Sunday, January 16, 2000

Doctor released after court decides his trial was unfair


BENCHMARKS

BY BEN L. KAUFMAN
The Cincinnati Enquirer

        Ophthalmologist Cornelius D. Boyle spent half a decade in prison because a lying prosecutor violated his Sixth Amendment right to a fair trial in an assault case involving a gun.

        Dr. Boyle was released Monday on his promise to return to Graves County Circuit Court if called.

        Meanwhile, Kentucky is deciding whether to retry him, appeal further or free the physician.

        His victory reflects years of appellate work by Louisville lawyer J. Fox DeMoisey and co-counsel Timothy K. Newcomb of Laramie, Wyo., and Maynard D. Grant of Seattle.

        Mr. Newcomb, who specializes in federal appeals of state convictions, called Dr. Boyle's case the “hardest, bare-knuckle” battle of his career.

        Dr. Boyle was released after a 3-0 opinion by the 6th Circuit against prosecutor Thomas Osborne's conduct. Attorneys familiar with the 6th Circuit said it was the harshest language in memory.

        In it, Judge Martha Craig Daughtrey said Mr. Osborne's statements “were obviously intended to mislead the jury and prejudice the defendant.”

        Worse, she said, “The start of the prosecution's summation argument contained outright lies ... Such contemptible behavior on the part of a public servant under an obligation to seek justice cannot be condoned.”

        Writing for herself and Judges Danny J. Boggs and Bernice B. Donald, Judge Daughtrey said Mr. Osborne's statements during cross examination were “so deplorable as to define the term "prosecutorial misconduct.'” His comments during closing arguments similarly were “beyond ethical bounds.”

        She also noted Mr. Osborne's authorship of a handbook for trial lawyers that decried such tactics.

        Mr. Newcomb said the case began in 1990 when Dr. Boyle learned that the trusted manager in his Mayfield office had just joined a rival in nearby Paducah.

        Dr. Boyle was “howling and firing shots at the moon” outside the former aide's home. Dr. Boyle also wounded a neighbor who armed himself and came out to investigate the fuss.

        Dr. Boyle was sentenced to 10 years in prison — the minimum — in 1991 for first-degree assault. If retried and convicted, he faces up to 20 years total.

        Kentucky's Supreme Court refused to intervene after a state appeals court rejected Dr. Boyle's arguments; he went to prison in 1994.

        From there, he petitioned for the rarely granted and increasingly re stricted writ of habeas corpus, saying Mr. Osborne's conduct denied him a fair trial. (Habeas corpus is a way to challenge the constitutionality of a state conviction in federal court.)

        His first good news came in 1998. U.S. District Judge Edward H. Johnstone in Paducah granted the writ, telling Kentucky to retry Dr. Boyle in 180 days or free him.

        Instead, Kentucky appealed to the 6th Circuit, leaving Dr. Boyle in prison for another 17 months.

        Assistant Attorney General Samuel J. Floyd Jr. argued that a procedural error disqualified Dr. Boyle from seeking a writ of habeas corpus; his unnamed defense attorney failed to challenge the prosecutor's misconduct during the trial.

        Mr. Floyd was right on the facts but wrong on the argument, the 6th Circuit said. The trial lawyer blew it but Kentucky's appeals court “clearly and expressly” did not rely on that procedural error when it ruled against Dr. Boyle.

        Instead, the Kentucky appellate judges relied on the evidence and that distinction gave new life to Dr. Boyle's petition and allowed Judge Johnstone to issue the writ.

        Then Judge Daughtrey returned to Mr. Osborne's misconduct, saying, “The code of ethics and civility that should undergird the legal profession began to take devastating blow after blow” during cross examination of Dr. Boyle:

        • Mr. Osborne prefaced a question with, “Now, that is an outright lie, isn't it, Doctor?”

        • He badgered Dr. Boyle and interrupted his answers.

        • Mr. Osborne threw a transcript in Dr. Boyle's lap and, after being chastised by the Graves County judge, said, “Dr. Boyle, I apologize if I dropped those records in your lap too hard. I didn't mean anything by that. I was just frustrated that you were lying, and I'm going to prove it.”

        • Mr. Osborne suggested Dr. Boyle needed a psychiatrist.

        Despite that “startling display of unprofessional and unethical conduct,” Judge Daughtrey wrote, “the prosecutor saved his most egregious conduct for his summation argument”:

        • He improperly described Dr. Boyle as more privileged than jurors themselves, thus less worthy of compassion or just treatment.

        • He falsely said Dr. Boyle received special treatment because he was a “rich and powerful man,” that jurors easily could have been Dr. Boyle's targets, and that Mr. Osborne knew, without doubt, that Dr. Boyle was guilty.

        • He falsely accused Dr. Boyle of murder.

        Fortified by the 6th Circuit's unanimous decision on Jan. 7, Judge Johnstone had Dr. Boyle brought to his court in Paducah after the weekend and released.

Ignoring court to cost Mich.
        A $385,000 sanction for contempt reveals the price of ignoring federal judges.

        It was the latest defeat for Michigan, which has been fighting a rearguard action for 22 years over demands by female inmates for educational and work opportunities equal to those given male prisoners.

        Recently, Michigan satisfied U.S. District Judge John Feikens in Detroit that women's programs were substantially in compliance with court orders.

        However, Michigan had ignored Judge Feikens' orders from June 8, 1998, to August 24, 1998, and he imposed a $5,000 daily penalty for contempt.

        Michigan appealed the contempt judgment without success.

        Judges Ralph B. Guy Jr., Dannie J. Boggs and Joseph M. Hood approved the $385,000 bill as “a punitive measure designed to force (Michigan) finally to comply with the court's lawful orders after years of defiance and delay.”

        Judge Boggs said: “It would seem to have succeeded since (Michigan) was found to have followed the court's order within 10 weeks.” Further, Judge Boggs said the penalty was not excessive.

        “In light of (Michigan's) years of noncompliance, the district court's subsequent imposition of sanctions beginning only with June 8, 1998, was remarkably forbearant. The amount in question seems at last to have succeeded in capturing (Michigan's) attention.”

       



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