Boyle v. Million, Warden

• Decision Date: 24 September 1999
• Docket Number: No. 98-6485,98-6485
• Citation: 201 F.3d 711
• Parties: (6th Cir. 2000) Cornelius D. Boyle, Petitioner-Appellee, v. George Million, Warden, Respondent-Appellant. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 711

201 F.3d 711 (6th Cir. 2000)

Cornelius D. Boyle, Petitioner-Appellee, v.George Million, Warden, Respondent-Appellant.

No. 98-6485

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: September 24, 1999

Decided and Filed: January 7, 2000

Rehearing and Suggestion for Rehearing En Banc Denied March 13, 2000.

Appeal from the United States District Court for the Western District of Kentucky at Paducah, No. 97-00241--Edward H. Johnstone, District Judge.

Samuel J. Floyd, Jr., OFFICE OF THE ATTORNEY GENERAL, CIVIL DIVISION, Frankfort, Kentucky, for Appellant.

Timothy K. Newcomb, GRANT & NEWCOMB, Laramie, Wyoming, Maynard D. Grant, GRANT & NEWCOMB, Seattle, Washington, J. Fox DeMoisey, DeMOISEY & SMITHER, Louisville, Kentucky, for Appellee.

Before: BOGGS and DAUGHTREY, Circuit Judges; DONALD,^*District Judge.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

RespondentGeorge Million, the warden at Eastern Kentucky Correctional Center appeals the decision of the district court granting the petitioner, Cornelius Boyle, a conditional writ of habeas corpus based upon prosecutorial misconduct that occurred during Boyle's criminal trial.Before us, Million contends that the writ was erroneously issued because it was based in part upon alleged prosecutorial misconduct during closing argument, a claim that the respondent insists was procedurally defaulted before the Kentucky state courts.We conclude, however, that the Kentucky appellate courts did not clearly and expressly base their denial of Boyle's claims upon procedural default rules.Consequently, the issue raised by the petitioner was properly before the district court.Moreover, because "grave doubt" exists as to whether the blatantly unethical prosecutorial conduct at Boyle's trial had a substantial and injurious effect upon the jury's decision, we concur with the determination that such error cannot be deemed harmless.We thus affirm the district court's grant of the conditional writ of habeas corpus in this matter.

I.FACTUAL AND PROCEDURAL BACKGROUND

The parties do not seriously dispute the relevant facts underlying the petitioner's conviction, appeals, and habeas history.Boyle, an ophthalmologist, moved from Baltimore to Mayfield, Kentucky, in 1987 and established an initially successful practice.Sometime after he declined to join a rival medical group, however, a number of malpractice suits were filed against him.Although he prevailed in most of them, his reputation suffered and his practice collapsed.

On July 1, 1990, Boyle became distraught and intoxicated after learning that Jean Ann Miller, a neighbor and his chief office assistant, tendered her resignation in order to join the practice of one of Boyle's competitors.On that evening, Boyle telephoned Miller and her husband, threatened to kill them, and was later spotted in the Millers' yard shooting a shotgun toward the Millers' residence.When another neighbor, Robert Pitman, armed himself and investigated the disturbance, he was injured by a shotgun blast from Boyle's weapon.Despite his claim that severe intoxication obliterated his memory of the incident, Boyle was arrested and charged with first-degree assault, terroristic threatening, and resisting arrest in regard to the incident.(The latter two charges were eventually dismissed and were never presented to the jury.)

Prior to trial, Richard Weisenberger, the regular prosecuting attorney for Graves County, successfully moved to substitute a special prosecutor for himself in the Boyle prosecution because Weisenberger had previously represented Boyle in an unrelated civil action.Similarly, the judge who normally heard criminal cases in the district disqualified himself from the case and was replaced by order of the Kentucky Supreme Court.Finally, due to the unusually large amount of pretrial publicity generated by the case, the trial court granted a defense motion to select the jury from the citizenry of a neighboring county.

Boyle's trial began innocently enough with Thomas Osborne serving as the special prosecutor in Weisenberger's stead.When Osborne began his cross-examination of defendant Boyle, however, the code of ethics and civility that should undergird the legal profession began to take devastating blow after blow.Immediately, Osborne launched into theatrics.He prefaced his third question to Boyle with the query, "Now, that is an outright lie, isn't it, Doctor?"With the boost from that springboard, he then began badgering Boyle, interrupting his answers, and even going so far as to throw a deposition into Boyle's lap.When chastised by the court for his outburst, Osborne unrepentantly proclaimed before the jury, "Dr. Boyle, I apologize if I dropped those records in your lap too hard.I didn't mean anything by that.I just was frustrated that you were lying and I'm going to prove it . . . ."(Emphasis added.)After further contentious questioning, Osborne drew an additional reprimand from the trial judge for suggesting, again before the jury while questioning Boyle, that Boyle needed a psychiatrist.

Despite the startling display of unprofessional and unethical conduct by Osborne during cross-examination of Boyle, the prosecutor saved his most egregious conduct for his summation argument at the close of the proofs.Osborne began his lengthy argument by improperly describing Boyle as an individual more privileged, and thus less worthy of compassion or just treatment, than the jurors themselves.He then falsely stated that Boyle received special treatment because of his socio-economic status, that the jurors easily could have been selected as Boyle's targets, and that the prosecutor knew, without doubt, that Boyle was guilty.Specifically, Osborne argued, in relevant part, as follows:

May it please the court and counsel.Ladies and gentlemen of the jury, this is the absolute best time of the trial because at this point in time you get to start using your common sense about this case.And your common sense about this case has probably already told you it's not the ordinary, run of the mill case.This case is different.It's different for one reason and one reason alone.That is because Cornelius Boyle is not your ordinary run of the mill defendant.Dr. Cornelius Boyle, ladies and gentlemen, was a rich and powerful man in this town for a while.He was a big cog in a big wheel, and the real question in this case is how does our system of justice in this country treat the big wheel, the big cog, the power man, the guy that threatens his employees, the guy that throws around his money, the guy that acts big, the guy that pushed people around, and the guy that threatens people, and, finally, the guy that goes over the edge and shoots somebody - calls them up in the middle of the night, the rich and powerful man does, and says, "I'm coming to kill you," and then he shows up out there with a shotgun and he shoots at the house.

What's the first thing that happens?The judge of the Graves Circuit Court recuses himself; he can't hear the case; hands off.So a special judge has to be appointed by the Supreme Court, Judge Fuqua, to hear the case.The second thing that happens, local prosecutor, Rick Weisenberger, can't handle it.Has to get out.It's too hot.So the Attorney General of Kentucky appoints me as special prosecutor to present the case to you.It's not like any other case, yet.

Then what happens?The Graves County jury is not quite good enough to hear the case for Dr. Boyle in his hometown.He gets one from Paducah, one of people that don't know him.Now, you, then, drive from Paducah every day for a week, the special judge comes from Todd County, and I come here to present this criminal case.It's not like other cases.The second thing that happened that makes it different from all other cases is right here.It's Mr. Mark Bryant, it's Mr. Will Kautz, and it's the defense that's presented.

Ladies and gentlemen, what you've got is not the typical 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 about that you could have ever imagined.They put a doctor on the stand that told the biggest whopper in the world, about not knowing where he was, and then, on top of that, called a psychiatrist to try to doodle you into thinking that somehow he's okay and you shouldn't punish him, somehow he's different and you ought to let him go, somehow he's smart and he's intelligent and you 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 begrudge that.That's fair.That's our system.He had the resources, but you have to understand that's what you heard, and that's what you got.That's what the resources were used for.The little old ladies that you saw, the Medicare payments for those surgeries that weren't needed, they went into the pockets of this type of defense.

Now, the most important single fact that you need to think about right now, and what I want to ask you to think about right now, is you're at home, any of these homes; you're at home at the Tidwells' house, the Millers' house, or the Pitmans' house.It's an ordinary night.Nothing different is going on.You're just at home.'Cause these people were selected at random.These three people were selected at random by the defendant.They were selected the same way you all were; just like you were selected at random through the process; they knew not that they were going to be caught up in this huge conflict.They knew not that they were going to be drug into court some day and asked all these questions.They were selected at random by this man.Now, that makes them exactly like you, in a way.

I don't know what . . . was in his mind at the second, and he's not ever going to tell anybody what was going on; so it's - we have to...