Slagle v. Bagley

summary- grant court’s the district firm

judgment. Petitioner-Appellant, SLAGLE,

Billy Warden, BAGLEY,

Margaret

Respondent-Appellee.

No. 04-3490. Appeals, Court

United States Circuit.

Sixth 26, 2006.

Argued: Jan. Aug. and Filed:

Decided

6 Culshaw, requisite aggra- L. Public did not have the intent for Kelly

ARGUED: nevertheless, Office, jury, Public Defender vated murder. Ohio Defender’s Ohio, Columbus, Commission, Appel- aggravated sentenced him to death for for Maher, murder. Attorney E. Gener- Stephen lant. Section, Ohio, Capital Crimes al’s Office affirmed Slagle’s After the Ohio courts Columbus, Ohio, ON Appellee. for post-conviction sentence and denied Culshaw, E. Kelly Joseph L. Wil-

BRIEF: relief, Slagle petitioned the federal district helm, Lowe, K. Public Defender’s Robert court for habeas relief December 2001. Commission, Office, Public Defender Ohio petition. court denied his A certifi- Ohio, Columbus, Stephen Appellant. for (COA) cate of appealability has been Maher, Attorney E. General’s Office following is- granted to consider the four Columbus, Ohio, Section, Capital Crimes (1) (2) misconduct, in- sues: Ohio, Appellee. for effective of trial counsel at the assistance phase object trial for guilt failure BOGGS, Judge; Chief MOORE Before: (3) prosecution, certain comments ROGERS, Judges. Circuit pen- of counsel at ineffective assistance J., ROGERS, for opinion alty phase object delivered of trial failure BOGGS, J., court, joined. alleged prosecution’s in which C. use of nonstatuto- (4) factors, ry aggravating ineffective 529-34), MOORE, (pp. J. delivered a appellate assistance of counsel for failure separate opinion. dissenting challenge trial counsel’s decision not object to prosecution’s closing argu- OPINION argues ments. also this court ROGERS, Judge. Circuit refused extend COA improperly affirm. include two additional issues. We Billy sen- Petitioner who was jury for to death an Ohio tenced Anne murder of Mari aggravated I. judgment of the district

Pope, appeals denying his petition post-convic- court Trial A. Facts and brought to 28 U.S.C. pursuant tion relief reviewing case on direct When neighbor § into his broke consid- appeal, Supreme Court Ohio 13, 1987, on Pоpe’s August house follow- ered the trial record and something for the fol- he wanted to steal which, findings, according to ing factual Pope babysit- lowing day’s drinking. was 2254(e)(1), § correct presumed are U.S.C. children. ting neighborhood Ultimate- two by convincing and unless clear rebutted and, ly, Pope’s into bedroom Slagle went evidence: after stabbed her seventeen up, she woke August hours of early morning In the sewing times in her with her scis- chest 13, 1987, Pope Anne was escaped, the victim Mari sors. The two children called by appellant. in her home Slagle. police The awakened help, and identified children, had to agreed Two who she holding the scene found were also scissors, neighbors, watch for her Slagle later described bloody and The awoke to Although awakened. children that in detail. night his actions to who inquiring of Mari Anne as he killed voice Slagle admitted at her that, voluntary person was that had entered to this Pope, argued he due his angrily A man’s voice threatened marijuana, and he home. intoxication from alcohol her and ordered her to roll onto her one the dining on room floor and both began The man asked if there stomach. were officers Appellant search. had house, replied up in the to which gotten others she and a hidden himself in hall- upstairs. way there two children were closet. When the passed officer The man told the victim not to move and closet yet door this as darkened home, had a knife at appellant her back. The burst from the closet then Mari Anne begin children heard and sought escape. The first officer pray. responded man ordering appellant very react testified that stop her praying. quick agile. and The officer was unable appellant subdue until two other offi- recognized The children voice fray. cers entered the Appellant was Billy man knew the as who lived observed have blood on his hands and They hide, next first sought door. clothing. He also had number of su- escape. They and then to scurried perficial scratches and bruises. through the hall and out the back door. her, Despite One efforts to save children looked into the bed- Mari Anne Pope pronounced Slagle sitting room and observed on dead at 6:00 a.m. top victim, upon reported coroner lying who was her she been times, many stabbed seventeen only stomach. had on his with under- exited, having wear. As the the stab wounds children the victim been inflicted screaming. could heard around her chest area. There be abdomen, four stab wounds her five in The children were admitted into a extremities, upper and lower with neighbor’s police home and were called. eight area, to the chest including wounds momentarily Police officers arrived atrium, right to the pulmonary artery house, they moved around the shining right lung. She had also been se- flashlight windows, into the one officer verely her beaten about head and face. standing observed man in the rear day, At 10:00 a.m. the same Detective bedroom. The officer entered ob- John J. McKibben appel- interviewed appellant served attempting to hide in lant, having after first advised him of dining room, with armed blood-cov- first, rights. Fifth Amendment ap- At ered ordering appellant scissors. After pellant knowledge claimed to have no to discard the scissors and lie face down morning. events floor, being After placed on the the officer handcuffs reminded he had been arrested in him. home, appellant victim’s described The officer went then into the bed- his actions on night August 12 and room. He Mari Anne Pope observed morning of August 13 in some detail. lying across the middle the bed. Her Slagle, State v. nightgown pulled up was 65 Ohio around her St.3d (1992). neck. N.E.2d 920-21 was She drenched blood with large body. holes her On the floor Slaglе told that Detective McKibben he lay Mari Anne’s rosary, ap- broken and through entered a window and proceeded pellant’s tank-top T-shirt. basement, looking to the something for to companion,

