California Supreme Court to Prosecute Santa Clara County Prosecutor Jay Boyarsky Maybe

The left hand knows what the right hand is doing?
In this case the left hand knew beyond all reasonable doubt what the right hand was doing.

Santa Clara County District Attorney Jeff Rosen’s right-hand man won’t be punished yet if at all for “Flagrant misconduct” in the sentencing of a convicted sexual predator now that the California Supreme Court has agreed to hear the case.

The Supreme Court excepted the case after a court of appeal ruled that Chief Assistant District Attorney Jay Boyarsky engaged in a “pervasive pattern of misconduct”.

Ran the Palo Alto office

Boyarsky ran the DA’s North County office in Palo Alto for six years and is now the No. 2 in the DA’s office in San Jose.

He asked inappropriate questions and made improper arguments during the third psychiatric commitment hearing of Dariel Shazier, who was convicted in 1994 of performing sexual acts with teenage boys, a California appeals court ruled in December.

It was the second time Shazier’s sentencing had been reversed due to prosecutorial misconduct.

In his ruling, Judge Conrad Rushing blasted Boyarsky for asking jurors how they would tell friends, family and neighbors that they were responsible for freeing “a prolific child molester.”

Rosen told the Post (they won’t speak to us) that the state Attorneys General’s Office didn’t agree with the lower court’s ruling and decided to appeal to the higher court, which agreed in April to hear the case.

AG’s office fires back

The court of appeal “distorted the substantive standard for misconduct claims by ignoring material facts in order to infer the most damaging inference from the prosecutor’s comments,” Deputy Attorney General Bridget Billeter wrote in her petition to the Supreme Court.

The misconduct accusations against Boyarsky rose in 2010, shortly after Rosen was elected on a platform of tightening legal ethics in the office.

The Attorney General’s Office filed its final written argument on Aug.1 and the high court could rule within the next few months.

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2 Replies to “California Supreme Court to Prosecute Santa Clara County Prosecutor Jay Boyarsky Maybe”

  1. 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.

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