Cornelius D. Boyle v. GEORGE MILLION , Warden

12 Boyle v. Million No. 98-6485
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,
and prestige could not help but prejudice the jury against the
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
that, on its merits, had a great likelihood of resulting in a
felony conviction. Unfortunately, through grandstanding and
a warped sense of courtroom decorum, he has succeeded only
in making a mockery of constitutional principles and
protections and has forced the expenditure of additional time
and resources on a second trial in this matter. Despite these
costs, we have no hesitation in ordering appropriate habeas
corpus relief in an effort to rectify damage done in this case
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.
*The Honorable Bernice B. Donald, United States District Judge for
the Western District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0009P (6th Cir.)
File Name: 00a0009p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
C ORNELIUS D. BOYLE ,
Petitioner-Appellee,
v.
GEORGE M ILLION , Warden,
Respondent-Appellant.
;>

1
No. 98-6485
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,

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2 Boyle v. Million No. 98-6485
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.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge.
Respondent George 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
No. 98-6485 Boyle v. Million 11
“prosecutorial misconduct.” Furthermore, closing arguments
that appeal to class prejudices, encourage juror identification
with crime victims, or vouch for the defendant’s guilt would
each be deemed beyond ethical bounds. To combine all three
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
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
contained outright lies likely intended to convince the jury
that a rich and powerful man, presumably with advantages not
shared by the jurors themselves, somehow manipulated the
judicial system for his own gain. Osborne knew that his
statements intimating that the notoriety of the defendant and
his prosecution forced the usual judge and prosecutor to
recuse themselves from the case were incorrect and likely to
prejudice the jury against Boyle. Such contemptible behavior
on the part of a public servant under an obligation to seek
justice cannot be condoned.
Second, the improprieties on the part of the prosecutor were
not isolated, but rather infected all aspects of the trial. In light
of Osborne’s co-authorship of a handbook for trial lawyers
that decried such tactics, moreover, it cannot reasonably be
denied that the erroneous comments and statements were
deliberately placed before the jury.
It is true that the case against Boyle was relatively
straightforward and strong. Given the egregious and
inflammatory nature of the behavior and arguments of the
prosecutor throughout trial, however, we are left with “grave
doubt” as to whether the prosecutorial errors “had substantial
and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)); see also O’Neal v. McAninch, 513 U.S. 432, 436
(1995). In fact, the prosecutor’s efforts to equate the jurors
with the defendant’s victim, to emphasize the mistaken idea

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10 Boyle v. Million No. 98-6485
reversal was not required.” Cornelius D. Boyle v.
Commonwealth of Kentucky, No. 94-CA-1036-MR, slip op.
at 2 (Ky. Ct. App. Feb. 23, 1996) (emphasis added).
Consequently, the state court of appeals itself did not interpret
its decision as one relying substantially on procedural default.
In such a situation, principles of comity and federalism
require that we defer to the state court’s determination of the
basis of its decision and now engage in an examination of the
merits of Boyle’s habeas corpus claim alleging prosecutorial
misconduct.
III. PROSECUTORIAL MISCONDUCT
In United States v. Carroll, 26 F.3d 1380 (6th Cir. 1994),
we summarized our recent jurisprudence on the issue of
prosecutorial misconduct in an effort to provide guidance for
future cases and noted that, when addressing claims of
prosecutorial misconduct, we first determine whether the
challenged statements were indeed improper. See United
States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999). Upon a
finding of such impropriety, we then “look to see if they were
flagrant and warrant reversal.” Id. (citing Carroll, 26 F.3d at
1388). Flagrancy is determined by an examination of four
factors: “1) whether the statements tended to mislead the jury
or prejudice the defendant; 2) whether the statements were
isolated or among a series of improper statements; 3) whether
the statements were deliberately or accidentally before the
jury; and 4) the total strength of the evidence against the
accused.” Id. at 549-50.
Without question, the challenged portions of the
prosecution’s cross-examination of Boyle, and almost all of
the government’s closing argument, were highly improper.
While a prosecutor is clearly authorized to strike hard blows
in an earnest and vigorous prosecution, he or she “is not at
liberty to strike foul ones.” Berger v. United States, 295 U.S.
78, 88 (1935). Badgering and interrupting a witness, name-
calling, predicting that the defendant will lie on the stand, and
stating before the jury that the defendant is in need of
psychiatric help are tactics so deplorable as to define the term
No. 98-6485 Boyle v. Million 3
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

