Prosecutors’ Decision to Cripple a Judge’s Career Echoes a Larger Battle Over Criminal Justice Reform in Oregon

Judge Judith Matarazzo irked Multnomah County prosecutors by trying to change the rules on DUII sentencing. So they struck back.

Shortly after 4 pm on June 6, Circuit Judge Judith Matarazzo received an unusual visitor at her office in the Multnomah County Courthouse.

An hour earlier, District Attorney Rod Underhill had called to request a meeting. The pair had met only a handful of times before.

Matarazzo had a lot on her mind. She would head to the airport later that day to pick up family visiting for her parents' 60th wedding anniversary. In four days, more than 100 people would fill her house for the celebration.

And after 11 years on the bench, Matarazzo was also hoping for a major step up. In the spring, she'd applied for one of two openings on the bench of the Oregon Supreme Court. She was a finalist, but didn't get chosen by Gov. Kate Brown. Now, Matarazzo, 58, was seeking the support of her fellow judges to become the presiding judge for Multnomah County.

Matarazzo wondered what Underhill wanted. "Quite frankly," she recalls. "I didn't know why he was there."

In a 40-minute conversation, the county's top prosecutor explained that he planned to ask the court to remove Matarazzo from a case his office was prosecuting.

Prosecutors and defense attorneys sometimes make such requests. But Underhill went much further. He told her none of the 81 lawyers in his office would ever try a case in front her again. That kind of blanket rejection is extremely rare.

"I was truly stunned," Matarazzo says.

The next day, Underhill's office delivered a 16-page memo alleging a decade of wrong decisions and improper behavior on her part. The DA's conclusion: "The State cannot receive a fair and impartial trial or hearing before Judge Matarazzo in any criminal or civil matter."

Lawyers routinely file affidavits on specific cases arguing that a judge is incapable of fairly trying that case, either because of a conflict of interest or a perceived bias.

But in Matarazzo's case, Underhill went nuclear. His blanket affidavit restricted Matarazzo to hearing civil cases—less than 25 percent of the court's caseload.

"It's like a Taylor Swift song," says professor John Parry of Lewis & Clark Law School. "The district attorney is saying 'we are never ever getting back together' with Judge Matarazzo."

In effect, Underhill had sidelined an independently elected member of another branch of government who did not work for him.

That bold step marks another salvo in a larger battle raging between Oregon prosecutors and criminal justice reform advocates. It's a philosophical disagreement over what role judges should play, who should be behind bars and for how long—and how the vast sums of money allocated to public safety should be spent.

For decades, prosecutors held the upper hand.

"If you look statewide, district attorneys and the DA Association have had a huge footprint on influencing the Legislature," says David Rogers, executive director of the American Civil Liberties Union of Oregon.

Lately, reform advocates like Matarazzo, an outspoken critic of mandatory minimum sentences that give prosecutors enormous power, have gained ground.

But now, she's experiencing a backlash.

"This experience is 10 times worse than breast cancer," says Matarazzo, who has survived two bouts with the disease. "It strikes at who you are. When someone says you cannot be fair and impartial, for a judge, that strikes the essence of what it means to be a judge. Because if there's any truth to that statement, you don't belong on the bench."

Judith Matarazzo is one of 38 judges for the Multnomah County Circuit Court. She won election to the bench in 2006 after 20 years of trying civil cases in private practice.

"I needed a change," she says. "Anytime someone is faced with their own mortality [her second battle with cancer], it changes the way you see things. I needed something more."

A fireplug with a big smile and cropped auburn hair, Matarazzo likes to cook Italian food—especially cannolis—and aspired to be a folk singer before she started her legal career.

"She's very insightful and very bright," says her former law partner Mike Gutzler. "In personal injury work, everyone you deal with is hurt. She has a lot of compassion. She's very down to earth."

Since becoming a judge, Matarazzo has handled a wide variety of cases but has focused half her time on a specialized section of the court: the DUII Intensive Supervision Program, or DISP.

Multnomah County is the only county in Oregon with a court for repeat DUII offenders. That court gives judges greater discretion than any other specialty court to determine which offenders are fit to enter DISP to receive treatment rather than jail time.

Matarazzo says she's come to believe that incarceration is often less effective than treatment—and she's voiced that view aggressively.

