DA’s Office Can’t Trust Judge

It seems District Attorney Mike Schrunk’s office cannot trust a Multnomah County Circuit Court Judge to deliver a fair and impartial trial. A deputy from Schrunk’s office filed an affidavit of prejudice against Judge Marilyn Litzenberger, dated yesterday, alleging that “the state cannot receive a fair and impartial hearing” before the judge.

AFFIDAVITING: SCHRUNK (left) AND LITZENBERGER (right)…

Filing an affidavit against a judge is something done routinely by defense attorneys, but it is rarely used by the DA’s office, because the move is seen as politically risky: It pits the state against a judge elected by the people. Indeed, the last time a judge was served an affidavit by the DA’s office in Portland was more than three years ago.

The affidavit (scanned copy, after the jump) was filed in a felony case against a defendant named Thomas Ballard. But affidavits filed by the DA’s office are usually served repeatedly against the same judge in recurrent cases for a period of several months, and courthouse sources say the DA’s office plans to affidavit Litzenberger in all felony cases from now on.

It’s not clear, yet, what specific move by Litzenberger has prompted the DA’s office to hit back, although Litzenberger has a reputation for fierce independence within Portland’s legal community. In other words, she refuses to allow more leeway to deputy DAs in court than she allows public defenders. That might be perfect in an ideal world, but it seems that Litzenberger has, for whatever reason, ruffled the DA’s feathers.

“The affidavit of prejudice is an absolute right for an individual attorney to file if they believe a judge cannot be fair on an individual case,” says Lane Borg, executive director of Metropolitan Public Defenders. “But it is unusual to see them used in a systematic way, and I think that is of concern.”

There are currently three judicial vacancies in circuit court. Some say this move by the DA may be intended to send a message to those considering a run for those positions.

“Affidavits are filed frequently,” said Schrunk, when the Mercury caught up with him, yesterday. “And we filed an affidavit. I’m not going to engage in any trash talking about a specific judge.”

Schrunk refused to answer the Mercury‘s questions about his motivation for the affidavit, or whether his office intends to continue pursuing its vendetta against Litzenberger over the next several months. Meanwhile Litzenberger is yet to return the Mercury‘s calls for comment.