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4 Boyle v. Million No. 98-6485
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
No. 98-6485 Boyle v. Million 9
Cir. 1996). The Supreme Court has cautioned, however, that
“the mere existence of a basis for a state procedural bar does
not deprive [federal courts] of jurisdiction; the state court
must actually have relied on the procedural bar as an
independent basis for its disposition of the case.” Caldwell v.
Mississippi, 472 U.S. 320, 327 (1985). Moreover, the last
state court rendering a reasoned judgment on the matter must
“clearly and expressly” state that its judgment rests on such a
procedural bar. See Coleman v. Thompson, 501 U.S. 722, 735
(1991).
All parties to this appeal agree that Boyle failed to object
contemporaneously to most of the improper arguments made
by Osborne in summation and that, in the usual case, such
failure would foreclose appellate review of the matter. The
parties further agree that the decision rendered by the
Kentucky Supreme Court on direct appeal was merely a
summary disposition and that the decision of the Kentucky
Court of Appeals is the final reasoned opinion on the
procedural default issue. The parties’ dispute centers,
therefore, on the question of whether the Kentucky Court of
Appeals “clearly and expressly” relied on procedural default
to reject Boyle’s claims.
Fortunately, we are not required to decide this question in
a vacuum. Even if we were to determine in a similar case that
an appellate proclamation that an issue was not preserved for
review, followed by a discussion of the harmlessness of any
error, constitutes a clear expression of reliance on the state
procedural rule, we would not be bound by such a conclusion
in this case. This is so because the Kentucky Court of
Appeals itself, in its later opinion affirming the denial of
Boyle’s request for a new trial based upon newly discovered
evidence, characterized the basis of its prior decision as
substantive, rather than procedural. In that opinion, the court
summarized the history of the litigation by stating, “Boyle
appealed to this Court, and in an opinion of March 5, 1993,
this Court affirmed Boyle’s conviction. This Court held that
although some of the comments by the prosecutor were
inappropriate, based upon the substantial evidence presented,

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8 Boyle v. Million No. 98-6485
1One member of the appellate panel dissented, finding that “the
procedural errors assigned by appellant most certainly deprived him of a
fair and impartial trial.” Id., slip op. at 12.
2The Kentucky Supreme Court did take the unusual step of
requesting the Kentucky Bar Association to investigate the conduct of the
prosecutor in the case.
Although there is no doubt that the Commonwealth’s
closing argument went well beyond what is allowed, we
do not believe that a manifest injustice resulted from the
errors. Accordingly, we affirm the judgment because the
evidence strongly supports the verdict upon which it is
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
order with Chief Justice Robert Stephens noting his dissent.
See Cornelius D. Boyle, M.D. v. Commonwealth of Kentucky,
No. 93-SC-193-D (Ky. Oct. 22, 1993).2 Subsequent post-
conviction motions were similarly unsuccessful, and Boyle
filed his petition for habeas corpus relief in federal court on
September 9, 1997.
Although a magistrate judge initially recommended that the
respondent’s motion to dismiss the petition be granted, the
district court conditionally granted habeas corpus relief based
upon its conclusion that the challenged prosecutorial errors so
infected the integrity of the proceeding as to violate the
guarantee of a fair trial. This appeal then ensued.
II. PROCEDURAL DEFAULT
The state now argues that procedural default in the state
courts precludes federal jurisdiction over Boyle’s complaint
regarding the propriety of Osborne’s closing argument. We
have consistently held that, absent cause and prejudice, “a
federal habeas corpus petitioner who fails to comply with a
state’s rules of procedure waives his right to federal habeas
corpus review.” Gravley v. Mills, 87 F.3d 779, 784-85 (6th
No. 98-6485 Boyle v. Million 5
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

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6 Boyle v. Million No. 98-6485
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 guess a little bit. But what I do know
for sure is he’s guilty of wanton first degree assault as
are in the instructions.
* * * * *
The man committed a murder; it’s just Bob got saved in
that emergency room.
No. 98-6485 Boyle v. Million 7
* * * * *
For that reason, ladies and gentlemen of the jury, I ask
you to make your verdict stand for something important,
to make your verdict mean something important, to make
your verdict be truth and be justice for Bob Pitman, and
for Dr. Boyle, so that the Dr. Boyles of the world know
just because they’re rich, just because they’re powerful,
just because they can hire the best defense, when all of
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.
(Emphasis added.) Throughout his closing argument,
Osborne also made numerous additional references to the fact
that the jurors should identify themselves with the victim and
the victim’s family and neighbors.
Not surprisingly given both the nature and the tenor of the
prosecution’s harangue, the jury voted to convict Boyle of the
offense charged in the indictment. After being sentenced by
the trial court to a ten-year prison term, however, Boyle began
his efforts to overturn that conviction. He first appealed to
the Kentucky Court of Appeals, raising numerous issues,
including a claim that Osborne was guilty of prosecutorial
misconduct in the manner in which he conducted the cross-
examination of Boyle and in which he argued to the jury in
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
object to these statements [made at argument], he did not
properly preserve them for review.” Id., slip op. at 11. The
majority of the three-member appellate panel, however, then
ruled:
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
he shot Pitman. His defense of self-protection was based
on what he thought might have happened.

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