RECOMMENDED FOR FULL-TEXT PUBLICATION 12 Boyle v. Million No. 98-6485 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0009P (6th Cir.) File Name: 00a0009p.06 that the defendant himself, in a misguided play for power, personally inconvenienced each and every juror by forcing them to travel from a neighboring county for trial, and to play upon the defendant’s relative advantages in power, wealth, UNITED STATES COURT OF APPEALS and prestige could not help but prejudice the jury against the FOR THE SIXTH CIRCUIT defendant. We are thus compelled by Supreme Court _________________ precedent not to treat the errors as harmless, and to affirm the district court’s grant of a conditional writ of habeas corpus. ;  Thomas Osborne was asked to prosecute a criminal case CORNELIUS D. BOYLE,  that, on its merits, had a great likelihood of resulting in a Petitioner-Appellee,  felony conviction. Unfortunately, through grandstanding and

 a warped sense of courtroom decorum, he has succeeded only No. 98-6485 in making a mockery of constitutional principles and v.  protections and has forced the expenditure of additional time > and resources on a second trial in this matter. Despite these GEORGE MILLION, Warden,  costs, we have no hesitation in ordering appropriate habeas Respondent-Appellant.  corpus relief in an effort to rectify damage done in this case 1 and, we hope, to prevent similar travesties in the future. The judgment of the district court granting Boyle a conditional writ of habeas corpus is AFFIRMED. Appeal from the United States District Court for the Western District of Kentucky at Paducah. No. 97-00241—Edward H. Johnstone, District Judge. Submitted: September 24, 1999 Decided and Filed: January 7, 2000 Before: BOGGS and DAUGHTREY, Circuit Judges; DONALD,* District Judge. _________________ COUNSEL ON BRIEF: Samuel J. Floyd, Jr., OFFICE OF THE ATTORNEY GENERAL, CIVIL DIVISION, Frankfort,

* The Honorable Bernice B. Donald, United States District Judge for the Western District of Tennessee, sitting by designation.

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Kentucky, for Appellant. Timothy K. Newcomb, GRANT & “prosecutorial misconduct.” Furthermore, closing arguments NEWCOMB, Laramie, Wyoming, Maynard D. Grant, that appeal to class prejudices, encourage juror identification GRANT & NEWCOMB, Seattle, Washington, J. Fox with crime victims, or vouch for the defendant’s guilt would DeMoisey, DeMOISEY & SMITHER, Louisville, Kentucky, each be deemed beyond ethical bounds. To combine all three for Appellee. prejudicial ploys in one argument only compounds the error. _________________ We have little hesitation in concluding that the errors by the prosecutor in this case were flagrant. First, the statements OPINION made by Osborne throughout the trial were obviously _________________ intended to mislead the jury and prejudice the defendant. In fact, the start of the prosecution’s summation argument MARTHA CRAIG DAUGHTREY, Circuit Judge. contained outright lies likely intended to convince the jury Respondent George Million, the warden at Eastern Kentucky that a rich and powerful man, presumably with advantages not Correctional Center, appeals the decision of the district court shared by the jurors themselves, somehow manipulated the granting the petitioner, Cornelius Boyle, a conditional writ of judicial system for his own gain. Osborne knew that his habeas corpus based upon prosecutorial misconduct that statements intimating that the notoriety of the defendant and occurred during Boyle’s criminal trial. Before us, Million his prosecution forced the usual judge and prosecutor to contends that the writ was erroneously issued because it was recuse themselves from the case were incorrect and likely to based in part upon alleged prosecutorial misconduct during prejudice the jury against Boyle. Such contemptible behavior closing argument, a claim that the respondent insists was on the part of a public servant under an obligation to seek procedurally defaulted before the Kentucky state courts. We justice cannot be condoned. conclude, however, that the Kentucky appellate courts did not clearly and expressly base their denial of Boyle’s claims upon Second, the improprieties on the part of the prosecutor were procedural default rules. Consequently, the issue raised by not isolated, but rather infected all aspects of the trial. In light the petitioner was properly before the district court. of Osborne’s co-authorship of a handbook for trial lawyers Moreover, because “grave doubt” exists as to whether the that decried such tactics, moreover, it cannot reasonably be blatantly unethical prosecutorial conduct at Boyle’s trial had denied that the erroneous comments and statements were a substantial and injurious effect upon the jury’s decision, we deliberately placed before the jury. concur with the determination that such error cannot be deemed harmless. We thus affirm the district court’s grant of It is true that the case against Boyle was relatively the conditional writ of habeas corpus in this matter. straightforward and strong. Given the egregious and inflammatory nature of the behavior and arguments of the I. FACTUAL AND PROCEDURAL BACKGROUND prosecutor throughout trial, however, we are left with “grave doubt” as to whether the prosecutorial errors “had substantial The parties do not seriously dispute the relevant facts and injurious effect or influence in determining the jury’s underlying the petitioner’s conviction, appeals, and habeas verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) history. Boyle, an ophthalmologist, moved from Baltimore to (quoting Kotteakos v. United States, 328 U.S. 750, 776 Mayfield, Kentucky, in 1987 and established an initially (1946)); see also O’Neal v. McAninch, 513 U.S. 432, 436 successful practice. Sometime after he declined to join a rival (1995). In fact, the prosecutor’s efforts to equate the jurors medical group, however, a number of malpractice suits were with the defendant’s victim, to emphasize the mistaken idea 10 Boyle v. Million No. 98-6485 No. 98-6485 Boyle v. Million 3

