News

Court rebukes Assistant DA Boyarsky for misconduct

Appeals judges find Palo Alto resident and DA's second-in-command handled sex offender's commitment case inappropriately

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 for misconduct while handling a hospital commitment case against a sexual predator, according to court documents.

The misconduct finding, which the California Sixth Appellate District Court termed "so infected the trial with unfairness as to make the resulting conviction a denial of due process," resulted in a reversal of a judgment that committed a man to a state hospital who admitted performing sexual acts with teenaged boys.

The court's decision comes one year and nine months after District Attorney Jeff Rosen announced a conviction-integrity unit in March 2011 to address a series of prosecutorial misconduct allegations against the office, which preceded his tenure. The unit was to set protocol to prevent future errors.

The Dec. 27 appeals-court ruling stems from two 1994 felony cases against Dariel Shazier, who pleaded guilty of sodomy with a minor under the age of 14 and sodomy with a minor under age 18 and oral copulation where the victim was unable to resist due to an intoxicating substance. He was sentenced to 17 years and 8 months in state prison.

But shortly before his release from prison, in April 2003, the DA's office filed a petition to commit Shazier to a state mental facility as a sexually violent predator under the Welfare and Institutions Code.

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The first commitment trial resulted in a hung jury. The jury in a second commitment trial in 2005 sent Shazier to a state mental hospital for two years.

But the verdict was overturned the following year by the appellate court after the prosecutor in that case, Benjamin Field, was found to have committed misconduct (Field was disbarred in 2010 for four years for misconduct in multiple cases).

The DA's office went forward with a third commitment trial against Shazier, this time with Boyarsky prosecuting. A jury found that Shazier met the criteria as a sexually violent predator after a 15-day trial, and he was committed for an indeterminate term. He again appealed.

In his Dec. 27 ruling, Presiding Judge Conrad Rushing wrote that Boyarsky asked improper questions of the witnesses, which elicited inflammatory answers, and he made improper arguments to the jury.

Commitment cases do not allow for arguments that suggest the consequences of a jury's verdict, the court noted. But Boyarsky implied those consequences when he implied to the jury that if they didn't commit Shazier, they would allow him to be free to commit other criminal acts out of state since he would not be on parole.

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Boyarsky also told jurors that schools and parks would be in proximity to Shazier's mother's home, where he would be living if released.

During his closing argument, Boyarsky asked the jury to consider what their friends and family would think if they returned a verdict of "not true."

The court found there was no difference between this proposal that jurors "have a conversation about the verdict with an imaginary friend explaining that their verdict unloosed a dangerous predator on the public" than saying directly, 'your friends and neighbors will condemn you if you release him,'" Rushing said.

Boyarsky also implied that Shazier had committed additional sex crimes for which he was not caught, yet the prosecution did not supply any evidence in support of those statements, the court noted.

"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 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.

"We find it is reasonably probable that defendant would have obtained a more favorable result absent the repeated incidents of improper conduct."

During the third trial, Shazier was diagnosed by two prosecution psychiatrists as having hebephilia, an attraction to teenage boys who had reached puberty. But experts for both sides admitted that hebephilia is a controversial diagnosis and doesn't exist as a diagnosis of mental illness in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV), the standard for mental disorder diagnosis.

A prosecution psychiatrist also admitted that Shazier was not aroused by violence or force, and that the only reason his prior crimes were considered non-consensual was because the victims were minors who could not legally consent.

A defense psychiatrist testified that a diagnosis of a mental disorder is not dependent on what is considered socially acceptable or moral.

He stated that homosexuality was removed from the DSM because it is no longer considered a mental disorder and that it was only included in the manual because of social view of morality at the time.

Many adult men are attracted to teenage young women, and while most do not act on the attraction, the fact that some men do does not necessarily mean they suffer from a mental disorder, the psychiatrist said.

Hospital-staff witnesses also testified that Shazier followed all of the rules while housed in the state hospital and participated willingly in all voluntary treatments. He did not display inappropriate sexual behavior towards teenaged boys housed with him, they said.

Boyarsky said on Friday that he accepts the court's decision.

"I made my arguments in good faith. Based on the court's opinion, if I had it to do over again, I would make my arguments differently. I accept the ruling," he said.

Rosen also said his office respects the judges' decision.

"Any prosecutor in my office may err, and when we do, we learn from it and improve," he said.

The DA's office would pursue another trial for commitment against Shazier, he added.

