Prosecutorial bad acts must not be condoned

Former Santa Clara County deputy district attorney Benjamin Field
Ben Field
Jay Boyarsky
Jay Boyarsky

When Santa Clara County Deputy District attorney Ben Field was handed a four-year suspension from the practice of law after a State Bar finding of ethical misconduct, some have suggested the reprimand was too harsh.

Given the nature of the misconduct outlined in the case against Field, I believe a stronger case can be made that the punishment imposed is little more than a slap on the hand.

I had little contact with Field when I was a Santa Clara County Deputy public defender for more than 20 years, and until all of his appeals are exhausted I am unwilling to judge his conduct, since I was not a witness to any of it.

But for anyone who is guilty of the acts with which Field is charged, the four-year suspension is mild punishment indeed. If, as a result of intentional misconduct by a prosecutor, another human being was wrongfully punished or imprisoned, then disbarment is too light a sentence.

If I had my way we would have legislation that includes jail time or some equivalent punishment- many hours of volunteer work- for those whose intentional acts result in the wrongful imprisonment of another. The same standard and punishment should apply to prosecutors and defense attorneys.

Absent the potential for harsh punishment to deter intentional misconduct by an attorney that leads to wrongful convictions, we will continue to see more wrongful convictions and more lives destroyed.

Mercury News columnist Scott Herhold recently wrote a column (Feb.14) criticizing Field’s sentence as overreaching. I wonder if his position would hold if he or a close family member ended up wrongfully serving a long prison sentence or even a short one as result of intentional apparently flagrant and arrogantly championed misconduct.

Imagine the transgression in other fields. Would a young journalist, for example who engages in intentional and repeated plagiarism be tolerated by the Mercury News?

When I was sworn in as an attorney, I took an oath to uphold the Constitution – and there was no clause that suggested I could put that oath on hold when it was convenient, or when I felt the pressures of courtroom competition. When I passed the bar, I was never told I would be given a break for intentional court room dishonesty because I was new to the process.

Nor was I told it would be OK to deceive a judge because no one in the administration of my office would do anything about it. Regardless of how I perceive the public defender’s office in some cases – a plea bargaining factory that often results in miscarriages – or the district attorney’s, the office culture is no defense to an act of incompetence.

We are all attorneys, and the bar for misconduct that can result in wrongful conviction should not be lowered or removed because of a particular office culture.

The views expressed above were originally written by Aram James a retired Santa Clara County deputy public defender, and first appeared on February 20th, 2009 in the Mercury News.

We believe prosecutorial misconduct is in fact a growing national problem not unique to Santa Clara County. For this reason and in light of recent misconduct findings by appellate judge Conrad Rushing involving the misconduct of yet another Santa Clara County TOP district attorney Jay Boyarsky, and by republishing this article, we hope to continue the dialog thereby exposing the depth and “extent of using deceptive and unfair tactics to secure convictions” at any cost, by the unlawful criminal activities of prosecutors and defense attorneys alike.

Ben Field vs. Jay Boyarsky what’s the difference? You decide!

A closer look at the similarity of judicial findings. As a side note, Ben Field was ultimately disbarred from practicing law for four years. A California State Bar investigation remains to be seen on any disciplinary sanctions to be imposed on Jay Boyarsky’s recent misconduct behavior present or past.

Highlights of Judicial Findings in both cases.

Former Santa Clara County Prosecutor Ben Field

  • Field obtained a dental examination of a minor accused of sexual assault in violation of a court order. He was attempting to try the youth, who claimed to be 13, as an adult. A juvenile court judge suppressed the evidence obtained in the examination.
  • In a murder case, Field intentionally withheld a defendant’s statement favorable to co-defendants. As a result, the judge dismissed a 25-year gun enhancement against one of the co-defendants.
  • He made an improper closing argument in a sexually violent predator (SVP) case, which an appellate court described as “deceptive and reprehensible.” The court reversed a judgment committing the man as an SVP.
  • He intentionally withheld a witness’ statement that was favorable to the defense in a 2003 habeas corpus proceeding involving a sexual assault.The judge found that he committed a discovery violation.

Current Santa Clara County Chief Assistant District Attorney Jay Boyarsky’s – Prosecutorial Misconduct

  • Implying That Defendant Had Committed Other Crimes
  • Schools in Defendant’s Neighborhood if Released
  • Defendant Would Not be on Parole
  • Questioning of Defense Expert on Other SVP Trials
  • Argumentative questioning of Defense Witness
  • Telling Jury They Had Been “Groomed” by Defendant
  • Reference to Defense Witnesses as “Serial Rapists and Child molesters.”

The bottom line involving the current misconduct charges levied against Chief Assistant District Attorney Jay Boyarsky is whether or not he passes the misconduct standards for disbarment or sanctions as set-fourth by the California State Bar.

References – Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009


A New New Years Story!

aa-monument-to-top-onlyaaaWell, as the Holidays wind down and the new year begins, I find myself as usual “waxing philosophical.” I also find myself waxing the car. Yes, just thinking how the New Year will be now that I am pushing sixty and a third of my life is over. It’s time to review my life, take stock of my assets and purge my liabilities and, yes, take out the centennial and millennial garbage, not to mention the cat.

Yeah, time to make some new year’s resolutions. And to begin with, I think I have been too hard on my fellow man, woman and water fowl, but not the midgets as they have it hard enough and seem to be a happy lot already.

I will start by rethinking my personalized license plates and bumper stickers, as today the rear end of the auto is the official communication line of the real world. So, with this in mind, I will turn in my plates that say, “WAY2CLS” and “BCK OFF” (for the license plate reading impaired: “way too close” and “back off”), and replace them with one that says “PLATE” and on my other vehicle, “C OTHER PLT.” Then I will try to park them near each other as often as possible. On the Pinto, though, I’ll get one that just says, “GOTALIGHT”?

And I will stop complaining about some of the messages people put there, too. I saw a plate the other day, GBM213. What was that all about? I have no idea. I spent an hour trying to figure it out.
I will also remove those bumper stickers that say, “Gun aboard” and “Have ya killed anyone today?” I will replace them with something more positive like, “I need to change lanes . . . Please” and “If you can read this, you have good vision.”

I will refrain from referring to political leaders as blood sucking varmints, NAFTA weasels or bumbling graft taking geeks. I will remove other words from my vocabulary, too, like hooters, Armageddon, flap jacks, oh my golly, clam dip, and verbose, especially in reference to women, political candidates and Albanian Geese. I will replace them with funny words like ointment, condiments, utensils and thistle. I also like fruition a lot and porcelain.

There are a few ideas, inventions if you will, I have been working on, too, that I think humanity might thank me to give up on. For instance, the fish omelet. I don’t think the world is quite ready. I also think the back yard commode is a bit premature. I just thought that letting the sun shine were the sun don’t shine, surrounded by plants and flowers, would be quite nice on a sunny summer day and could double as a dog watering bowl or bird bath.

And I am finally going to give up on inventing a new letter for the alphabet. It’s been a long time since we had a new letter. What was it anyway? J? So, I’ve been trying to see what it would look like and I finally decided that whenever you pronounced it, you would have to move your thumb to your nose. It would be that sound you make when you sniff. It would look something like this “)^”and here is the first word I made with it! )^ugowamuorphis. And since every word needs a definition, to go with it:

)^ug-o-wam-u-orphis, v. old wise one who makes up new letters, words or gardening tools {from bill English {see bone head}. [Preprandial*]

*(Relating to time just before dinner.)

I will start paying more attention to the expiration dates on food and stop relying on my taste buds, especially when cooking for guests. And I will stop referring to my taste buds as “my buddies.”
I will strive to become what my parents always wanted me to be: someone else’s child. I will stop thinking of Porsches as small, noise and rattly, ‘53 Buick wannabees. And I will not buy a Woody and cover it with carpet.

When I pass the refrigerators at Sears, I will stop saying, “My icebox gives ice and water out of the door, but it didn’t come from the factory that way.” Unless my daughter is with me cause that would always make her laugh. Also, I will stop calling my refrigerator an icebox.

Yes, there are an awful lot of little things one can do to brighten the lives of others. But what about the plant world? I could stop driving over the lawn and start watering it more. And why cut it? Do we think that plant life likes to be cut with a 3 ½ horsepower modified fuel-injected Brigs and Stratton killing machine?

At the supermarket, I will refrain from squeezing the tomatoes and avocados so hard and avoid squeezing the watermelons altogether. And I have a hodgepodge of other improvements, too. If someone asks me an intelligent question, I will try to answer it instead of saying, “Well, if I knew the answer to that, I’d be president.” And while we’re on it, if I’m chosen to be a candidate for president, I will not run.

Just want to make that perfectly clear. On major holidays, I will make sure the turkey is dead before putting it in the oven. And I will no longer use the word hodgepodge either, accept for just a little while ago.

I will also strive to learn the difference between certain words, like accept and except, where and were, and to, too, two and 2 ‘cause it’s really two bad I haven’t learnt the difference yet. I will stop saying, “The check is in the mail” — unless it really is or I just don’t have any money or I am out of stamps.
You know, the world can be made a better place if we all just try a little harder, pay our bills on time, let others change lanes and realize our neighbors may have as many problems as ourselves … but more and bigger guns.

But, the biggest change I plan to make, though, will be when I drive through Donner Pass. I will stop thinking about food, even though Donner sounds a lot like dinner to me. And if I can follow through with these resolutions, who knows, perhaps next New Year’s Eve I won’t be spending it at home all alone again, thinking about the last hooter, uh, I mean babe….uh, well, person of the female persuasion who just dumped me . . .again. ^(orth!

The End