"My perception of most judges is, they are somewhat conflict averse," she says.
In the DISP court, Matarazzo regularly clashed with prosecutors over the 90-day mandatory minimum prison sentences that state law requires for defendants convicted of three DUIIs in 10 years.

Such sentences sometimes cost people their jobs and their ability to pay for DISP court-ordered treatment.

She and other DISP judges repeatedly asked legislators to relax the law for defendants in treatment court. They got nowhere.

Matarazzo tried to suspend, break up or offer alternatives to the sentences so that someone who had racked up a third DUII could still avoid jail and get treatment.

Some of the complaints in the DA's memo, Matarazzo says, stemmed from her attempts to use her judicial discretion to funnel offenders into treatment instead of prison.

"If you take a judge's discretion away," Matarazzo says, "you might as well get a computer and plug in all of the factors and spit out a result."

Matarazzo's disagreements with prosecutors extend beyond opinions about incarceration and sentencing.

Last year, county and court officials finished planning a new, $300 million building to replace the crumbling, century-old county courthouse. Matarazzo pushed for the DA's office, now located in the courthouse, to be excluded, noting that it and the court represent two independent branches of government that should be separated.

"I don't think the DA's office belongs there," she says. "It gives the perception that the district attorney and justice are the same."

She lost that battle, and the district attorneys and judges will be moving into the new courthouse together when it opens in 2020.

When District Attorney Mike Schrunk retired in 2012 after three decades as the county's top prosecutor, he anointed as his successor the lanky Underhill, a keen cyclist who had spent his entire career in the DA's office and whose experience with criminal justice is personal—his younger brother is a convicted meth dealer.

Although DAs are elected officials, they rarely face challengers. Underhill ran unopposed in 2012 and 2016.

Underhill employs 81 prosecutors and has an annual budget of $32.9 million.
District attorneys set the agenda for the criminal justice system by deciding which cases to prosecute. Their choices signal their priorities to police and the public.

"Prosecutors have an enormous amount of discretion—and usually that's a good thing," says Lewis & Clark's Parry. "They use that discretion not to charge people or to bring lower charges than they could bring. But there are people who worry that DAs have so much discretion that they control the justice system."

Although he's served for a far shorter period than many Oregon DAs, Underhill has earned his peers' respect.

"Rod has a reputation among the district attorneys in the state as being a particularly careful and thoughtful guy," says Clatsop County DA Josh Marquis. "He does not leap before he looks."

Earlier this year, Underhill moved to defelonize the possession of minor amounts of hard drugs, well before other Oregon counties. His office also works closely with the court on treatment courts for drug and alcohol addicts and people suffering from mental illness.

"He's been more willing than others to look at alternative justice programs that some of us have been more leery of," Marquis says. "Rod is reflective of the Multnomah County community."

Despite Marquis' assessment, Underhill leads an office that reformers say views some judges—and Matarazzo in particular—as too soft on criminals.
A judge, above all, is supposed to be fair and impartial. Veteran prosecutors say she's neither.

"She's completely biased against the state and crime victims," says Norm Frink, Schrunk's longtime top deputy before retiring in 2012. "She probably should have been affidavited years ago."

The memo makes perhaps its best case that Matarazzo has a bias against the state when it quotes her alleged reaction to the DA's decision to appeal a case in which she tried to avoid handing down a mandatory 90-day sentence.

Matarazzo and other judges working on the DISP court saw the mandatory sentence as a barrier to getting defendants into the treatment court. But the DA's office was committed to following the law to the letter. The memo alleges that Matarazzo's reaction to the appeal reveals her bias against the state: "I can barely contain my contempt that the state appealed this," she is quoted as saying.

On three occasions, private lawyers have filed single-case affidavits against Matarazzo, but that's a pretty standard number for any circuit judge.

Underhill's June memo, however, lists a decade's worth of minutely detailed grievances. They include:

• Allegations that in six instances over the past eight years, Matarazzo started a court proceeding without a prosecutor in the room. Matarazzo says she did so because the proceedings were merely procedural and Underhill's office had been briefed on the expected nature of the proceedings.

• Complaints that Matarazzo failed in three cases to impose the mandatory 90-day jail sentence for offenders convicted of three DUIIs in a 10-year period. In two of those cases, the Oregon Court of Appeals found Matarazzo had erred and reversed her rulings.