The officer to called his steal. Slagle said that he took his shoes him telling to call for medical off treatment and then went upstairs to the room in and to take custody the handcuffed which sleeping. the children He were next man dining on the room Pope’s floor. The oth- went to bedroom. As he was er responded officer that searching purse, Pope there was no in her up woke and cross-examination, prosecution On screaming. placed He his hands on began Slagle Slagle her. said that that now quiet questions asked several her mouth sewing scissors they fighting for began challenges. prosecution Slagle The asked bed, and that he next to the history. that were and The about his education work “maybe her times.” ultimately stabbed Slagle State then asked how he mon- he Slagle admitted that tried also JA Slagle ey working. he not re- when was he could not rape Pope, but he said that marijuana to sponded anyone. that he sold murder, he After saw get an erection. marijua- The asked whether he sold State window, into the so he flashlight shining children, Slagle na and testified that he closet, police where ran into kitchen did not. sorry He that was for found him. said he asked, over defense When State Slagle provided happened. had what objection, Slagle whether had counsel’s name address of with the and patrolmen get money, ever into a house to broken Davis, Mike and with his friend Slagle responded that he had done so birth, number, and security date of social prosecution also asked wheth- twice. that, said Detective McKidden residence. supported family er his or whether his he McKid- Slagle’s eyes glassy, although him. family suрported Slagle answered person on Slagle’s no alcohol den smelled responsible anyone. was that he not morning. next at the scene trial, eigh- that At the evidence revealed he Slagle The State later asked whether afternoon Slagle spent teen-year-old was, a rosary Pope whether knew what his evening of murder with friends and her, rape began he pray attempted Jones, Davis, Kim and William Vivó- Mike and up, he told her shut wheth- whether Slagle unclear how much drank lo. It is Slagle prayers. er liked and said testi- he he testified that night. that Davis praying, fied he did not remember her that twenty night that and day about beers prayers, nothing wrong that he saw with “always up kept with Slagle he says prayers. he each also had shots whis- other.” then asked prosecution of mari- key about worth $50 and smoked sister, Andrea, po- ar- he have murdered the juana. Mike Davis’s whether would early scene, rived later. She testified lice at the JA murdered officer children, morning Slagle’s eyes were bloodshot and taken the scis- JA his slurring speech. ,” he to “use them the JA sors home next — however, Davis according to Mike objection cut off 656. Defense counsel’s vomiting, falling over. He staggering, The court sustained the prosecutor. bicycle early morning on a left in the objection, that “the prosecution told the get rode for two miles to home. and in- question highly improper[,]” disregard inquiry. structed testify. chose He stated that of the cross- JA Near end 654-56. into house to steal some- Pope’s he broke examination, responded when money for thing would have so he Pope not think that scratched day. the next He did recall alcohol face, “Police- responded, Pope’s house any entering after events a fact?” JA Isn’t that men don’t scratch. holding with fighting until he was her The court sustained defense 657. only stabbing bloody scissors. He recalled objection it is a as tо whether counsel’s once, he Pope and he testified that scratch. policemen fact that why he her. know killed trial, counsel, however, Throughout pri- Slagle’s idly defense’s did not sit mary argument Slagle was that was too by during closing argument. the State’s to drunk to form the intent murder. The objected, always Defense counsel almost expert testify defense called witnesses to successfully, following to the statements to Slagle’s to alcoholism and the fact that a Slagle that challenges: now that “It is a can high preclude level of intoxication one good thing that he didn’t know Howard to intent. The being from able form State him[,]” 672; identify Slagle could JA that expert responded with its own testi- who of “greatest was one threats against in processed rapidly fied that alcohol is community civilization[,]” 702; JA that consumption a body large and that of a “only defense witness offered liberal guarantee amount of alcohol does not that quack theories[,]” 700; JA that the de- an individual will remain intoxicated experts only fense’s gener- were called judge future time. The trial instructed sympathy 682; ate JA that jury that evidence of intoxication was defense witness Mike Davis was “an ad- purpose showing “admissible for the drug mitted who user” “crawled out mind such defendant’s was hole[,]” 693; JA was defense counsel capable of form- condition that was not salvage a “mad [Slagle’s] scramble ing specific Pope.” intent kill ... JA 691; credibility^]” JA and that defense Slagle counsel coached remember Slagle challenges now several comments by framing questions events the form and insinuations that the that, “Do you Billy?” remember JA 688. closing arguments its at the end of objected Defense counsel also prose- guilt phase Slagle’s the trial. coun- implication Slagle cution’s toler- had a object following sel did not to the com- alcohol, 666; prosecution’s ance to JA Slagle ments: previously had broken expert’s to an reference statement made see, e.g., drugs, into homes and sold JA body outside the record “the doesn’t 695; 679, 687, good that “It’s a damn lie[,]” 693; prosecution’s JA and the im- 670; thing up[,]” the kids didn’t wake JA proper comparison Slagle to bank rob- Slagle and that had “the nerve to tell [the using bank-robbery analogy, bers when ” T jury] pray[,]’ JA 670. also now JA 697-98. challenges, object to, but did not at trial prosecution’s speculation that one phase trial, the guilt After walking on would cause floorboards jury convicted mur- aggravated creak, 667; prosecution’s floor JA der death-penalty specifications with two suggestion, saying repeatedly that Sla- of committing murder in the course of gle Pope prevent killed her identi- from aggravated burglary aggravated rob- him, fying charged been bery. The also convicted committing with to escape murder “detec- aggravated burglary aggravated rob- trial, tion, apprehension, or punishment” however, bery. jury, acquitted him of 2929.04(A)(3), § under Ohio Revised Code attempted rape. 667, 670, 675-76; see JA prosecution’s penalty phase commenced about vouching credibility for the of several state Slagle’s three weeks later. (e.g., “I counsel called put my witnesses money mother, father, detectives[.]”), 692, 701, 671; homicide and sister to testi- JA fy that his him prosecution’s speculation changed and the alcohol abuse had death, Pope’s mental state her from a testimony before JA well-behaved child. The (“She God.”). ready to meet revealed that childhood far crime, when circumstances of the he asked the parents His divorced from ideal. old, jury, aggravating and he attend- “How is that?” Slagle years three JA was changed residences In response schools and evidence that he ed several twenty Slagle times. started an fifteen to came from a broken home and had age thе of using drugs problem, jurors, and alcohol alcohol the State told the thirteen. people “We all know from divorced homes. people We all know who have alcohol seventeen, age Slagle-received At of the in problems present the or in either the after inpatient treatment for alcoholism they they And full past. chose and lead being passenger joyriding arrested as and lives.” Slagle functional JA 838. also testing Although stolen car. revealed comments, argues that these besides the above-average intelligence, that he had prosecutorial guilt misconduct from the dropped high out of school after Slagle phase sentencing of the trial infected the the failing grade the for second eleventh proceedings. Petitioner’s Br. at 34-35. See jobs peri- for short time. He held various settling pattern into a ods of time before jury deliberating, After recom- A. Bert- every day. Dr. Kurt drinking penalty. The trial court mended death M.D., Slagle was schinger, testified that agreed and for Slagle sentenced death to be an alcoholic because predisposed court aggravated Pope. murder The history other He family his and factors. also to concurrent terms sentenced Slagle could be treated also testified that aggravated robbery for imprisonment jail. The for com- psychologist court’s burglary. Hall, sanity, Dr. W. petency Thomas Ph.D., B. Direct and Post-Conviction Review Slagle was an alcoholic testified that at the judgment impaired and that his twenty-five Slagle brought assignments of the crime. time Eighth of error to District Court of Ohio’s Appeals, affirmed his con- but court Finally, Slagle made brief unsworn Slagle, statement, viction and See apologizing Pope’s for death sentence. State (Ohio give Ct.App. him No. 1990 WL 82138 requesting that the 1990). appeal, Slagle On chal- June penalty. the death The defense submitted tri- lenged misconduct at into The exhibits evidence. de- several (listed al, *21 appendix see id. at permitted to make the first and fense was IX), opinion assignments as VI and arguments jury. last during penalty phase, see id. at comments that challenges several XVI). (listed *22 He assignment also closing prosecution during its argued deprived that he effective sentencing phase argument phases of assistance of counsel both referring to non- claims that the State was (listed at *22 his bifurcated trial. See id. statutory aggravating factors. See Peti- XIV). as assignment Br. at 35. The State first said tioner’s . affirmed Supreme Court of Ohio young was a murderer because Slagle, years old at the time trial. conviction in 1992. See State he was (1992). objection, Ohio 605 N.E.2d 916 pros- defense counsel’s St.3d Over jurors respect presented With the issues ecution asked whether any appeal, supreme court held sympathized Pope or showed her state with comments, any, by prose- if mercy. referred to sever- “the fundamen- its cution not render of the murder and al circumstances tally 605 N.E.2d point, detailing At after unfair.” brutality. one 512 (Ohio 10, 2000); Ct.App. court divided the com- 1144947 Aug. The state Slagle, 1490, v. Slagle challenged

ments that into three State 90 Ohio 739 St.3d (2000). (1) by prosecu- N.E.2d 815 categories: questions tion to which counsel did not ob- defense court appeals, state 1994 and (2) ject, by to questions 2002, reopen denied motions to his (3) object, which defense counsel did appeal pursuant direct to Rule of Ohio comments, which de- including those to 26(B). Appellate See Procedure Journal object, did fense counsel made (Ohio 1994) Entry 1, Ct.App. Sept. App. by prosecution during closing argu- COA, Request II, R; Vol. Exh. State ment. See id. 924-27. The state court 55759, Slagle, v. No. 2002 WL 1335630 for plain “approximate- reviewed error the 2002). (Ohio Ct.App. May The Su- ly seventeen statements and questions” preme Court of Ohio affirmed. See State object. which defense counsel did not See Slagle, v. 72 Ohio 651 St.3d N.E.2d id. at 925. The first court determined that (1995) curiam); (per Slagle, State v. plain there was no error then stated (2002) Ohio St.3d N.E.2d that “these comments did not render the curiam). (per fundamentally trial unfair.” id. As See 21, 2001, Slagle On December filed a questions for the to which defense counsel petition § under 28 U.S.C. 2254 for federal objected, state court held there post-conviction relief the district court. error, no that the “[t]o extent initially brought challenges, six but prosecutor may line, any have crossed the later complaint amended his include beyond error was harmless a reasonable challenge expanded seventh Finally, doubt.” See id. at 926. the state grounds for his claim of ineffective assis- court considered the challenged comments tance of appellate counsel. The district in closing argument. The court stat- court all denied of his claims without ed, objected “Appellant a number granting evidentiary hearing. an The dis- allegedly improper these comments.” See engage trict court decided not to in a id. The state court then held “while procedural analysis default that the State prosecu- some the remarks made merits, Addressing advocated. may tor have been somewhat improper, district court held that the state courts’ argument as a whole did not taint the disposition Slagle’s prosecutorial mis- fairness of trial.” See [the] id. to, contrary conduct claim was not an petitioned then Supreme of, application unreasonable federal law Court of the United States for a writ of and that the State’s reference nonstatu- certiorari, but the Supreme Court denied tory aggravating during factors penal- Ohio, petition. See 510 U.S. ty phase of the trial was at most harmless (1993). 833, 114 S.Ct. 126 L.Ed.2d error. The district court also held any error in instructions After he had ap exhausted his direct guilt penalty phases did not entitle peals, Slagle sought post-conviction relief Finally, relief. the district court in Ohio state courts. The court de held that there no ineffective assis- nied his motion to set vacate or aside guilt tance counsel at either phase judgment pursuant sentence and/or trial, or penalty phase of the on appeal. § Ohio Revised Code 2953.21. App. See COA, II, Request for Exh. O. The granted Vol. The district court COA appellate state courts also denied relief. four issues. The first issue is whether fundamentally State No. trial was WL rendered not, de novo This court’s review does assault on Sla- by prosecution’s unfair however, to the con- extend state court’s character, of facts outside statement gle’s clusions. The Antiterrorism Effective nonstatutory record, to reference (AEDPA), Penalty Death Act of 1996 factors, denigration defense aggravating (1996), 104-132, 110 Pub.L. No. Stat. 1214 counsel, for vouching witnesses filed governs Slagle’s petition, on review The second issue witnesses. 19, 2001, Slagle filed it December because ineffective defense counsel was is whether April effective date of after the statute’s to failing trial for guilt phase at Garceau, 24, 1996. v. 538 actions, object prosecutorial various to Woodford 202, 210, 1398, 123 155 L.Ed.2d U.S. S.Ct. statements, issue evidence. The third (2003). may grant Slagle’s 363 This court ineffective whether defense counsel was is if court’s decision petition only the state to object phase failing for penalty at (1) to, “contrary or an unrea- involved nonstatutory prosecution’s reference to of, application clearly established sonable is The final issue aggravating factors. law, by the as determined Su- Federal in- Slagle’s appellate counsel was whether (2) States; or preme Court of the United failing trial coun- for to address effective ... an unreasonable based on dеtermina- object State’s sel’s decision light the facts in of the evidence tion of guilt and arguments at both the closing proceeding.” in the State court presented sentencing phases. 2254(d). § 28 U.S.C. 7, 2005, January this court refused On contrary A is state-court decision Slagle’s any to include other extend COA “if the court precedent to federal state v. No. 04-3490 Slagle Bagley, claims. See opposite at that is arrives a conclusion 2005) (order). (6th 7, Slagle peti- Cir. Jan. on Supreme [the Court] that reached Court of United Supreme tioned question of law or if the state court ‍​‌​‌‌‌​‌​​​‌‌​‌​​​​‌‌‌‌​‌​‌​​‌‌‌‌​‌‌​​​​‌‌‌​‌​​‌‍decides of an court’s denial States to review this differently Supreme than [the a case COA, Supreme but Court extended materially has indistin on a set of Court] a writ of certiorari petition for denied Taylor, v. 529 guishable facts.” Williams 18, Bagley, April Slagle v. 2005. See 1495, 362, 412-13, 120 S.Ct. U.S. 1846, 161 L.Ed.2d 125 S.Ct. 544 U.S. (2000). A state-court decision L.Ed.2d 389 (2005). Therefore, we will consider “if the unreasonably applies federal law by the appeal certified for the four issues governing the correct state court identifies court. district Supreme Court’s] from legal principle [the unreasonably applies that but decisions II. prisoner’s of the to the facts principle 413, 120 1495. Id. at S.Ct. case.” considering the district When “[C]learly Federal § established petition, court’s denial of opposed “the holdings, law” refers to legal conclusions de this court reviews dicta, Court’s deci Supreme] [the Bagley, 380 F.3d novo. Williams (6th Cir.2004). state- court, of the relevant sions as the time The district 412, 120 S.Ct. ease, independent no factual court decision.” Id. this need not refer Be The state-court decision determinations. findings credibility cases or even Supreme Court based its relevant cause the district court instead Early them. an awareness of this court demonstrate findings transcript, on the trial Packer, findings U.S. 123 S.Ct. the district court’s factual reviews curiam). Instead, (2002) (per L.Ed.2d 263 See id. de novo аs well. it result is sufficient and reason- claim misconduct. ing Supreme argues are consistent with Court The warden cannot A precedent. challenge Id. state court moreover of the prosecution’s seventeen contrary clearly alleged improper not act established comments does precedent Supreme contemporaneous objec to make a law when failed nonexistent; may Although it tion to ambiguous Court those statements trial. contemporaneous objection hold a view that different from this court Ohio’s can rule v. an adequate independent or another federal court. See Mitchell be state 17, 7, Esparza, ground U.S. 124 S.Ct. 157 that is sufficient to foreclose Sla (2003) curiam). comments, (per gle’s challenges L.Ed.2d 263 Ulti- those see (6th mately, AEDPA’s highly deferential stan- Bagley, Biros F.3d requires Cir.2005); give dard this court the Bagley, Williams v. 380 F.3d at 968-69, state-court decision “the of the against benefit two considerations counsel Visciotti, applying doubt.” bar procedural U.S. to his chal Woodford 19, 24, 154 L.Ed.2d 279 lenges. S.Ct. (2002) curiam). (per First, objection in the warden’s her brief Applying principles Slagle’s these pe- to this court was insufficient because she tition, Supreme we conclude that the Court specificity has not identified with which unreasonably of did apply Ohio not federal allegedly statements are defaulted. See by Supreme law as determined the Court Parker, (6th Baze v. 371 F.3d supreme

