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San Diego Union Tribune

Murder charges against Boysen are dropped

Judge: Prosecution took too long to file in the 1980 case By Jose Luis Jimenez

STAFF WRITER

May 26, 2005

VISTA - Double-murder charges against a Fallbrook man accused of killing his parents 25 years ago were dismissed yesterday by a judge who ruled the lengthy delay in filing the case violated his constitutional right to a fair trial.

Superior Court Judge Joan Weber's decision handed defense attorneys a rare victory and resulted in David Andrew Boysen, 48, being released yesterday afternoon from the Vista jail, where he had been held since his arrest May 26, 2004. He had faced a possible sentence of life in prison without parole.

Citing a review of existing and new evidence, prosecutors charged the son with the shooting and beating deaths of Robert and Elsie Boysen in their Oceanside home Easter Sunday, April 6, 1980.

Weber said the passage of time prejudiced Boysen's ability to mount a defense in a case where there was an "incomplete initial investigation" by Oceanside police.

The judge then weighed whether that prejudice to Boysen's constitutional right to a fair trial outweighed prosecutors' justification in charging him.

In a 12-page decision, she concluded Boysen's rights trumped law enforcement's justification and ordered his immediate release.

"There is no forensic evidence tying (Boysen) to this crime scene," Weber wrote. "There are no eyewitnesses to this brutal homicide. There are no confessions by (Boysen)."

She concluded: "To force (Boysen) to defend himself a quarter of a century after these crimes were committed would be legally unprecedented and an unjust denial of due process."

Deputy District Attorney Jeff Dusek, citing a gag order, declined to comment on the case.

Los Angeles County defense attorneys Steven Graff Levine and Danny Davis said the gag order no longer applied because the case was over. The lawyers said prosecutors could choose to appeal the decision, but were barred by recent case law from refiling murder charges.

"Judge Weber made a very well-informed and courageous opinion," Levine said.

His colleague Davis added: "My client was a scapegoat for a poor investigation in 1980. I trust the cold case unit will toughen up their selection process."

Police identified Boysen as a suspect shortly after the slayings, but prosecutors determined there was insufficient evidence to file charges at the time.

The case was reopened in January 2004 by the cold-case homicide unit of the District Attorney's Office, and Boysen was arrested in Los Angeles County, where he worked as an officer for a mortgage company.

Levine and Davis asked Weber to dismiss the case on the grounds that Boysen's Fifth and 14th Amendment rights were violated.

The judge heard three days of testimony in early May and reviewed hundreds of pages of legal filings before issuing the decision.

Weber cited four key issues in the case: the prejudice due to the lengthy delay; whether the delay was justified; balancing Boysen's rights against law enforcement's rationale for the delay; and whether she could issue her decision after the trial.

She specifically pointed to Boysen's inability to present evidence because key witnesses are dead. Two next-door neighbors of the parents - one who heard a gunshot and another who heard the engine of a small car between 10:30 p.m. and midnight the night of the slayings - would bolster Boysen's defense that he was at his home with his wife by 10:30 p.m., she wrote.

Weber also cited another possible witness, David Hobbs, because he had threatened to kill the parents. Hobbs, who died in 1994, could have been presented to the jury as an alternate suspect had charges been filed sooner.

Also, the judge said, Oceanside police detectives in 1980 failed to collect evidence from the crime scene that could have helped Boysen's defense. Police failed to look for fingerprints on a briefcase the parents were known to carry money in and the screen on the bathroom window where police theorized the killer entered the home.

Weber ruled the delay in filing charges could not be justified. She said the new evidence cited - that several fingerprints found at the bathroom window belonged to a police officer - ignored the fact that a pair of experts testified that two other fingerprints still remained unidentified.

"(The prosecution's) only real justification for the delay is based on the DA's cold-case unit taking a fresh look at unsolved homicides," Weber wrote. "Little, if any, weight should be given to this justification for this extraordinarily long delay."

The judge also rejected Dusek's arguments that the case was strong enough for a jury to decide and that her ruling should be delayed until after the trial if Boysen was convicted.