reversal was not required.” Cornelius D. Boyle v. filed against him. Although he prevailed in most of them, his Commonwealth of Kentucky, No. 94-CA-1036-MR, slip op. reputation suffered and his practice collapsed. at 2 (Ky. Ct. App. Feb. 23, 1996) (emphasis added). Consequently, the state court of appeals itself did not interpret On July 1, 1990, Boyle became distraught and intoxicated its decision as one relying substantially on procedural default. after learning that Jean Ann Miller, a neighbor and his chief In such a situation, principles of comity and federalism office assistant, tendered her resignation in order to join the require that we defer to the state court’s determination of the practice of one of Boyle’s competitors. On that evening, basis of its decision and now engage in an examination of the Boyle telephoned Miller and her husband, threatened to kill merits of Boyle’s habeas corpus claim alleging prosecutorial them, and was later spotted in the Millers’ yard shooting a misconduct. shotgun toward the Millers’ residence. When another neighbor, Robert Pitman, armed himself and investigated the III. PROSECUTORIAL MISCONDUCT disturbance, he was injured by a shotgun blast from Boyle’s weapon. Despite his claim that severe intoxication obliterated In United States v. Carroll, 26 F.3d 1380 (6th Cir. 1994), his memory of the incident, Boyle was arrested and charged we summarized our recent jurisprudence on the issue of with first-degree assault, terroristic threatening, and resisting prosecutorial misconduct in an effort to provide guidance for arrest in regard to the incident. (The latter two charges were future cases and noted that, when addressing claims of eventually dismissed and were never presented to the jury.) prosecutorial misconduct, we first determine whether the challenged statements were indeed improper. See United Prior to trial, Richard Weisenberger, the regular prosecuting States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999). Upon a attorney for Graves County, successfully moved to substitute finding of such impropriety, we then “look to see if they were a special prosecutor for himself in the Boyle prosecution flagrant and warrant reversal.” Id. (citing Carroll, 26 F.3d at because Weisenberger had previously represented Boyle in an 1388). Flagrancy is determined by an examination of four unrelated civil action. Similarly, the judge who normally factors: “1) whether the statements tended to mislead the jury heard criminal cases in the district disqualified himself from or prejudice the defendant; 2) whether the statements were the case and was replaced by order of the Kentucky Supreme isolated or among a series of improper statements; 3) whether Court. Finally, due to the unusually large amount of pretrial the statements were deliberately or accidentally before the publicity generated by the case, the trial court granted a jury; and 4) the total strength of the evidence against the defense motion to select the jury from the citizenry of a accused.” Id. at 549-50. neighboring county. Without question, the challenged portions of the Boyle’s trial began innocently enough with Thomas prosecution’s cross-examination of Boyle, and almost all of Osborne serving as the special prosecutor in Weisenberger’s the government’s closing argument, were highly improper. stead. When Osborne began his cross-examination of While a prosecutor is clearly authorized to strike hard blows defendant Boyle, however, the code of ethics and civility that in an earnest and vigorous prosecution, he or she “is not at should undergird the legal profession began to take liberty to strike foul ones.” Berger v. United States, 295 U.S. devastating blow after blow. Immediately, Osborne launched 78, 88 (1935). Badgering and interrupting a witness, name- into theatrics. He prefaced his third question to Boyle with calling, predicting that the defendant will lie on the stand, and the query, “Now, that is an outright lie, isn’t it, Doctor?” stating before the jury that the defendant is in need of With the boost from that springboard, he then began psychiatric help are tactics so deplorable as to define the term badgering Boyle, interrupting his answers, and even going so 4 Boyle v. Million No. 98-6485 No. 98-6485 Boyle v. Million 9

