State Supreme Court rejects most misconduct claims against assistant DA

Jay Boyarsky accused in 2012 of handling sex offender's commitment case inappropriately

California Supreme Court justices have reversed a state appeals court ruling of egregious prosecutorial misconduct against Jay Boyarsky, Santa Clara County's chief assistant district attorney.

Boyarsky, a Palo Alto resident was castigated by the California Sixth Appellate District Court in December 2012 for alleged misconduct while handling a hospital commitment case against an admitted sexual predator, according to court documents.

But the Supreme Court on Aug. 18 found only one clear instance of misconduct -- that Boyarsky insinuated that jurors might anger family and friends if they did not find defendant Dariel Shazier to be a sexually violent predator. The justices said a second instance may have been improper when he implied there were additional, unreported sex crimes in the defendant's background.

But these incidents did not result in an unfair trial nor did they affect the outcome, the Supreme Court justices have determined. The single instance of misconduct and the additional possible instance in this case did not rise to the level of a federal constitutional violation, the seven justices wrote.

Shazier had pleaded guilty to multiple sexual assaults on minor boys and was sentenced to 17 years and eight months in prison in October 1994. He pleaded guilty to sodomy and oral copulation of a drugged or intoxicated 17-year-old victim, forcible sodomy of a 14-year-old boy and multiple counts of child molestation against boys ages 13 to 16.

After he completed his prison term, the district attorney's office sought three times to commit him to a psychiatric hospital, starting in 2003, under the state's Sexually Violent Predator Act. Prosecutors succeeded on the second and third tries. But the appeals court reversed the rulings in both cases, finding misconduct by prosecutors.

Boyarsky prosecuted the third case in 2010. An appellate court in December 2012 ruled Boyarsky's misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." The appeals court then reversed the lower court judgment that committed Shazier to a state hospital.

Under California's Sexually Violent Predator Act, persons serving prison terms may be referred for hospital commitment after they have finished their sentences on the grounds that they are sexually violent predators. The determination is made if they are diagnosed with a mental disorder that makes them a danger and if they are likely to engage in sexually violent behavior after their release. A person so designated can be confined to a psychiatric facility for an indeterminate period with annual reviews until they are found to no longer be a public threat, according to state law.

Shazier has a history of sexually assaulting underage boys dating to 1987, and he was first convicted of the crimes in 1988. Though he was paroled and promised not to commit further acts, he repeatedly committed additional sex crimes against boys ages 13 to 17 each time he was released from prison. He had at least 12 known victims, the Supreme Court justices noted.

The district attorney's first attempt to have him declared a sexually violent predator ended in a hung jury. Prosecutors tried again in 2005 and succeeded. But the appeals court threw out the verdict a year later after finding misconduct by prosecutor Benjamin Field. Field was disbarred in 2010 for four years for misconduct in multiple cases, according to court papers. The state Supreme Court dismissed a review of the case.

Under Boyarsky's prosecution in 2010, a jury found that Shazier was a sexually violent predator. The appeals court again overruled that determination in 2012, concluding that Shazier suffered cumulative prejudice from multiple instances of prosecutorial misconduct.

According to the appeals judges, Boyarsky committed misconduct in seven instances: suggesting during argument that jurors would face contempt in their communities and families unless they found Shazier to be a sexually violent predator; implying Shazier had committed other sex crimes that were not in evidence; noting during Shazier's cross-examination the proximity of schools to the defendant's mother's home (where Shazier planned to live) and arguing that Shazier would not be on parole if released; improperly questioning a defense expert about other sexually violent predator cases to which the witness had given testimony; telling the jury they were being "groomed" by Shazier and referring to defense witnesses as "serial rapists" and a "child molester."

Taken together, the incidents created an aggregate prejudicial effect and created such an unfair trial that it violated due process, the appellate judges ruled.

But the Supreme Court justices said Shazier's counsel forfeited any argument that Boyarsky's questions were improper. The attorney did not object to either the questions about the neighborhood where Shazier would live nor to the argument that Shazier would not be supervised if released.

Both the prosecution and defense devoted significant attention to Shazier's post-release plans, including the living arrangements and his strategies for avoiding new offenses, the justices noted. The defense did not object when Boyarsky recapped Shazier's sex-crime history.

The justices also found compelling evidence that Shazier was a sexually violent predator and was likely to commit further crimes. But hospital witness testimony stated that he had not committed any sexual acts while committed, and he had received therapy to help control his impulses.

The justices did find that Boyarsky committed misconduct when he suggested that jurors consider what their family and friends would think if they returned a verdict favoring Shazier. Commitment cases do not allow for arguments suggesting the consequences of a jury's verdict. However, the defense did not object, the justices noted.

Boyarsky also committed "arguable" misconduct when he implied there were additional, unreported crimes in Shazier's background.

But the justices did not find the statements prejudiced the case. There is no reasonable probability the jury would have reached a different verdict if the misconduct had not occurred, the justices added.

"In any event, neither claim of misconduct has merit," the court wrote.

The court's instruction in the context of a sexually violent predator trial, "cannot be construed to prevent the prosecutor from exploring whether a mentally disordered sex offender's release into the community might lead to his or her commission of new violent predatory sex offenses. By the (sexual predator act) terms, this is a critical and essential subject for the jury's consideration," the justices wrote.

The Supreme Court kicked back other defense arguments to the appeals court for further ruling. That court must decide whether the trial court erred when it told jurors the sexually violent predator commitment would not result in a life sentence. Shazier's attorney also claimed the provision allowing commitment for an indeterminate time violates state and federal due-process and equal protection guarantees. The appeals court must rule on that issue and others.

Boyarsky told the Weekly he was gratified by the justices' decision. The allegations had hurt him personally and professionally, he added.


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