"If our statistics show us that the rate of recidivism is substantially less in a court-supervised program, I'm probably pretty pragmatic and going to give them a shot," she says. "If they blow it, they can go to prison."

• Complaints that Matarazzo improperly granted extensions to defendants in the DUII diversion program, which allows first-time offenders to avoid a conviction on their record.

She says she did so because she believes an offender will either successfully complete the requirements with the extension or will end up with a conviction.

Deputy district attorneys met with Matarazzo in 2015, and Underhill sent her a letter to express their concerns that she had been holding hearings without a prosecutor present, which they said violated judicial ethics. But one of Matarazzo's colleagues says that was insufficient warning.

Judge Eric Bloch, who ran the DISP court from 2003 to 2006, says he thinks Matarazzo's decisions fell within the parameters of treatment-court best practices and that Underhill's disagreement with her could have been resolved without the affidavit.

"I would hope that before the DA pushes that button," Bloch says, "there would be a clear track record that the DA tried to communicate with the judge about these concerns and that those concerns are rising to a level where the DA's office is concerned about the judge's ability to be fair to the state."

Although Matarazzo says Underhill's affidavit caught her by surprise, she probably should have seen it coming.

In March, she was under consideration for a vacancy on the state's top judicial panel, the Oregon Supreme Court.

Former Supreme Court Justice Robert "Skip" Durham says Matarazzo would have made a strong addition to the court. "She's an excellent judge," Durham says, "and an excellent student of the law."

But while her candidacy was pending, Matarazzo allowed a nine-time DUII offender to enter DISP. She says she was merely ratifying a decision another judge had already made.

Nonetheless, Underhill's office reacted with fury, and a story appeared in The Oregonian on March 10. Nobody on the panel vetting the Supreme Court candidates or in the governor's office could have missed it.

"The community is in danger. Anybody who is walking on the sidewalk, anyone who is in the bike lane…is at considerable risk," Deputy District Attorney Mike Botthof said in court at the time, arguing for a harsher punishment.

The story, which Matarazzo describes as "sensationalism," could have been written at nearly any time, she says, because DISP judges routinely take the risk of accepting offenders with three or more DUIIs into the program.

Matarazzo thinks the bad publicity may have interfered with her getting the Supreme Court appointment from Gov. Brown, although the governor's office denies any connection. Meanwhile, Underhill's office says no prosecutors spoke to The Oregonian for the story.

And shortly after Underhill announced the impending memo removing her from all criminal cases, she lost the vote for Multnomah County presiding judge to her colleague Stephen Bushong.

Before Underhill revealed the memo, she expected to win.

"Two days before the memo came out, our informal poll had me at 20 to 17," Matarazzo says. "So I'm convinced that it created a problem for me there."

Since the Underhill memo in June, Matarazzo has not been allowed to take on any criminal cases, which make up the majority of the work in the Multnomah County Courthouse.

Judge Edward Jones, Multnomah County's chief criminal judge, says he's seen such a blanket affidavit filed only a handful of times in his 40-year legal career.

He says Underhill's action sends a message to all judges.

"Obviously, when he says, 'We won't appear before you,' that's not a trivial act," Jones says. "Everybody's going to think about it."

Parry agrees.

"Once they've done this to one judge, any judge could be in the cross hairs," he says. "A result of this could be that judges will feel pressure not to disagree too much or too often with the DA's office."

Underhill denies he was trying to send a message.

"My efforts on behalf of the district attorney's office and as district attorney were not intended to be political or have political consequences," he says, "but instead intended to ensure fair and impartial trials."

Does that mean he thinks Matarazzo is the least qualified member on the Multnomah County bench? Underhill's office declined to say, but she is the only judge he has chosen to remove from all criminal and civil cases involving the state since taking office.

Across the country, many Republicans—even the Koch brothers—are locking arms with liberal reformers to reduce incarceration.

Oregon's criminal justice system is relatively enlightened, but the incarceration debate is furious here as well.

In 1995, voters approved Measure 11, imposing mandatory minimum sentences for certain violent crimes and thereby limiting judicial discretion. It gave prosecutors substantial leverage.

