California Supreme Court

Aug.20,2014
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Santa Clara County prosecutor committed
misconduct, but verdict stands
A high-ranking Santa Clara County prosecutor is off the hook for what a lower court called a "pervasive
pattern" of misconduct at a sex offender's trial, the state Supreme Court unanimously ruled on Monday.

By Emily Green

Daily Journal Staff Writer

A high-ranking Santa Clara County prosecutor is off the hook for what a lower court called a "pervasive

pattern" of misconduct at a sex offender's trial, the state Suprem_e Court unanimously ruled on Monday.

The decision averted a retrial for Dariel Shazier, who was involuntary committed to a state mental hospital

after a jury concluded he was a "sexually violent predator."

A unanimous panel of the 6th District Court of Appeal reversed the judgment against Shazier, citing multiple

instances of misconduct by prosecutor Jay Boyarsky during the course of the trial. But the state Supreme

Court rejected as unfounded most of the examples cited by the court of appeal.

Boyarsky is second in command at the Santa Clara County district attorney's office.

The high court found Boyarsky had committed "one clear instance of misconduct" and another instance of

"arguable misconduct" but that his actions were ultimately harmless. People v. Shazier, DJDAR 11173.

The only instance of clear-cut prosecutorial transgression agreed on by both courts involved Boyarsky's
suggestion to jurors that they would have a hard time explaining to friends and neighbors why they didn't
commit Shazier.
Justice Conrad Rushing of the 6th District panel called that suggestion "flagrant misconduct" and wrote that
public opinion hasn't been a consideration for a jury "since the time of ancient Greece."
In contrast, Baxter said Boyarsky's statements were "improper," but ultimately offset by the trial judge's

instructions to jurors to not let public opinion or public feeling influence them.
The presumption, Baxter wrote, is that "jurors understand and follow their instructions."
The instance of "arguable misconduct" identified by the state high court involved Boyarsky's suggestion to the
jury that Shazier had molested other boys but simply was not caught.
The court of appeal described that as a "deliberate misstatement of the evidence intended to mislead the jury."
Baxter wrote it was "doubtful the prosecutor had a basis to imply" that Shazier had committed an unknown
number of additional crimes, but again concluded the error was harmless.
The case stems from 1994, when Shazier pied guilty to sodomy and oral sex against multiple victims under the
age of 17. He received a sentence of 17 years and eight months in prison.
Preceding his release in 2003, the district attorney sought to have him committed to a state mental hospital in
Coalinga on the grounds that he was a sexually violent predator.
The first trial ended with a hung jury. The second attempt was reversed, also on the grounds of prosecutorial
misconduct by another deputy district attorney.
Santa Clara County District Attorney Jeff Rosen said in a statement he was gratified by the state Supreme
Court's ruling and that Boyarsky has his "full confidence."
S
" hazier has abused, exploited and raped teenage boys over and over again. TheSupreme Court ruled that the

trial was fair. That is always our goal."

As for Boyarsky's misconduct, Rosen said, "What is essential given this difficult job is to freely acknowledge

mistakes when they happen and take responsibility for them. From the beginning, the prosecutor in this case

has done that."

DallasSacher, executive director of theSixth District Appellate Project, which helped representShazier in the

court of appeal, said the state high court's opinion is part of a bigger trend of courts overlooking prosecutorial

misconduct.

I
" t's an age old story that unless the appellate court reverses for misconduct, there is no incentive on the part

of the prosecutors to behave,"Sacher said.

I
" f you don't reverse for misconduct, there is no reason why they won't do it."

emily _green@dailyjournal.com

<!--Santa Clara County prosecutor committed misconduct, but verdict stands-->

#324414

Emily Green
DailyJournal Staff Writer