far as to throw a deposition into Boyle’s lap. When chastised Cir. 1996). The Supreme Court has cautioned, however, that by the court for his outburst, Osborne unrepentantly “the mere existence of a basis for a state procedural bar does proclaimed before the jury, “Dr. Boyle, I apologize if I not deprive [federal courts] of jurisdiction; the state court dropped those records in your lap too hard. I didn’t mean must actually have relied on the procedural bar as an anything by that. I just was frustrated that you were lying and independent basis for its disposition of the case.” Caldwell v. I’m going to prove it . . . .” (Emphasis added.) After further Mississippi, 472 U.S. 320, 327 (1985). Moreover, the last contentious questioning, Osborne drew an additional state court rendering a reasoned judgment on the matter must reprimand from the trial judge for suggesting, again before the “clearly and expressly” state that its judgment rests on such a jury while questioning Boyle, that Boyle needed a procedural bar. See Coleman v. Thompson, 501 U.S. 722, 735 psychiatrist. (1991). Despite the startling display of unprofessional and unethical All parties to this appeal agree that Boyle failed to object conduct by Osborne during cross-examination of Boyle, the contemporaneously to most of the improper arguments made prosecutor saved his most egregious conduct for his by Osborne in summation and that, in the usual case, such summation argument at the close of the proofs. Osborne failure would foreclose appellate review of the matter. The began his lengthy argument by improperly describing Boyle parties further agree that the decision rendered by the as an individual more privileged, and thus less worthy of Kentucky Supreme Court on direct appeal was merely a compassion or just treatment, than the jurors themselves. He summary disposition and that the decision of the Kentucky then falsely stated that Boyle received special treatment Court of Appeals is the final reasoned opinion on the because of his socio-economic status, that the jurors easily procedural default issue. The parties’ dispute centers, could have been selected as Boyle’s targets, and that the therefore, on the question of whether the Kentucky Court of prosecutor knew, without doubt, that Boyle was guilty. Appeals “clearly and expressly” relied on procedural default Specifically, Osborne argued, in relevant part, as follows: to reject Boyle’s claims. May it please the court and counsel. Ladies and Fortunately, we are not required to decide this question in gentlemen of the jury, this is the absolute best time of the a vacuum. Even if we were to determine in a similar case that trial because at this point in time you get to start using an appellate proclamation that an issue was not preserved for your common sense about this case. And your common review, followed by a discussion of the harmlessness of any sense about this case has probably already told you it’s error, constitutes a clear expression of reliance on the state not the ordinary, run of the mill case. This case is procedural rule, we would not be bound by such a conclusion different. It’s different for one reason and one reason in this case. This is so because the Kentucky Court of alone. That is because Cornelius Boyle is not your Appeals itself, in its later opinion affirming the denial of ordinary run of the mill defendant. Dr. Cornelius Boyle, Boyle’s request for a new trial based upon newly discovered ladies and gentlemen, was a rich and powerful man in evidence, characterized the basis of its prior decision as this town for a while. He was a big cog in a big wheel, substantive, rather than procedural. In that opinion, the court and the real question in this case is how does our system summarized the history of the litigation by stating, “Boyle of justice in this country treat the big wheel, the big cog, appealed to this Court, and in an opinion of March 5, 1993, the power man, the guy that threatens his employees, the this Court affirmed Boyle’s conviction. This Court held that guy that throws around his money, the guy that acts big, although some of the comments by the prosecutor were the guy that pushed people around, and the guy that inappropriate, based upon the substantial evidence presented, 8 Boyle v. Million No. 98-6485 No. 98-6485 Boyle v. Million 5