when state court determined Cir.2004) (holding may that the state waive improper by comments made procedural the affirmative of de- defense prosecution not phase render either it). by failing fault assert warden Slagle’s fundamentally unfair. Al- merely says that “17 of the 24 statements thirty though challenges more than alleged misconduct” are procedurally by prosecution during comments made count, though, by defaulted even our Sla- trial, only fifteen of those comments gle challenges thirty more than statements improper. improper were Of the fifteen appeal. Respondent’s on this habeas comments, improper none comments atBr. 7-8. It is true that the state su- sentencing phase were preme court held that “approximately sev- trial, held about three weeks after objected enteen statements ... were not guilt phase. These com- Slagle, to at trial.” 605 N.E.2d at 925. ments were made in the context of a But, not only supreme did the state court evidentiary against strong Slagle, case specify exactly fail to the number of state- minimally prejudicial, were almost all were to, objected ments not but the court did extensive, not repeated. Be- identify the seventeen statements Slagle’s prosecutorial cause misconduct Moreover, it supreme which referred. fails, remaining, claim derivative claims suggested court ap- on direct for ineffective assistance of counsel also peal, challenged other comments to which Finally, Slagle’s request fail. that we re- object he failed to at trial. When discuss- extending our consider earlier order not ing the comments made untimely his COA is and therefore denied. argument, at closing supreme the state stated, objected “Appellant court to a num-

