Mountain View Voice

News - January 4, 2013

Court rebukes assistant DA for misconduct

by Sue Dremann

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

The finding of misconduct, 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 after the man admitted performing sexual acts with teenage 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; the alleged misconduct 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 age 14, 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 the court's 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 it didn't commit Shazier, he would 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 jurors to consider what their friends and family would think if it returned a verdict of "not true."

The court found there was no difference between the 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, that their friends and neighbors will condemn them if they 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.

"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.

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 toward teenage 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 court's decision.

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

The DA's office might 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. A spokesman for that office could not be reached before press time.

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