January 5, 2013

SVP verdict overturned for prosecutorial misconduct -- again

Prosecutor impugned defense witness in hebephilia case

In a highly unusual development, a California appeals court has overturned the civil commitment of a convicted sex offender for the second time in a row due to egregious prosecutorial misconduct.

The prosecutor in the most recent trial engaged in a "pervasive pattern" of misconduct and "flagrantly" violated the law by implying that jurors would become social pariahs if they did not vote to civilly commit sex offender Dariel Shazier, the appellate court wrote.

Prosecutor Jay Boyarsky, now the second in command of the district attorney's office in Santa Clara County (San Jose), also improperly impugned the reputation of the forensic psychologist who testified for the defense, according to the scathing opinion by the Sixth District Court of Appeal.
Prosecutor Jay Boyarsky
"This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct. Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comments and argument, throughout the entire trial, each one building on the next, to such a degree as to undermine the fairness of the proceedings. The misconduct culminated in the prosecutor flagrantly violating the law in closing argument, telling the jury to consider the reaction of their friends and family to their verdict, implying they would be subject to ridicule and condemnation if they found in favor of defendant."
This was the second civil commitment verdict against Dariel Shazier to be overturned on appeal due to prosecutorial misconduct. The license of the previous prosecutor, Benjamin Field, was suspended in 2010 based on his severe misconduct in several cases, including Shazier's 2006 trial. In the first of Shazier's three trials, a jury deadlocked as to whether the convicted sex offender qualified for civil detention as a sexually violent predator.

The case revolves around the controversial diagnosis of hebephilia. Shazier served nine years in prison for sexual misconduct with teenage boys. At the end of his sentence, in 2003, the district attorney began efforts to commit him indefinitely to a locked hospital based on his risk of reoffense. At Shazier's most recent trial, two state evaluators testified that he suffered from hebephilia, thereby making him eligible for civil commitment. However, they admitted that hebephilia was highly controversial and had only come into vogue with the advent of civil commitment laws.

Incendiary questioning of defense expert witness

The appellate court chastised the prosecutor for stepping far over the line in his questioning of a psychologist who was called by the defense to rebut the diagnosis of hebephilia. Psychologist Ted Donaldson testified that hebephilia is not a legitimate mental disorder, and that socially unacceptable or immoral conduct does not constitute a mental illness.

On cross-examination, Boyarsky questioned Donaldson about previous cases in which he had testified that sex offenders were not mentally disordered. Naturally, Donaldson had not brought the files from all of his old cases to court with him. This, the appellate court wrote, gave the prosecutor an excuse to recite inflammatory facts from select cases, which the defense correctly complained "were only brought up to incite the passions and prejudice of the jury."

The appellate court also chastised Boyarsky for impugning Donaldson's character. In his closing argument, the prosecutor described Donaldson as "completely biased and not helpful," called his opinion "laughable," and implied that he was biased because he had repeatedly testified for the defense:
"He has got a streak that would make Cal Ripken jealous. Cal Ripken the baseball player and the Iron Man that played in something like 4,000 straight games. Dr. Donaldson’s streak of 289 straight times testifying exclusively for the defense. Now he would like to tell you that is not his fault, because he offered to teach the State of California all his wisdom. His brilliance has yet to be fully appreciated by this society. It is appreciated by defense attorneys who pay him...."
Boyarsky also improperly attacked a psychiatric technician at Atascadero State Hospital (where Shazier was undergoing sex offender treatment while awaiting the outcome of his case) who testified for the defense. The appellate court critiqued "rhetorical attempts to degrade and disparage" that witness during cross-examination. The justices highlighted Boyarsky's question: "Mr. Ross, you don't know what you’re talking about, do you?"
"Here, the prosecutor’s questioning … was clearly argumentative, and was not intended to glean relevant information. 'An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable. . . . An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.'(People v. Chatman (2006) 38 Cal.4th 344, 384.)"
The appellate opinion strongly rebuked trial judge Alfonso Fernandez for overruling repeated objections by defense attorney Patrick Hoopes. "Defense counsel objected to all of the prosecutor's improper questions, statements and arguments. We observe that not one of counsel's well-taken objections was sustained by the court. The court erred in overruling these objections."

Who’s grooming who?

In a humorous twist, Boyarsky was also reprimanded for misusing the loaded term "grooming" during his closing argument.

During the trial, a government expert had testified that Shazier "groomed" his victims by slowly manipulating them into situations in which he could violate sexual boundaries with them.

The prosecutor tagged off this in his closing argument, warning the jury that Shazier had "groomed" them during his testimony. "The grooming behavior, the manipulation, it still continues," Boyarski stated.

The appellate court agreed with the defense that this statement was "intended to inflame the jury, making them each feel like victims in the case." The justices went even further, noting that Shazier was not necessarily the one doing the grooming:
"During trial, Dr. Murphy defined grooming as a 'slow, steady manipulation to get a person in a compromising position or violate boundaries without awareness.' The irony here is that the prosecutor's conduct toward the jury throughout the trial closely fit Dr. Murphy's definition of grooming."

The unanimous appellate ruling is HERE. San Jose Mercury News coverage is HERE; the San Francisco Chronicle's, HERE.


researcherone said...

Interesting, not that I'm surprised. Apparently, this guy prefers to employ questionable tactics to achieve a win in his court cases. Perhaps he possibly knew the shaky nature of 'hebephilia'?

The bias of defense witnesses?? What about the witnesses of the prosecution? No, of course not--THOSE witnesses are naturally on the level and ALWAYS reliable, right?

By the way, Karen, what is the defendent's current status? He was in Atascadero State Hospital awaiting the outcome. The case was overturned due to prosecutorial misconduct. How does that change Shazier's situation?

Of course, all of this seems moot now, since Shazier is already in a state hospital undergoing standard (preventive?) treatment. I presume the case was to determine whether or not his stay would be extended and/or his treatment more focally specified?


Karen Franklin, Ph.D. said...

I believe he is now at Coalinga state Hospital, not Atascadero. Some of the individuals at Coalinga have been committed as sexually violent predators (SVP's). Others are there awaiting their civil commitment trials, after having finished their criminal sentences in state prison. Shazier's status was that he had been civilly committed, but his commitment was on appeal. Winning his appeal does not grant him automatic release. He will remain hospitalized pending a decision by the District Attorney's Office on whether to try him again. Also, the Attorney General's Office could appeal this opinion to the California Supreme Court; if the state high court took the case and overruled the appellate court, his commitment would be reinstated. If no appeal is filed, and the DA decides not to try him again, then he would have to be released.

researcherone said...

Ah, okay. Thanks for the brief. I thought the civil commitment determination ran simultaneously with the criminal trial. After all, the status/existence of a diagnosis would directly play into/affect criminal guilt and the subsequent sentencing, at least with regard to SVP cases, no? Still, I can see why criminal proceedings and psycho-pathological evaluation would each be tried separately.

In any case, from what I have heard regarding California courts, especially in the day and age of "predator panic," Shazier's future looks somewhat bleak.


researcherone said...

>>the district attorney began efforts to commit him indefinitely to a locked hospital based on his risk of reoffense<<

Ah, this is different than the initial psychological evaluation, and I can see how time in prison might reduce the possibility of reoffense. Still, it seems unlikely that the state government and court system, both of which persisted to put him away in the first place, would let this man go free without a fight. Apparently, these entities automatically believe, or assume, that all SVP cases bear a high rate of recidivism, despite expert testimony to the contrary. Any trial would appear to be nothing more than a facade to make things look fair an unbaised, even with the involvement of a jury. In short: the powers that be will find some legitimate reason to keep him locked up, regardless of jury deliberation, and make it stick.