III. ber of allegedly improper these com- matter, ments,” procedur As a preliminary proceeded see id. at and then merits, al preclude default does not our review rule on the see id. 926-27. procedural relied identify deciding we cannot which state- on bar Simply put, procedurally are of prosecutorial ments state contends issue misconduct. These vague that, The warden’s assertion barred. considerations convince us con- case, default defense is not suffi- procedural preferable, text of this it is if not cient tо bar federal review. comment required, that we each consider prosecutorial mis- challenged Second, is unclear the extent to which it claim, notwithstanding any proce- conduct Supreme Court of Ohio reached respect dural default with a subset misconduct merits challenged comments. procedural on a relying claim instead of Biros, (stating 422 F.3d at 387 bar. See application of an that default based IV. ground adequate independent state Although prosecu several of the

requires actually enforce the the state during Slagle’s tion’s comments trial were issue). ground The independent state improper, Supreme did the Court of Ohio prosecutorial because a confusion arises unreasonably apply by not federal law de claim requires misconduct evaluation termining prosecutorial miscon the com- improper the cumulative effect of in this case duct did not render of an entire during ments made the course fundamentally trial unfair violation of States, Berger trial. v. United 295 See Eighth the Fourteenth and Amendments. 84-89, 629, 78, 79 L.Ed. 1314 U.S. 55 S.Ct. inquiry improp The correct is whether the (1935) (considering trial as a whole the er comments or actions “so the infected determining improper whether state- when trial with as to the result unfairness make by prosecutor ments the mandated new ing process.” conviction a denial due trial). court, however, supreme The state v. 477 (1) Wainwright, Darden U.S. separately questions to evaluated the (1986) (cit (re- 91 L.Ed.2d 144 S.Ct. object which defense counsel did not (2) ing Donnelly DeChristoforo, U.S. plain inquiry), viewed under error the 637, 643, 40 L.Ed.2d 431 questions to which defense counsel did ob- S.Ct. (3) comments, (1974)). ject, challenged all issue is not whether com The the to, objected closing not whether or in and of improper ments are themselves. 924- argument. Slagle, See 605 N.E.2d at this Supreme applied Court Ohio Supreme 27. The Court of Ohio reached by prosecu asking standard whether the the Slagle’s prosecutorial merits of miscon- fun tion’s comments the trial “render[ed] claim to the duct comments which damentally N.E.2d at Slagle, unfair.” objected and to all comments made counsel applied thus Ohio courts during closing arguments challenged on standard, correct constitutional Moreover, appeal. id. at 926-27. See only for court is issue this whether state court addressed merits unreasonably applied courts federal Ohio claim as to the comments which law. object by applying defense did not at trial To determine whether the Su “fundamentally stan- federal unfair” (“Even reasonably applied preme Court Ohio togeth-