"Dariel Shazier has a serious history of sexually preying on young teenagers. Once his case is sent back to our court for a new trial, we will seek updated evaluations by state-appointed doctors to evaluate whether he continues to be a sexually violent predator. If so, we will try him again to ensure that he remains in a locked psychiatric facility," Rosen said.

Rushing said in the court ruling that prosecutors are held to a higher standard than other attorneys because of the function they perform of representing the state. The government has an obligation to be impartial, Rushing noted.

Under the law, a prosecutor commits misconduct by "engaging in deceptive or reprehensible methods of persuasion," he wrote.

Prosecutorial misconduct often occurs during argument and may take a variety of forms, including: mischaracterizing or misstating the evidence, referring to facts not in evidence, misstating the law, attacking the integrity of the defense counsel, intimidating witnesses or referring to a prior conviction that was not before the jury, appealing to passions or prejudice such as asking the jury to view the crime through the victim's eyes or predicting that the defendant, if not found guilty, will commit future crimes, the court noted.

It remains unclear whether the California State Bar will take any action against Boyarsky. Sean Webby, a spokesman for the DA's office, said the state Attorney General's Office is acting as Boyarsky's counsel.

Shum Preston, spokesman for the attorney general's office, said the office is looking into whether to appeal the decision to the California Supreme Court. He could not comment on Boyarsky.

"We are reviewing the opinion to determine whether further action is warranted," he said.

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Sue Dremann is a veteran journalist who joined the Palo Alto Weekly in 2001. She is a breaking news and general assignment reporter who also covers the regional environmental, health and crime beats. Read more >>

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Court rebukes Assistant DA Boyarsky for misconduct

Appeals judges find Palo Alto resident and DA's second-in-command handled sex offender's commitment case inappropriately

by / Palo Alto Weekly

Uploaded: Fri, Dec 28, 2012, 5:28 pm
Updated: Mon, Dec 31, 2012, 8:49 am

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 for misconduct while handling a hospital commitment case against a sexual predator, according to court documents.

The misconduct finding, which the California Sixth Appellate District Court termed "so infected the trial with unfairness as to make the resulting conviction a denial of due process," resulted in a reversal of a judgment that committed a man to a state hospital who admitted performing sexual acts with teenaged boys.

The court's decision comes one year and nine months after District Attorney Jeff Rosen announced a conviction-integrity unit in March 2011 to address a series of prosecutorial misconduct allegations against the office, which preceded his tenure. The unit was to set protocol to prevent future errors.

The Dec. 27 appeals-court ruling stems from two 1994 felony cases against Dariel Shazier, who pleaded guilty of sodomy with a minor under the age of 14 and sodomy with a minor under age 18 and oral copulation where the victim was unable to resist due to an intoxicating substance. He was sentenced to 17 years and 8 months in state prison.

But shortly before his release from prison, in April 2003, the DA's office filed a petition to commit Shazier to a state mental facility as a sexually violent predator under the Welfare and Institutions Code.

The first commitment trial resulted in a hung jury. The jury in a second commitment trial in 2005 sent Shazier to a state mental hospital for two years.

But the verdict was overturned the following year by the appellate court after the prosecutor in that case, Benjamin Field, was found to have committed misconduct (Field was disbarred in 2010 for four years for misconduct in multiple cases).

The DA's office went forward with a third commitment trial against Shazier, this time with Boyarsky prosecuting. A jury found that Shazier met the criteria as a sexually violent predator after a 15-day trial, and he was committed for an indeterminate term. He again appealed.

In his Dec. 27 ruling, Presiding Judge Conrad Rushing wrote that Boyarsky asked improper questions of the witnesses, which elicited inflammatory answers, and he made improper arguments to the jury.

Commitment cases do not allow for arguments that suggest the consequences of a jury's verdict, the court noted. But Boyarsky implied those consequences when he implied to the jury that if they didn't commit Shazier, they would allow him to be free to commit other criminal acts out of state since he would not be on parole.

Boyarsky also told jurors that schools and parks would be in proximity to Shazier's mother's home, where he would be living if released.

During his closing argument, Boyarsky asked the jury to consider what their friends and family would think if they returned a verdict of "not true."

The court found there was no difference between this proposal that jurors "have a conversation about the verdict with an imaginary friend explaining that their verdict unloosed a dangerous predator on the public" than saying directly, 'your friends and neighbors will condemn you if you release him,'" Rushing said.

Boyarsky also implied that Shazier had committed additional sex crimes for which he was not caught, yet the prosecution did not supply any evidence in support of those statements, the court noted.

"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 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.

