When the Sixth District Court of Appeal found “flagrant” prosecutorial misconduct in the case of Daniel Shazier last December, the Santa Clara County district attorney’s office was contrite.
"Based on the court's opinion, if I had it to do over again, I would make my arguments differently,” Chief Assistant DA Jay Boyarsky told the San Jose Mercury News at the time.
But the California attorney general’s office, which is prosecuting the appeal, didn’t have the same misgivings. Nor may the California Supreme Court, which granted the AG’s petition for review this week by a 4-3 vote.
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.
So it was surprising when the Sixth District called out Boyarsky for a sexually violent predator case he tried just before becoming chief assistant. In People v. Shazier, Presiding Justice Conrad Rushing faulted him for asking jurors how they would explain to friends and neighbors letting loose "a prolific child molester," and warning jurors that Shazier was “grooming” them the way he did his victims.
It was the second time the Sixth District had reversed Shazier's civil commitment due to prosecutorial misconduct.
Rosen and Boyarsky sounded ready to turn the page and try the case anew. "Any prosecutor in my office may err," Rosen told the Mercury News, “and when we do, we learn from it and improve.”
But the AG’s office petitioned for review six weeks later, arguing that Shazier’s defense lawyer failed to object to “at least half” of the 10 instances of misconduct identified by the appellate court, and that Rushing had improperly construed "ambiguous comments” in the worst light possible.
For example, Boyarsky wasn’t necessarily trying to inflame juror passions by telling them they’d been groomed. “When read in context,” she wrote, “it is reasonable to infer that the prosecutor was using evidence that defendant had groomed and manipulated his victims to argue that defendant continued to be manipulative and was not truly amenable to voluntary treatment.”
Chief Justice Tani Cantil-Sakauye and Justices Marvin Baxter, Ming Chin and Carol Corrigan voted to review the case.