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Court rebukes Assistant DA Boyarsky for misconduct

Original post made on Dec 28, 2012

Chief Assistant District Attorney Jay Boyarsky, the second-highest-ranking official in the Santa Clara County District Attorney's Office, was castigated in court documents by a state appeals court on Thursday, Dec. 27, for misconduct while handling a hospital commitment case against a sexual predator, according to court documents.

Read the full story here Web Link posted Friday, December 28, 2012, 5:28 PM

Comments (14)

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Posted by Hmmm
a resident of East Palo Alto
on Dec 28, 2012 at 9:56 pm

Yet more egg on the face for the naughty Santa Clara County DA's office. When are they ever gonna learn?? Boyarsky sure got some coal in his stocking this holiday season!


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Posted by Matt
a resident of Old Palo Alto
on Dec 28, 2012 at 11:03 pm

Jay Boyarsky is an incredibly honorable person and family man. The laws of this state will always be uphold by him, and no doubt there was an honest application of justice in this situation.


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Posted by Hmmm
a resident of East Palo Alto
on Dec 29, 2012 at 12:04 am

Matt - did you even read this article, or anything else pertaining to this situation? You should, if you haven't. This is *not* how officers of the court should behave w/their cases. He's smart enough to have known better.


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Posted by Jon Foster
a resident of Duveneck/St. Francis
on Dec 29, 2012 at 11:12 am

The article fails to note that the trial judge approved Boyarsky's questions and argument, and a spokesperson for the California Attorney General said "none of the cited instances constituted prosecutorial misconduct." As Matt says in his comment above, Jay is an incredibly honorable person. He is also a dedicated public servant who has been working for 18 years in the DA's office to protect the community. Frankly, the ruling that Boyarsky's questions and argument amount to misconduct is hard to understand. If a lawyer's questions are not appropriate, the trial judge has the discretion to order the witness not to answer them -- or, in extreme cases, to order a new trial. In this case, the trial judge didn't even think there was anything wrong with the questions and argument. So for the appellate court to label the questions misconduct strikes me as way over the top. It's not even clear the appellate court fully understood the facts – they stated (and the article repeats) that teenagers are housed at the state hospital for sexual predators. But that is not true; no teenagers are housed in a State hospital designed for pedophiles and rapists--for obvious reasons.

By the way, the perpetrator in this case has been convicted multiple times of sexually molesting children. Congratulations to Jay and the DA's office for doing everything possible to keep the perpetrator off the streets.


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Posted by Hmmm
a resident of East Palo Alto
on Dec 29, 2012 at 12:58 pm

Oh please - he went way too far & it's obvious.
Web Link

It was his job not to go so far & he admits he blew it.
Stop w/the hyperbole - his being a good family man isn't the point. This DAs office is problematic, which is why Rosen's trying to clean it up.


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Posted by A little objectivity
a resident of Community Center
on Dec 29, 2012 at 3:47 pm

Good people with good intentions sometimes make mistakes and they learn from their mistakes. Is'nt that what this situation boils down to?


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Posted by Sue Dremann
Palo Alto Weekly staff writer
on Dec 29, 2012 at 7:29 pm

Sue Dremann is a registered user.

Thank you, Jon Foster, for pointing out that the trial judge overruled the defense objections to Mr. Boyarsky's arguments. I accidentally deleted the paragraph pasted below, and I have added it to the story:

The judges also said the trial judge erred by turning down every objection Shazier's attorney made to Boyarsky's arguments, and that the defense objections were appropriate.


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Posted by Hmmm
a resident of East Palo Alto
on Dec 29, 2012 at 8:00 pm

It would also be nice to include the ruling:
Web Link


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Posted by Wondering?
a resident of Another Palo Alto neighborhood
on Dec 29, 2012 at 8:22 pm

> The judges also said the trial judge erred by turning down
> every objection Shazier's attorney made to Boyarsky's arguments,
> and that the defense objections were appropriate.

This additional paragraph adds a lot of context. However, it does make one wonder why the trial judge was not admonished by these findings as Boyarsky was.

Perhaps the process only allowed for a review of Boyarsky's actions, but given that it is the obligation of the trial judge to insure that all presentations/questions/answers are within the guidelines/laws for adjudicating trials--then there seems to be another flaw in the system, which would have called for an immediate review of the trial judge's actions/rulings if, for any reason, the prosecutor is found guilty of misconduct.

> "This is not a case in which the prosecutor engaged in
> a few minor incidents of improper misconduct. Rather, the
> prosecutor engaged in a pervasive pattern of inappropriate
> questions, comments and argument, throughout the entire trial,
> each one building on the next, to such a degree as to undermine
> the fairness of the proceedings," Rushing wrote.

The public also needs to wonder how much of this "pervasive pattern of misconduct" Boyarsky went on during private meetings with witnesses, so they they were well primed to answer these sorts of questions when they were asked in open court?

> "I made my arguments in good faith.

