DA’s office questions fairness of county judge

A 16-page memo details the concerns of her impartiality

Multnomah County Circuit Court Judge Judy Matarazzo in a photo posted to Twitter on August 23, 2016 by the Oregon Historical Society. (Courtesy of the Oregon Historical Society)

PORTLAND, Ore. (KOIN) – The Multnomah County District Attorney’s Office is questioning the fairness and impartiality of a county circuit court judge.

In a 16-page memorandum obtained by KOIN 6 News the DA’s office outlines its concerns with Judge Judith Matarazzo.

“The State has identified four general areas of examples that serve as the basis for its belief that the State cannot receive a fair or impartial trial or hearing before Judge Matarazzo in any criminal or civil matter to which the State of Oregon, the Multnomah County District Attorney’s Office or Rod Underhill is named party,” according to the memorandum.

Matarazzo has started criminal proceedings without a deputy district attorney present, has not complied with certain state statutes, has “engaged in repeated pattern of violating the law in diversion hearings” and has made “legal decisions that are far out of keeping with local standards,” according to the memorandum.

In the memorandum, the office states Matarazzo has “engaged in a pattern of what the State believes to be a series of unfair judicial decisions that are out of keeping with typical decisions in Multnomah County, and are generally not in keeping with community safety standards or expectations.”

The DA’s office uses the case against Cary Dean Devore as an example.

In March 2017, the DA’s office recommended a sentence of 6 years in prison after Devore’s 9th DUII conviction. The presumptive grid block sentence for this felony DUII was 2.5 years in prison.

“Judge Matarazzo imposed a year local time (approximately 6 months actual time), suspended the presumptive prison sentence, and allowed [Devore] into the DISP program [DUII Intensive Supervision Program] over the State’s objection.”

The DA’s office also used the case against Jonathan Michael Flesey as another example. In that case, Matarazzo allowed Flesey into the DISP program despite his prior conviction for criminally negligent homicide where he killed a person in an earlier DUII crash.

The DA’s office cites 6 separate times in which Matarazzo started a hearing without a prosecutor being present. In one case, the judge conducted an entire hearing in the absence of the DA’s office.

On May 20, 2015, DA Rod Underhill wrote to Matarazzo to express the concern he and his office had with Matarazzo allowing an ex parte hearing to occur on April 23, 2015. The letter came about 2 months after Underhill and members of his office met with Matarazzo, in her chambers, to discuss why she had allowed ex parte hearings to proceed.

“At our first meeting, I spoke frankly to you about my belief that the voices and opinions of representatives from the DA’s office were routinely ignored,” Underhill wrote.

Oregon criminal defense attorney Kevin Sali said ex parte hearings are typically reserved for non-critical issues, such as scheduling matters.

On September 9, 2009, former Multnomah County Chief Deputy District Attorney Norm Frink, who has since retired, sent out an e-mail with the subject line “Court Appearances before Judge Matarazzo.” The e-mail was sent mostly supervisors within the DA’s office and read, “There are reports that on occasion Judge Matarazzo is beginning court appearances without the DDA present. There are also reports that she is shifting court appearance times and expecting the DDA who is present for, say, a 9 am appearance to be able to handle a 9:30 appearance. As to the latter, that, of course, may be completely reasonable under some circumstances, but not under others. In any event, if you have appearances in this department and there are events of this nature would you please let me know.”

The DA’s office also cited 3 cases in which they believe Matarazzo “engaged in sentencing practices over [the] State’s objection and, at times, in direction violation of controlling Oregon statutes.”

In two cases, Matarazzo suspended the mandatory 90-day jail sanction for Jeff Wayne Urie and Keisha Marie Epps who, separately, pled guilty to DUII. Both of her rulings were reversed by the Oregon Court of Appeals.

At the time of Urie’s re-sentencing, Matarazzo imposed the required 90-day jail sentence. However, the DA’s office claims she allowed Urie a “turn self in” date so he could serve his sentence at a later time and told him that she would terminate his probation early “even if he had not yet completed his jail sanction” – thus circumventing the statute and Court of Appeals opinion.

Sali said it is fairly uncommon, but not unprecedented, for district attorneys to file motions requesting a certain judge not be allowed to handle particular cases.

In 2009, the Oregonian/Oregon Live reported the Multnomah County District Attorney’s Office decided it would prevent Circuit Judge Marilyn Litzenberger from presiding over certain serious criminal cases because prosecutors were concerned she could not be impartial.

In Klamath County, the DA’s office has a “long standing policy and practice” to file a motion and affidavit against Judge Cameron F. Wogan in every single criminal case.

“…it is our policy to defend public safety, ensure offenders are held accountable, and to facilitate the efficient and equitable resolution of matters. Historically decisions of the Honorable Judge Wogan have frequently been slow, causing delay in receipt of justice for both victims and offenders. This creates a risk to the safety of community members, and delays the beginning of treatment and other measures that effectuate change after a sentence is imposed,” the affidavits state.

Matarazzo was appointed to the bench in August 2006.

Attempts to reach Matarazzo for comment Wednesday morning were not immediately successful. Her staff told KOIN 6 News she is currently in the middle of trial. Court records show the four-day non-criminal trial is scheduled to conclude Thursday.

On Friday, Multnomah County Circuit Court Presiding Judge Nan G. Waller approved the DA’s motion to have a new judge assigned to the case in which the Matarazzo memo was filed. The case itself is a felony case being handled by the Multi-disciplinary Child Abuse Team.

Waller, speaking by phone on Wednesday, said she could not comment on the decision by the DA’s Office to file its  memorandum, but added that it is within the rights of any party or attorney to request a new judge so long as the request is made in good faith and without  purposefully seeking delay.

“We have a great bench,” Waller said. “I think it would be inappropriate of me to comment on any parties right to exclude or file a motion for a change of judge.”

Read the full memorandum here: