                                                                              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.


                                                                                                     1
2     Boyle v. Million                           No. 98-6485      No. 98-6485                                Boyle v. Million      11

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.
