Opinion Says Defendant’s Friendship With District Attorney, Chief Deputy Could Lead to Aggressive Prosecution
By a MetNews Staff Writer
The Sixth District Court of Appeal declared Friday that the Santa Clara District Attorney’s Office must be disqualified from the prosecution of a San Jose attorney and fundraiser on conspiracy and bribery charges, saying that his friendship with the district attorney and his chief assistant creates a conflict, and a “grave one.”
It was the defendant, Christopher Schumb, who brought the recusal motion, which was denied by Santa Clara Superior Court Judge Eric S. Geffon. Schumb is one of four who are charged with involvement in what the opinion, by Justice Adrienne Grover, described as a “quid pro quo scheme.”
Under it, contributors to the reelection campaign of Sheriff Laurie Smith were allegedly rewarded with hard-to-obtain concealed gun permits.
Schumb contended he could not get a fair trial because District Attorney Jeff Rosen and Chief Assistant District Attorney Jay Boyarsky are his pals.Rosen has said in a declaration that he was elected to office in 2010, Schumb “became a political supporter, helped raise money for my subsequent re-election campaigns, and gave me political advice.”
Schumb has indicated an intent to call both Rosen and Boyarsky as percipient and character witnesses at trial.
In explaining why a writ of prohibition must be issued, Grover said that under the facts, there is “a strong incentive for Rosen’s office to aggressively prosecute Schumb for two purposes, both to distance Rosen from any taint associated with reelection money raised by Schumb, and to avoid the appearance of favoritism toward a friend and campaign contributor.”
“On these facts, it is unlikely that Schumb would receive fair and impartial treatment if he is prosecuted by the Santa Clara County District Attorney’s Office.
“We respect that the threshold to disqualify an entire office is higher than that for an individual prosecutor, but nonetheless conclude that office-wide disqualification is required here. Significantly, the conflict involves Schumb’s friendship with the elected district attorney rather than with a line deputy or other staff member. And despite that conflict, Rosen and his chief assistant Boyarsky made absolutely no effort to create an ethical wall between them and the prosecuting deputies after learning Schumb was a suspect.”
The case is Schumb v. Superior Court, H048532.
Another defendant in the case is James Jensen, a Sheriff’s Department captain. He, too, sought recusal of the Santa Clara District Attorney’s Office.
In a separate opinion, Grover said there is no basis for granting relief. She wrote:
“As Jensen concedes, he has no personal relationship with Rosen or Boyarsky. Unlike Schumb, he will not be calling them as trial witnesses, and he has no history of fundraising for them. There is no conflict between Jensen and the district attorney’s office that would support disqualification. Severing Schumb’s prosecution from that of Jensen and the other codefendants will resolve any issues related to Schumb’s conflict with Rosen and Boyarsky and will remove any incentive for the prosecution to try the case more vigorously than the evidence merits.”
Jensen also complained that grand jury transcripts had been leaked to the press, accusing the District Attorney’s Office as being the source. Grover responded:
“It is clear…that San Jose Inside gained access to the grand jury transcripts at least four days before they were opened to the public, a serious concern given the importance of secrecy in grand jury proceedings. It remains a serious issue even though the practical impact of the access was limited because the transcripts became public four days after the first article was published. But Jensen provided only speculation to support his theory that the district attorney’s office was responsible for the leak. In opposition were declarations by four members of the district attorney’s office”
That case is Jensen v. Superior Court, H048548.
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