What does this even mean, in this sort of context. The actions/role of prosecutors are not faith-based. They are defined, more-or-less, by various laws/protocols/rules of procedure that bind the legal system together. Boyarsky seems to be saying that he was not aware than any of his actions were wrong, at the time. Which makes one wonder just how pervasive this sort of behavior of his could be found in other of his prosecutions?

All-in-all, a very troubling matter. Makes one wonder if anyone is really in control of the District Attorney's Office, with its almost 200-strong army of prosecutors that seem to have a "win at any cost" mindset, and no one really at the helm.


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Posted by Protect our children
a resident of Evergreen Park
on Dec 30, 2012 at 12:53 am

The perp was a convicted, multiple sexual offender. Boyarsky was trying to protect the community. Yes, he's no-nonsense when it comes to cases like this, but using this pathetic reason to discipline him looks like overreaching - especially in light of the fact that the presiding judge in the trial implicitly APPROVED Boyarsky's line of questioning.

The only miscarriage of justice here is that Mr. Boyarsky is being disciplined in WAY too harsh a manner, even possibly being brought up for review by the State Bar. Don't they have anything better to do?

Jay Boyarsky is one of the finest prosecutors any community could ask for, and I hope the perps new trial vindicates the prior result. Good luck, Mr. Boyarsky! YOu deserve FAR better than this - in fact, they should have given you a medal, instead of a reprimand.


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Posted by Protect our children
a resident of Evergreen Park
on Dec 30, 2012 at 12:57 am

Also, interesting that many of the comments here seem to be personally or politically motivated. I wonder how many who are supporting this absurd overreaching by the State have themselves (or have people closely known to them) been at the losing end of their own (or closely known others) illegal actions, overseen by Mr. Boyarsky. Again, Good luck, Mr. Boyarsky! You deserve far better than this. I look forward to your continued excellent service for many years to come!


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Posted by Antoine Dodson
a resident of another community
on Dec 30, 2012 at 4:31 am

It's a sad day for the justice system when someone who is protecting the community is treated with less fairness than a predator who rapes children.


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Posted by Wondering?
a resident of Another Palo Alto neighborhood
on Dec 30, 2012 at 8:23 am


> Jay Boyarsky is one of the finest prosecutors
> any community could ask for,

Several people have posted this claim, but with no verifiable evidence. How would anyone come to this conclusion, using access to publicly available information about Boyarsky? The District Attorney's Office does not provide much in the way of information about its activities/employees. The DA does not offer basic information about its activities--such as how many cases each employee was assigned, how many cases went to trial, what the win/lost numbers for these cases was, the number of people incarcerated by each employee, and so on.. how does one come to a conclusion about any/all of those working as public prosecutors?

While there may be a body of informal knowledge about Boyarsky that local defense lawyers have accumulated via their dealings with him—this information is rarely shared with the public, in any meaningful way. Some times people running for elected positions, such as Judge, might receive a "thumbs up/down" by the local Bar Association—but that's about it. (Boyarsky did run for Judge, but the public did not think enough of him to elect him to that position.)

For the most part, all anyone in the community can ever know about people like Boyarsky is hearsay.

> especially in light of the fact that the presiding judge in the
> trial implicitly APPROVED Boyarsky's line of questioning.

Which makes this situation even worse. The Judge is not supposed to be "implicitly" on the side of the prosecution. He is supposed to be neutral, under the "presumption of innocence" theory. The Judge also seems to be at fault here.

Not directly discussed yet is whether people charged with this sort of crime should be considered guilty, even without a trial. Certainly people tend to get emotional when talking about crimes that involve/exploit children. It makes trying to analyze any misconduct on the part of the prosecutor/judge even more difficult to do—since in those cases where the defendant is truly guilty, there is really no defense for his/her actions—and they most assuredly deserve any/all punishments. But what about those cases where the defendant is truly innocent, and only a trial will clear their name? Don't these people deserve a fair/honest trial?

The nature of this case seems to be coloring some people's points-of-view towards giving Boyarsky a pass, no matter what he did. Not a good thing for any community's view of justice, and their collective expectations of the people in their employ to administer justice to that community.


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Posted by Hmmm
a resident of East Palo Alto
on Dec 30, 2012 at 1:05 pm

Wondering's comments are spot on. You also simply can't compare a prosecutor being called to task for mistakes to the public's view on a criminal. It's not like the defendant walked & has since been roaming around molesting kids. So just stop acting like those of us criticizing this prosecutor are on the side of the defendant or that the prosecutor should get away w/his numerous, repeated mistakes.

What about the personally & politically motivated comments SUPPORTING Boyarsky? SC Co. DA's office has gotten into a lot of trouble for mistake-laden prosecutions, which have resulted in a whole array of problems. The public does NOT need that. Thankfully, there is a near-brilliant prosecutor there who has handled a lot of very difficult sex offender cases, but it's not this guy. Prosecutors need to do a good enough job that they can't be as easily criticized. We can't risk the guilty going free when they're a danger, due to prosecutorial misconduct. The judge & Boyarsky blew it w/this defendant.


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