In late December, the California Court of Appeal issued an opinion that reversed a 2010 finding that an inmate was a sexully violent predator.   The court based their decision on findings of prosecutorial misconduct by Santa Clara County prosecutor Jay Boyarsky.  However, the current controversy facing Santa Clara District Attorney Jeff Rosen is not the merits of the court’s decision, but how to discipline Boyarsky.  Boyarsky is not only the No. 2 person in the district attorney’s office but he is also Rosen’s best friend.   In addition, Rosen was elected to office based on an ethics platform.

Boyarsky’s problems stems from the county’s efforts to involuntarily commit Dariel Shazier in a state mental hospital as sexually violent predator.  When Shazier had completed his prison sentence for sexually assaulting minors, it took the county three trials to involuntarily commit Shazier.  At the third trial, the court of appeal found that Boyarsky erred by asking improper questions of the witnesses that led to inflammatory answers and by making improper arguments to the jury. “This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct,” [Judge] Rushing wrote. “Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comment and argument throughout the entire trial.”

In 2010, Rosen defeated the standing District Attorney by highlighting the ethics problems in the office.   After winning the election, the victor gave the following quote: “People really value high ethics and integrity in a DA,” Rosen said. “The experience that really mattered was my experience as a tough, fair prosecutor.”   Over the past two years in office, Rosen has followed through and disciplined district attorneys who were overzealous.

Everyone is now watching to see what Rosen will do with his friend’s case.  Rosen is in a tough position.  Any disciplinary action, regardless of its severity, can subject Rosen to claims of favoritism.  Rosen has said formal discipline is not warranted for someone who makes an “unintentional mistake” and they take responsibility.   In this case, Boyarsky said that while he prosecuted the case in good faith, he would do things differently if given the opportunity.

One former prosecutor urges Rosen to take action that sends a message.  “This is fairly artful prosecution — it wasn’t just a one-line mistake,” said former state Attorney General John Van de Kamp, who was chairman of the former state Commission on the Fair Administration of Justice. “The DA should clearly take some kind of corrective action to make sure it doesn’t happen again and the office understands that.”

Rosen needs to show the public, his supporters, his critics, and his employees that no one will preferential treatment.  Boyarsky should be disciplined in line with similar cases.  Rosen might even want to take the step of recusing himself from the process to further show impartiality.  One thing is certain – Rosen must act swiftly and without hesitation.  The message he sends will either enhance or tarnish the rest of his term and his legacy.