From the smallest HR department to Harvard Business School, management experts warn there are pitfalls as well as rewards in hiring a close friend -- especially if the buddy screws up.
Now, a top law enforcement official in the South Bay is struggling with that exact predicament. District Attorney Jeff Rosen must decide whether to discipline his best friend, Jay Boyarsky -- whom he promoted to the office's No. 2 spot -- after an appellate court recently slammed Boyarsky for engaging in a "pervasive pattern of misconduct" in a trial.
What makes the situation even tougher is Rosen has fulfilled his promise to crack down on overzealous prosecutors, punishing errant government attorneys despite objections from their union. All eyes are upon him, as he tries to avoid favoritism toward Boyarsky while not being unduly harsh to curry public favor.
"He clearly is in a difficult position," said Denis G. Arnold, editor of the Business Ethics Quarterly. "There's probably not one correct disciplinary action. But he has to show consistency."
To reduce the apparent conflict of interest, Rosen said he will consult unnamed people outside the office about his best course of action. However, Rosen has also laid the groundwork for taking no action, saying formal discipline is rarely warranted for someone who makes an "unintentional mistake" for which they take responsibility. Boyarsky has said he argued the case in question in "good faith" but would
"Once I finish my evaluation," Rosen said in an email after the opinion was published late last month, "I will treat the chief assistant the same way I treat any other prosecutor accused of misconduct and discipline him, if that is warranted."
With the legal community abuzz about the issue -- including whether Boyarsky's conduct was deliberate or inadvertent -- four former prosecutors from outside the county were asked to assess the prosecutor's conduct and suggest how they would proceed.
All of them agreed with the appellate court: Boyarsky committed misconduct.
"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."
The appellate court said Boyarsky erred by using deceptive or reprehensible means of persuasion -- including asking improper questions and making improper arguments and comments -- to the point where the defendant was denied a fair trial in a close case.
But the former prosecutors, all considered experts in legal ethics, distinguished Boyarsky's conduct from far worse behavior by prosecutors in this county and elsewhere -- including lying, abuse of authority and concealing evidence.
If Rosen does decide to discipline Boyarsky, he has a range of options under the county's civil service rules: verbal or written counseling, written reprimand, suspension without pay for up to 30 days, demotion (to any level, including back to deputy district attorney) and dismissal. Boyarsky would have the right to appeal any suspension, demotion or dismissal to the county Personnel Board.
The brouhaha stems from a civil court hearing in Santa Clara County prosecuted by Boyarsky in which Dariel Shazier was involuntarily committed to a state mental hospital on the grounds that he was a sexually violent predator. The effort to commit him came after he served more than nine years in prison for molesting teenage boys.
In a scathing, published opinion, the Sixth District Court of Appeal threw out the jury's verdict. The state Attorney General's Office this week appealed the decision to the state Supreme Court, arguing it sets a "profoundly disruptive" precedent for the prosecution of sexually violent predators statewide.
In one of the seven main examples cited by the justices, Boyarsky insinuated that jurors would have a hard time explaining their decision to friends, neighbors and co-workers if they didn't commit Shazier. Branding that "flagrant misconduct," the justices noted scornfully that public opinion has not been a proper consideration for a jury "since the time of ancient Greece."
Boyarsky also implied that Shazier had molested other teenage boys but never had been caught. The justices called that a "deliberate misstatement of the evidence intended to mislead the jury."
The prosecutor also improperly argued that the defendant was trying to "groom" or manipulate the jury the way he did his victims, prompting the court's most acid comment: "The irony here is that the prosecutor's conduct toward the jury throughout this trial closely fit (the) definition of grooming."
It was the third time the case foundered. The jury hung in the first trial. The second attempt, by now-disgraced former prosecutor Ben Field, was also reversed on the grounds of prosecutorial misconduct -- raising questions about why the DA's office didn't take extra pains to avoid misconduct in the third trial.
Boyarsky may have been emboldened by the trial judge, the now-retired Alfonso Fernandez. The justices criticized the former Santa Clara County prosecutor for constantly siding with Boyarsky over the defense attorney's objections. Fernandez declined to comment.
"This case is more about bad judging (by the trial judge) and bad prosecuting than it is venal (corrupt) judging or venal prosecuting," said Fordham law school professor Bruce Green, a former federal prosecutor and legal ethicist. He said the embarrassment generated by the opinion may be punishment enough.
But former prosecutor Bennett L. Gershman, an ethics specialist at New York's Pace Law School, said some form of discipline is warranted.
"As far as misconduct involving oratory, on a scale of 1 to 10, 10 being the worst, this was a 10," Gershman said. "I think he sets a bad example."
The Shazier appeal was filed after Rosen appointed Boyarsky two years ago as his right-hand man. The job of chief deputy is loosely akin to that of White House chief of staff, a trusted adviser who manages the day-to-day operation of the office.
Laurie Levenson, a Loyola University law professor and former prosecutor, said it's unclear whether the "poor judgment" Boyarsky exhibited in the Shazier case will spill over into other domains.
"Does this mean he won't exercise good judgment on other matters?" she said. "That is the real question."
But Levenson said she believes in rehabilitating most prosecutors, not "junking" them. She urged Rosen to seize the opportunity to use the ruling in a training class as an example of what not to do, rather than just coach Boyarsky privately.
"Rosen needs to send the message that it doesn't matter if you're No. 2 in the office or a new line prosecutor," she said. "Arguments should be zealous but within bounds."
Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.