"We find it is reasonably probable that defendant would have obtained a more favorable result absent the repeated incidents of improper conduct."

During the third trial, Shazier was diagnosed by two prosecution psychiatrists as having hebephilia, an attraction to teenage boys who had reached puberty. But experts for both sides admitted that hebephilia is a controversial diagnosis and doesn't exist as a diagnosis of mental illness in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV), the standard for mental disorder diagnosis.

A prosecution psychiatrist also admitted that Shazier was not aroused by violence or force, and that the only reason his prior crimes were considered non-consensual was because the victims were minors who could not legally consent.

A defense psychiatrist testified that a diagnosis of a mental disorder is not dependent on what is considered socially acceptable or moral.

He stated that homosexuality was removed from the DSM because it is no longer considered a mental disorder and that it was only included in the manual because of social view of morality at the time.

Many adult men are attracted to teenage young women, and while most do not act on the attraction, the fact that some men do does not necessarily mean they suffer from a mental disorder, the psychiatrist said.

Hospital-staff witnesses also testified that Shazier followed all of the rules while housed in the state hospital and participated willingly in all voluntary treatments. He did not display inappropriate sexual behavior towards teenaged boys housed with him, they said.

Boyarsky said on Friday that he accepts the court's decision.

"I made my arguments in good faith. Based on the court's opinion, if I had it to do over again, I would make my arguments differently. I accept the ruling," he said.

Rosen also said his office respects the judges' decision.

"Any prosecutor in my office may err, and when we do, we learn from it and improve," he said.

The DA's office would pursue another trial for commitment against Shazier, he added.

"Dariel Shazier has a serious history of sexually preying on young teenagers. Once his case is sent back to our court for a new trial, we will seek updated evaluations by state-appointed doctors to evaluate whether he continues to be a sexually violent predator. If so, we will try him again to ensure that he remains in a locked psychiatric facility," Rosen said.

Rushing said in the court ruling that prosecutors are held to a higher standard than other attorneys because of the function they perform of representing the state. The government has an obligation to be impartial, Rushing noted.

Under the law, a prosecutor commits misconduct by "engaging in deceptive or reprehensible methods of persuasion," he wrote.

Prosecutorial misconduct often occurs during argument and may take a variety of forms, including: mischaracterizing or misstating the evidence, referring to facts not in evidence, misstating the law, attacking the integrity of the defense counsel, intimidating witnesses or referring to a prior conviction that was not before the jury, appealing to passions or prejudice such as asking the jury to view the crime through the victim's eyes or predicting that the defendant, if not found guilty, will commit future crimes, the court noted.

It remains unclear whether the California State Bar will take any action against Boyarsky. Sean Webby, a spokesman for the DA's office, said the state Attorney General's Office is acting as Boyarsky's counsel.

Shum Preston, spokesman for the attorney general's office, said the office is looking into whether to appeal the decision to the California Supreme Court. He could not comment on Boyarsky.

"We are reviewing the opinion to determine whether further action is warranted," he said.

Comments

Hmmm
East Palo Alto
on Dec 28, 2012 at 9:56 pm
Hmmm, 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!


Matt
Old Palo Alto
on Dec 28, 2012 at 11:03 pm
Matt, 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.


Hmmm
East Palo Alto
on Dec 29, 2012 at 12:04 am
Hmmm, 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.


Jon Foster
Duveneck/St. Francis
on Dec 29, 2012 at 11:12 am
Jon Foster, 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.


Hmmm
East Palo Alto
on Dec 29, 2012 at 12:58 pm
Hmmm, 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.


A little objectivity
Community Center
on Dec 29, 2012 at 3:47 pm
A little objectivity, 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?


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

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.


Hmmm
East Palo Alto
on Dec 29, 2012 at 8:00 pm
Hmmm, East Palo Alto
on Dec 29, 2012 at 8:00 pm

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


Wondering?
Another Palo Alto neighborhood
on Dec 29, 2012 at 8:22 pm
Wondering?, 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.


Protect our children
Evergreen Park
on Dec 30, 2012 at 12:53 am
Protect our children, 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.


Protect our children
Evergreen Park
on Dec 30, 2012 at 12:57 am
Protect our children, 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!


Antoine Dodson
another community
on Dec 30, 2012 at 4:31 am
Antoine Dodson, 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.


Wondering?
Another Palo Alto neighborhood
on Dec 30, 2012 at 8:23 am
Wondering?, 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.


Hmmm
East Palo Alto
on Dec 30, 2012 at 1:05 pm
Hmmm, 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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