dard. id. at 925 taken er, holding prose standard federal not render the trial these comments did unfair.”). Thus, cutorial misconduct did not render fundamentally cannot we unfair, fundamentally circuit em procedural- this challenges be sure were which two-prong test. See United States ly ploys in the courts or the defaulted state (6th Cir.2001). Carter, which court 236 F.3d precise extent the state First, this A. Improper court determines whether the Comments prosecution’s conduct or remarks im- grouped alleged We have improper affirmative, proper. If the answer then Slagle challenges comments that into the the court considers four factors to decide categories five COA: listed charac- whether the acts were sufficient- assault, ter record, facts outside of the (1) ly flagrant to warrant reversal: wheth- factors, nonstatutory aggravating denigra- er against the evidence the defendant was witnesses, tion of defense counsel and (2) strong, whether conduct of the vouching prosecutorial witnesses. tended mislead exceptions, With few see defendant; (3) prejudice the whether the 925-26, supreme N.E.2d the state court conduct or remarks were isolated or exten- explicitly did not determine which of (4) sive; whether the remarks were challenged see, improper, statements were accidentally. deliberately Id. (“After e.g., carefully id. at 926 reviewing case, reviewing

In this we are argument, the entire we conclude that Supreme mindful Court’s admoni while some of the remarks made tions that “the of due process touchstone prosecutor may have been im- somewhat analysis in alleged cases of proper, argument as a whole trial, misconduct is the fairness of the trial.”). taint the appellant’s fairness of Of culpability prosecutor,” Smith v. statements, challenged fifteen im- 209, 219, Phillips, 455 U.S. 102 S.Ct. proper. (1982), 71 L.Ed.2d that appro “the

priate ... standard review for a claim 1. Character Assault prosecutorial on [of writ of misconduct] corpus habeas is the narrow one Only of due prosecution’s two com ‍​‌​‌‌‌​‌​​​‌‌​‌​​​​‌‌‌‌​‌​‌​​‌‌‌‌​‌‌​​​​‌‌‌​‌​​‌‍ process, the broad concerning Slagle’s exercise ments character were Darden, supervisory power.” First, at U.S. improper. prosecution’s inquiry (internal quotations 106 S.Ct. 2464 as to Slagle whether sold to drugs children omitted). Moreover, the Supreme Court was improper. pros See JA 636. The clearly has indicated that the state courts ecution began questioning his by asking have breathing substantial Slagle room when con how money. he made This question prosecutorial sidering misconduct claims was relevant it probative because was because “constitutional line drawing Slagle any [in whether had motive to commit aggravated cases] misconduct is neces burglary robbery. In re sarily imprecise.” Donnelly, 416 sponse, that, U.S. at Slagle informed the court 645, 94 S.Ct. 1868. Our review of the when he was not working, drugs he sold to statements, challenged prosecutorial “anybody buy wanted it.” The light Supreme. precedent, of the Court’s State then inquired Slagle whether sold us that only convinces about half of the drugs to children or teenagers. By deny statements were improper ing and that these drugs that he sold to children and statements, affirming the context of a that he teenagers, would sell to strong evidentiary against Slagle, Slagle case able demonstrate that he sufficiently were not prejudi only deliberate or teenagers sold and adults. The cial to warrant a sentencing new trial or prosecution’s question was a relevant fol hearing. Supreme question The Court of Ohio low-up Slagle’s response re unreasonably therefore did not apply ap garding how he money, and allowed plicable federal law. Slagle to testimony. rehabilitate his See 611(B) (cross-examination is The also did not act R. Evid.

