Getting a judgment actually reversed for prosecutorial misconduct is rare. How about twice in the same case?
On Thursday, the Sixth District Court of Appeal took the Santa Clara County district attorney's office to the woodshed for a second time in the case of Dariel Shazier, an alleged sexually violent predator. In 2006, the appellate court threw out Shazier's commitment order as an SVP based on former prosecutor Benjamin Field's having deliberately violated an in limine motion barring the discussion of punishment.
The DA's office retried the case, again obtained a commitment order, and is now once again in flagrante reverso. This time Chief Assistant DA Jay Boyarsky, who tried the case when he was a line DA, is taking the blame. Sixth District PJ Conrad Rushing's opinion says he committed "flagrant misconduct" by warning jurors to think about how friends and acquaintances would react to an acquittal.
"Public opinion is not a proper consideration for a jury," Rushing wrote in People v. Shazier. "This reasoning has been condemned as faulty since the time of ancient Greece."
Boyarsky also implyied Shazier had committed other crimes and told jurors Shazier was "grooming" them the same way he did his child victims.
Boyarsky and District Attorney Jeff Rosen graciously told the San Jose Mercury News that they respect the court's decision. "Any prosecutor in my office may err," Rosen says in the Mercury News' detailed article, "and when we do, we learn from it and improve."
Judge Alfonso Fernandez's also took some heat, though not as much as Boyarsky, for his handling of the case. "We observe that not one of [defense] counsel's well-taken objections was sustained by the court," Rushing wrote. "The court erred in overruling these objections."