Given the absence of new evidence such as DNA, "the crux of the case" was the testimony of Boysen's ex-wife during a court hearing last year that contradicted his story of being home when the crime occurred, the judge wrote. Because the conversations occurred while they were married, Boysen may have had the right to keep them private, she wrote

 _______

 

Court rules dismissal of Oceanside murder case was correct

By Scott Marshall

SAN DIEGO -- A Superior Court judge in Vista was correct when she threw out murder charges against a Fallbrook man accused of killing his parents more than 25 years ago in their Oceanside home, a state appeals court ruled Tuesday.

Robert Boysen, 56, and Elsie Boysen, 51, were found dead on April 7, 1980, in their Avocado Road home, but 24 years passed before their only son, David Andrew Boysen, was charged with murder.

The delay was so long, the court concluded Tuesday, that key witnesses have died, memories have faded, and changes in the investigation have made it impossible for Boysen to defend himself.

Boysen and his attorneys are "very relieved" at the appeals court decision, said Steven Graff Levine, an attorney who represented Boysen in his appeal.

"David has maintained his innocence for 25 years," Levine said. "These charges were a great burden on him and his family and because of the delay, were impossible to defend."

David Boysen and his wife, Esther, could not be reached Tuesday for comment.

Some of David Boysen's relatives said they believe he is responsible for the deaths of his parents and expressed disappointment about Tuesday's ruling.

"I just wish they could have a trial and let it all come out and let a jury make the decision," Boysen's sister, Jeanette Fitzgerald, said in a telephone interview Tuesday. "I just don't understand what prevents it."

David Boysen's uncle, Chuck Morse, said in a telephone interview that he believes enough evidence exists to pursue the case.

"It will be interesting when he has to face the final judge," Morse said. "His mother and father will be standing there." Although state law does not require that murder charges be filed within a specific period of time, problems related to the long delay in Boysen's case led a Superior Court judge to dismiss the charges in 2005, prompting prosecutors to appeal.

A three-judge panel of the appeals court in San Diego concluded Tuesday that the 24-year delay in bringing charges against David Boysen resulted in a prejudice against him. The appeals court also described the reasons prosecutors gave to justify the delay as "unconvincing."

Prosecutors declined to file charges against David Boysen in 1982, but filed a case against him in 2004, after the district attorney's office created a new unit to look into old, unsolved homicides.

Deputy District Attorney James Atkins, who worked on the appeal, said that he was busy working on other matters and would not be able to review and comment Tuesday on the appeals court ruling.

After officials in the district attorney's office have read the appeals court's written opinion, they will decide whether to ask the court to reconsider or ask the state Supreme Court to hear the case, Atkins said.

Police investigating the Boysen slayings in the early 1980s looked into multiple possible suspects. According to the appeals court's 27-page decision, they included a man who allegedly was bitter about an altercation he had with a woman who worked for Robert and Elsie Boysen at a Christian bookstore they owned. The suspect list also included a man who was alleged to have bragged about being involved in the shootings and a theory that Mexican drug traffickers killed the couple, who had made Christian missionary trips to Mexico.

Police knew then that David Boysen had serious financial problems, and by the end of 1981, he was the focus of the investigation, the opinion stated.

Police submitted a case against David Boysen in 1982 to the district attorney's office, which declined to prosecute him. A detective has testified that one reason prosecutors rejected the case was because much of the evidence against Boysen was from statements made by Boysen's wife at the time. Her statements would be considered "privileged marital communications" that could not be used against him in court, the detective said.

In 2004, the investigation of the Boysen slayings was revived and David Boysen was charged with murdering his parents.

By that time, the neighbor who said she had heard a gunshot at 11:15 p.m. the night of the killings had died. Another neighbor who had reported hearing a small car engine about 11:30 p.m. that night died in 1994. One of the other possible suspects police looked at in the 1980s also had died in 1998, the opinion stated.

Superior Court Judge Joan Weber granted a defense request to dismiss the charges in 2005, saying that requiring Boysen to defend himself "with dead alibi witnesses, incomplete third-party culpability evidence and inadequate initial investigation by law enforcement would be legally unprecedented and an unjust denial of due process."

-- Staff writer Teri Figueroa contributed to this story. Contact staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com

 

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