Ohio by asking and improperly Slagle matters whether ever “permitted on all relevant The affecting credibility”). ques- family. to his JA 638-39. matters contributed See Slagle drugs concerning Slagle’s precise challenge appeal tion sold to this whether therefore, children, improper. was not is Br. at inquiry unclear. See Petitioner’s inquiry prosecu 19. The arose from brief, Slagle his mischaracterizes In questions concerning how tion’s He prosecution’s inquiry. nature spent money from his thefts implication no states that “[t]here big to him. party” whether life was “one Pope’s to ... drug dealings were related inquiry JA 638. The concerned Rather, of- this information was murder. during mental state the time of his admit was a bad fered demonstrate ” ted thefts and thus to wheth relevant Br. person .... Petitioner’s er had similar mental state evidence; any offer prosecution did not burglary issue. instead, Slagle’s confession it elicited posing selling drugs per- without even prosecution’s inquiry into leading question. See JA missible Slagle prayed prayer whether and liked (“When you you working how did weren’t improper. was not JA 642-43. Lisa money?”). Slagle complain cannot get Bloxham, staying one of the children irrelevant question was because house, Pope’s Slagle respond testified prosecution’s question concerned prayer by up Pope’s saying, ed to “Shut condition, which was undoubted- economic I your prayers.” don’t like to hear he had a motive or ly relevant to whether Supreme 414. The Court of stat JA Ohio aggravated burglary intent to commit objected in its opinion ed objection robbery. Slagle’s instead questions religious concerning he gave. with the answer that must rest beliefs, directly court ad but that never challenges the Slagle next inquiry proper. the was dressed whether on cross-examination prosecution’s inquiry N.E.2d at 925. Slagle, 605 Slagle “ever [broken] as to whether improp not get money[,]” questions to JA These were into house but religion on permissible despite er their focus because inquiry such an was under questions supreme state these concerned whether Ohio evidence law. The made, concerning prayer question was statement court held that the State’s Not all Slagle’s general not truthfulness. proper under Ohio Rule Evidence 404(B) religious inquiries at are forbidden. Ohio because it concerned live issue states, mo “Evidence Slagle trial: had the Rule Evidence Slagle’s whether opinions or of a or intent to commit the crimes with beliefs witness tive not admissible for charged. religion 605 matters of is which he was by way showing reason of only purpose this court N.E.2d at 926. The credibility impaired im their nature his prosecution could find that acted Although proscribes this rule by determining that the state enhanced.” properly is religion impugn use of the “witness’s court Ohio evi supreme misunderstood truthfulness!,]” Red propensity towards dence law. Because we are “bound Bible Tract Soc. its own man v. Watch Tower & state court’s determination of Penn., law[,]” N.E.2d not 69 Ohio St.3d improper. the comment was (6th (1994), Straub, permits questions law con Ohio Davis 430 F.3d motive, .2005). cerning religion to show bias and Cir Redman, 677-78; sеe N.E.2d at questions State officers that night. These 94CA34, Roper, however, No. improper. prosecution, WL (Ohio 1996). Mar.22, *3 Ct.App. improperly by asking Whether did act Slagle wheth- Slagle prays prayer is at least er Slagle dislikes took the scissors from bed- slightly probative whether he would tell room after the murder so that he could up [,]” I someone to “shut because don’t like to “use them in JA 656. This [his] next — and, your prayers[,]” question and, hear as with inflammatory bias and motive, nothing there is in the Ohio rule concerning there was no issue whether precludes asking from Slagle again, would kill did not concern an concerning questions religion to determine issue of material fact in this case. probability being statement made. Finally, prosecutor asked Sla suggest The State did not that gle living whether he “was lie of [his] religious him testify beliefs would cause life when tried [he] JA 652. hide[.]” or, Redman, untruthfully inas that Sla question, This although perplexing, was gle’s “religious paramount beliefs were improper. Slagle asked the prosecutor the oath taken prior testifying.” Red clarify meant, prosecu what and the man, prosecu 630 N.E.2d 678. The tor “your answered that big life is one lie inquiry improper. tion’s was not ” .... Slagle JA 652. negatively. answered More, troubling prosecu is the prosecutor unclear, What the meant is but during tion’s statement closing argu its he appears to have Slagle asked whether ment that “had the nerve to tell [the was attempting responsibility escape ” jury] T I JA pray. pray.’ 670. This Contrary contention, his crime. improper. statement is pros Because the prosecutor stating any person was not implied any ecution without evidence that al opinion. See Petitioner’s Br. at 17. not pray, purpose does of the nothing There is puz about this appears comment to have been to inflame Thus, zling inquiry. after considering all passions jury. of the alleged assaults, of the only charactеr statements closing argu challenges also ment guilt phase concerning wheth prosecution’s question as to whether prays er Slagle and whether he would have would have police stabbed the officer in used the scissors another crime were chance, 652, the back if he had had the JA improper.1 and whether Slagle anyone “didn’t want to story be able to tell you the of what did 2. Facts Outside the Record night[,]” that JA 655. theAs state court held, appeals questions “The ... were Slagle argues next the designed to inculpatory prosecution elicit answers on argued improperly facts out issues of material Slagle, fact.” 605 side speculative the record and made com questions N.E.2d at 926. The were rele ments. Four statements were improper. vant to whether had prosecution formed the The first asked “Police Pope, children, intent to murder the or the men don’t scratch. Isn’t that a fact?” JA 1. prejudiced by also claims that he was 697-98. This reference does not fit within the prosecution’s attempt explain the felony to COA. robbery The reference to the bank by using example character, murder an of a impugn Slagle’s bank robber not as a act non- everyone factor, statutory who kills in a aggravating bank. JA 697. De- introduce facts record, successfully objected defense, fense counsel this ex- denigrate to outside the or ample a prosecution and received instruction. JA curative vouch for witnesses. Finally, prosecu- experience). the mon improper, as is 657. This statement “Pope sustaining colloquial was by tion’s assertion recognized trial court God,” 670, that is not im- objection ready “as to whether meet JA was defense’s The prosecu- a infer- JA 657. it was reasonable proper [a] not fact.” because body Pope’s Pope revealed argued tion the evidence that was nеxt ence from wounds, stab not three her holding rosary during stab praying seventeen prosecu- The Thus, claimed. challenged wounds four of the ordeal. seven told they tion that the coroner improper stated were statements body that “the outside court prosecution outside the supported not facts 69. This comment lie.” JA doesn’t speculative. record or were was re- prosecution improper because anof an statement

