Ruling finds DA's right-hand man committed misconduct

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The California Supreme court overturned the case which said, there was miconduct (below). See new decision HERE

1-9-2013 California:

SAN JOSE -- In a scathing opinion published Thursday, a state appellate court reversed a judgment against a felon accused of being a sexually violent predator, saying the prosecutor handling the case -- now District Attorney Jeff Rosen's right-hand man -- engaged in a "pervasive pattern'' of misconduct.

The misconduct finding against Chief Assistant District Attorney Jay Boyarsky is the first black mark against Rosen's administration since he took office two years ago on an ethics platform and appointed Boyarsky as his top assistant.

Rosen handled the situation Thursday with the same aplomb he demonstrated as a homicide prosecutor to defuse potential courtroom crises. Boyarsky, who is also Rosen's best friend, tried the case when he was a line prosecutor before Rosen came into office.

Court Opinion: Defendant Dariel Shazier appeals an involuntary civil commitment order adjudging him a sexually violent predator (SVP) under the Sexually Violent Predators Act (Act). (Welf. & Inst. Code, § 6600 et seq.) An SVP must have "a diagnosed mental disorder that makes [him] a danger to the health and safety of others in that it is likely that he ... will engage in sexually violent criminal behavior." (Welf. & Inst. Code, § 6600, subd. (a)(1), italics added.) All of the experts who testified in this trial agreed that defendant's diagnosis of hebephilia, an attraction to pubescent young men, is not included in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV), and "doesn't exist" as a mental disorder diagnosis. Moreover, all agreed that defendant did not demonstrate arousal by the use of force or violence in his sexual acts. From the outset, securing a civil commitment of defendant as an SVP, following his 1994 conviction, has been difficult for the prosecutor. Indeed, defendant's first trial resulted in a hung jury. We reversed the judgment in defendant's second trial, finding the prosecutor committed prejudicial misconduct during the trial. (People v. Shazier* (Cal.App.)1.) During the third trial in this case, the prosecutor told the jury in his closing argument that their finding for defendant would subject them to ignominy within their community, and that it was likely that defendant, who he described as a "prolific child molester," had other victims who had not reported his crimes. However, there was no evidence presented at trial that defendant had committed additional uncharged crimes against unknown victims. Defense counsel objected to the prosecutor's improper arguments and statements throughout trial; however, the court overruled all of these objections. We find the prosecutor committed misconduct in this case that prejudiced the defendant. The judgment must be reversed. ... ... ... In reviewing the record and considering the extent of the prosecutor's improper questions and arguments, we conclude that the prosecutor's improper conduct "`"so infected the trial with unfairness as to make the resulting conviction a denial of due process."'" (People v. Riggs, supra, 44 Cal.4th at p. 298.) Moreover, the aggregate prejudicial effect of the prosecutor's misconduct therefore requires reversal. DISPOSITION The judgment is reversed.4 ..To reader the rest of the court opinion: CLICK...

"We respect the court's decision," Rosen said. "Any prosecutor in my office may err, and when we do, we learn from it and improve."

The ruling, written by Conrad Rushing, the presiding judge of the 6th District Court of Appeal, stems from a civil court hearing in Santa Clara County in which Dariel Shazier was involuntarily committed to a state mental hospital on the grounds that he was a sexually violent predator.

Boyarsky erred by asking improper questions of the witnesses that elicited inflammatory answers and by making improper arguments to the jury, Rushing wrote. For instance, Boyarsky implied without offering any evidence that Shazier had molested other boys. The prosecutor also essentially asked jurors what their friends and family would think of them if they found Shazier wasn't a predator.

"This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct," Rushing wrote. "Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comment and argument throughout the entire trial."

Boyarsky said he accepts the court's ruling about his conduct, though he made his arguments in "good faith."

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

Although the ruling reverses the involuntary civil commitment order, Shazier will remain at Coalinga State Hospital while the case is pending. Rosen noted Shazier has a "serious history of sexually preying on young teenagers," and said his office will try him again if doctors conclude he is a predator. Under another scenario, the state Attorney General's Office could appeal the ruling to the state Supreme Court, which could strike down the appellate decision, allowing the involuntary commitment to a mental ...continued.. by Tracey Kaplan

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