"Our criminal justice system is set up to give outsized power to district attorneys," says Bobbin Singh, executive director of the left-leaning Oregon Justice Resource Center. "This imbalance gives DAs and prosecutors enormous control."

Oregon's recent criminal justice reform efforts have focused on reducing incarceration and limiting DAs' power. On Aug. 27, the ACLU of Oregon launched an advocacy campaign that seeks to restrict the authority of the state's district attorneys, calling them "the most powerful people in the criminal justice system."
In 2013, the pendulum swung toward reformers in Oregon—a bit. That year, lawmakers approved modest reductions in mandatory sentencing. This year, they increased the pace of reform, defelonizing personal possession of heroin and meth—and, in another blow to prosecutors, requiring the audio recording of all grand jury sessions.

"We are seeing some shift that's happening at the Legislature," says the ACLU's Rogers. "People are recognizing more and more the power and influence that DAs have."

One power district attorneys retain, however, is the blanket affidavit.
Matarazzo is not the only judge who's feeling prosecutors' wrath.

In 2009, while Schrunk was still district attorney, his office affidavited Marilyn Litzenberger, another Multnomah County circuit judge with very public views on judicial independence, and refused to allow her to hear any felony cases brought by the state. The office still affidavits Litzenberger on some felony cases.

A number of judges across the state have had similar blanket affidavits filed against them recently by district attorneys, according to the ACLU of Oregon.
They include Judge Josephine Mooney in Lane County, Judge Cameron Wogan in Klamath County, and Judge James Fun in Washington County.

"We've seen a number of DA offices look to wholesale disqualification of a specific judge based on a perceived bias," said the ACLU's Rogers. "It's very concerning."

Kevin Neely, who lobbies for the Oregon District Attorneys Association, says the practice is fair because both defense attorneys and prosecutors can affidavit judges—and it falls well within a DA's legal prerogatives.

"That's the balance that's in the court system," Neely says. "DAs have the right to affidavit judges. It's not just Rod—there are a handful of judges who have been affidavited around the state. That is in adherence to the law. They can't state that any DA in the state is doing anything or operating in any way other than in accordance with the law."

Some criminal justice reform advocates worry that even as lawmakers seek to rebalance the criminal justice system, the power of affidavits could curtail the independence of the judiciary.

"The person who is supposed to be in control of the justice system," Parry says, "is the judge."

That was Matarazzo's hope when she went on the bench.

She says her goal is the fair administration of justice and to slow the revolving door of offenders who cycle through the courtrooms and jails.

Affidavits work differently from the justice system, in which the accused is innocent until proven guilty. If a judge wants to knock down an affidavit, she must prove the lawyer who filed it acted in bad faith. In other words, an affidavited judge is guilty until proven innocent.

Underhill's office could lift the blanket affidavit at any time. Matarazzo could still redeem herself in the DA's eyes. "She'd have to follow the law and allow us to participate in the hearings," says Deputy District Attorney Kirsten Snowden.

Matarazzo says she hopes to find some kind of compromise with Underhill so she can go back to trying criminal cases.

"I'm 58 years old," she says. "I'm not wanting to retire anytime soon."

Driving to Sobriety

The Multnomah County Circuit Court's DUII Intensive Supervision Program aims to divert repeat offenders into drug or alcohol treatment rather than locking them up.

Tyler Waud is an example of the program's potential. Waud, 37, who today says he is clean and sober, works at his family's funeral home.

Waud entered the program in January 2011, after being arrested for driving 95 mph on a freeway while drunk. His then-4-year-old daughter sat in the back seat.

Waud says DISP saved his life and allowed him to rebuild a relationship with his daughter. He first met Judge Judith Matarazzo a few weeks after he entered the program. He had failed to meet some DISP requirements, and Matarazzo could have tossed him in jail. Instead, she gave him a final chance.

"She came up off her bench and pulled up a chair and talked with me at eye level," Waud recalls. "She made me feel like I was a person—and not just a case number, a person in the system, a criminal, an addict and an alcoholic."

Waud says he graduated from DISP in January 2014, two years early. He says he's become a different person.

"I was a walking hurricane," he says. "I'm not a walking hurricane anymore. I don't hurt people. I don't destroy things. That's what DISP did for me. It gave me a structure and a different way to live a life."