Service was waiting Muecke out and it won. Muecke recused himself, and in December 1996, Judge Roger Strand lifted the logging injunction.

One day later, Chip Cartwright, the Southwest regional forester for the Forest Service, announced that the Forest Service would again violate the law. While the case had been in Muecke's court, the Forest Service grudgingy changed its forest plans--the blueprints that dictate how the forest is managed--to help protect spotted owls and goshawks. Federal law dictates that if the forest plans are changed, then all pending projects must conform to the new rules. Cartwright said otherwise. The same environmentalists immediately filed suit, but Judge Paul Rosenblatt denied their request to reimpose the injunction. When the environmentalists appealed Rosenblatt's decision, the Ninth Circuit overturned it and put the injunction back in effect. It remains in effect today.

Curiously, there was no public outcry about the decision.
"The presumption is that if Muecke imposes such an injunction, he's an owl lover," says attorney Jack Brown, an old friend of Muecke, "and if [some other judge] issues it, well, he's constrained by these crazy environmental laws."

Ironically, Muecke felt himself constrained by those same laws.
"This lawsuit involves a quagmire of congressional laws and regulations supposedly designed to protect threatened and endangered species, in this situation, the Mexican Spotted Owl," he wrote in an order scolding the Forest Service for violating the injunction. "Instead of providing clear and simple guidance to the parties and the court, Congress probably has created as many problems as it has solved. A major part of the responsibility for the logjam preventing the end of this injunction lies with Congress, not with the Court sworn to uphold and enforce the laws, even those Congress passes. This lawsuit also involves a fox guarding the henhouse."

And then in his conclusion, he drove his point home:
"This Court must require defendants to follow the law, as written by Congress. The grim reality of defendants' failure to do so means a continuing injunction, with the associated loss of money and hardship to local communities."

Now the judge lumbers through the forests on his daily walks near his Flagstaff home. He knows he has not saved the forests, but only postponed the day that the chain saws and bulldozers rip through them.

His dogs root along the forest floor, happily disturbing squirrels and lizards. The judge watches them as he ponders the past and the future.

He retired out of deference to his wife. If it had been up to him, he would probably have left the bench in a box, to try to make sure that someone looked out for the rights of the underprivileged, that somebody remembered civil rights and human rights, and the violations of those principles that he saw firsthand in Germany after World War II.  

He still feels that every decision he ever rendered, he rendered with good intentions and a strict interpretation of the law.

And that's Carl Muecke's honest truth.


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