Although there is no doubt that the Commonwealth’s threatens people, and, finally, the guy that goes over the closing argument went well beyond what is allowed, we edge and shoots somebody – calls them up in the middle do not believe that a manifest injustice resulted from the of the night, the rich and powerful man does, and says, errors. Accordingly, we affirm the judgment because the “I’m coming to kill you,” and then he shows up out there evidence strongly supports the verdict upon which it is with a shotgun and he shoots at the house. based and because the jury was properly instructed. * * * * * Id., slip op. at 11-12 (emphasis added).1 The Kentucky Supreme Court denied discretionary review in a summary What’s the first thing that happens? The judge of the order with Chief Justice Robert Stephens noting his dissent. Graves Circuit Court recuses himself; he can’t hear the See Cornelius D. Boyle, M.D. v. Commonwealth of Kentucky, case; hands off. So a special judge has to be appointed No. 93-SC-193-D (Ky. Oct. 22, 1993).2 Subsequent post- by the Supreme Court, Judge Fuqua, to hear the case. conviction motions were similarly unsuccessful, and Boyle The second thing that happens, local prosecutor, Rick filed his petition for habeas corpus relief in federal court on Weisenberger, can’t handle it. Has to get out. It’s too September 9, 1997. hot. So the Attorney General of Kentucky appoints me as special prosecutor to present the case to you. It’s not Although a magistrate judge initially recommended that the like any other case, yet. respondent’s motion to dismiss the petition be granted, the district court conditionally granted habeas corpus relief based Then what happens? The Graves County jury is not upon its conclusion that the challenged prosecutorial errors so quite good enough to hear the case for Dr. Boyle in his infected the integrity of the proceeding as to violate the hometown. He gets one from Paducah, one of people guarantee of a fair trial. This appeal then ensued. that don’t know him. Now, you, then, drive from Paducah every day for a week, the special judge comes II. PROCEDURAL DEFAULT from Todd County, and I come here to present this criminal case. It’s not like other cases. The state now argues that procedural default in the state courts precludes federal jurisdiction over Boyle’s complaint The second thing that happened that makes it different regarding the propriety of Osborne’s closing argument. We from all other cases is right here. It’s Mr. Mark Bryant, have consistently held that, absent cause and prejudice, “a it’s Mr. Will Kautz, and it’s the defense that’s presented. federal habeas corpus petitioner who fails to comply with a state’s rules of procedure waives his right to federal habeas Ladies and gentlemen, what you’ve got is not the typical corpus review.” Gravley v. Mills, 87 F.3d 779, 784-85 (6th lawyer advising a client defense. What you’ve got was the most expensive, time consuming, nit-picking defense that made no difference about all the facts they talk 1 about that you could have ever imagined. They put a One member of the appellate panel dissented, finding that “the doctor on the stand that told the biggest whopper in the procedural errors assigned by appellant most certainly deprived him of a world, about not knowing where he was, and then, on top fair and impartial trial.” Id., slip op. at 12. of that, called a psychiatrist to try to doodle you into 2 thinking that somehow he’s okay and you shouldn’t The Kentucky Supreme Court did take the unusual step of requesting the Kentucky Bar Association to investigate the conduct of the punish him, somehow he’s different and you ought to let prosecutor in the case. him go, somehow he’s smart and he’s intelligent and you 6 Boyle v. Million No. 98-6485 No. 98-6485 Boyle v. Million 7

shouldn’t do anything about him. Now the reason you * * * * * got that defense is because Dr. Boyle has the ability to muster the resources to present that defense, and I don’t For that reason, ladies and gentlemen of the jury, I ask begrudge that. That’s fair. That’s our system. He had you to make your verdict stand for something important, the resources, but you have to understand that’s what you to make your verdict mean something important, to make heard, and that’s what you got. That’s what the resources your verdict be truth and be justice for Bob Pitman, and were used for. The little old ladies that you saw, the for Dr. Boyle, so that the Dr. Boyles of the world know Medicare payments for those surgeries that weren’t just because they’re rich, just because they’re powerful, needed, they went into the pockets of this type of just because they can hire the best defense, when all of defense. the facts are patently clear, and they’re guilty of first degree wanton assault, they’re just as guilty as the * * * * * lowest average little guy in this town. Now, the most important single fact that you need to (Emphasis added.) Throughout his closing argument, think about right now, and what I want to ask you to Osborne also made numerous additional references to the fact think about right now, is you’re at home, any of these that the jurors should identify themselves with the victim and homes; you’re at home at the Tidwells’ house, the the victim’s family and neighbors. Millers’ house, or the Pitmans’ house. It’s an ordinary night. Nothing different is going on. You’re just at Not surprisingly given both the nature and the tenor of the home. ‘Cause these people were selected at random. prosecution’s harangue, the jury voted to convict Boyle of the These three people were selected at random by the offense charged in the indictment. After being sentenced by defendant. They were selected the same way you all the trial court to a ten-year prison term, however, Boyle began were; just like you were selected at random through the his efforts to overturn that conviction. He first appealed to process; they knew not that they were going to be caught the Kentucky Court of Appeals, raising numerous issues, up in this huge conflict. They knew not that they were including a claim that Osborne was guilty of prosecutorial going to be drug into court some day and asked all these misconduct in the manner in which he conducted the cross- questions. They were selected at random by this man. examination of Boyle and in which he argued to the jury in Now, that makes them exactly like you, in a way. summation. See Cornelius D. Boyle v. Commonwealth of Kentucky, No. 91-CA-001314-MR, slip op. at 8-12 (Ky. Ct. * * * * * App. Mar. 5, 1993). Despite finding the prosecutor’s actions objectionable, the court noted that “[b]ecause Boyle failed to I don’t know what . . . was in his mind at the second, and object to these statements [made at argument], he did not he’s not ever going to tell anybody what was going on; so properly preserve them for review.” Id., slip op. at 11. The it’s – we have to guess a little bit. But what I do know majority of the three-member appellate panel, however, then for sure is he’s guilty of wanton first degree assault as ruled: are in the instructions. Considering the evidence, we believe it is likely the jury * * * * * would have convicted Boyle of wanton assault even without the improper statements. Boyle did not deny that The man committed a murder; it’s just Bob got saved in he shot Pitman. His defense of self-protection was based that emergency room. on what he thought might have happened.