ferring out-of-court Nonstatutory Aggrava- Referring S. Slagle’s testi- to contradict expert witness ting Factors mony. argues that Although Slagle next these two statements

Besides by mentioning circum prosecution, record, the concerning outside crime, facts deprived him of a fair stances of the spec made two prosecution also by referring nonstatutory aggrava stated, The prosecution ulative comments. factors, ting the circumstances thing the kids didn’t good a damn “[ntfs during the sentenc crime were admissible thing 670, good JA and “It is up[,]” wake any the existence ing phase dispel Howard could didn’t know that [Slagle] prosecu mitigating circumstances. may him,” 672. Prosecutors identify JA jury weigh aggrava tion asked in the no having basis express opinions against mitigating ting circumstances Francis, 170 States record. United evidence, mentioned Cir.1999). (6th 546, specu These F.3d of the crime. See JA the circumstance improper. also were thus lative comments 834, 835-36, 833, 828, 829, 836-37. held that “[a] Court Ohio Supreme Three of the statements to the legitimately can refer prosecutor improper. challenges were and circumstances facts and the nature ex First, the State’s statement offense, any they suggestion refute alco gains tolerance to perts said that one why ag demonstrate mitigating are hol, proper because two JA outweigh mitigat gravating circumstances one prosecution experts, one fоr the at 930. Slagle, 605 N.E.2d ing factors.” defense, tolerance testified consistently supreme court has The state has over when one abused alcohol develops instance, in State v. this view. For held Second, the period time. JA 512 N.E.2d Stumpf, 32 Ohio St.3d an one can hear declaration that State’s (1987), Supreme Court of held Ohio room floor walking in another with other creak, the will boards because floorboards court, trial jury, the only requires [Ohio law] it because relied proper JA “consider, three-judge why panel or concerned knowledge and on common circum- aggravating weigh against the his shoes when he entered Slagle removed beyond a reasonable See, proved People Ack stances e.g., Pope’s residence. doubt, nature and circumstances the erman, Mich.App. 669 N.W.2d of ” case, curiam) In a (2003) particular .... the (prosecutors (per offense of- of the and circumstances infer the nature reasonable are to draw permitted impact, or mitigating may have a com- fense light of from the evidence ences (1) they they may way, not. Either must Whether the victim of the offense it; illogical [I]t be considered.... would be induced or facilitated require three-judge panel to consid- (2) it unlikely Whether is the of- er the nature and circumstances of the committed, fense would have been but in making offense its decisions whether for the fact that the offender was under aggravating the circumstances suf- duress, coercion, strong provocation; or ficient to the outweigh mitigating fac- (3) Whether, at committing the time of tors, yet panel from rely- forbid offense, offender, of a ing upon citing such nature and defect, mental disease or lacked substan- circumstances as reasons for its deci- tial capacity appreciate the criminali- sion. ty of his conduct or to conform his con- (citations omitted). Id. at 604 inAnd State law; duct the requirements of the Gumm, 73 Ohio St.3d 653 N.E.2d (4) offender; youth (1995), Supreme Court of Ohio (5) The offender’s lack of a significant held that “the fact that a particular mur- history prior of criminal convictions and instance, was, der particularly cruel or adjudications; delinquency is relevant heinous to the determination of (6) If a participant the offender was of appropriateness actually imposing a the offense but not principal offend- death sentence on a death-eligible perpe- er, degree of partic- the offender’s trator, though even the fact cruelty of ipation in the offense and the degree not, itself, heinousness would be suffi- participation offender’s in the acts bring cient to the crime within scope victim; that led to the death of the any section [Ohio Revised Code] (7) 2929.04(A), nor could that fact Any be used to other factors are relevant cause the defendant death-eligi- become the issue of whether the offender ble.” should be sentenced to death. 2929.04(B). § holding prose- state court’s that the jury “If the trial unanimous- cution ly finds, violate Ohio is entirely by proof law beyond a reasonable applicable doubt, consistent with the Ohio death- aggravating that the circumstances penalty statutes. Ohio provides spe- law guilty offender was found of commit- cific imposing criteria for ting outweigh factors, sentence of mitigating § death. See Ohio jury Rev.Code 2929.04. trial shall recommend to the court Eight possible circumstances are defined that the sentence of be imposed death aggravating circumstances death- offender.” Ohio Rev.Code 2929.03(D)(2). penalty specifications, § was con- There no reason specifications victed two under believe in this case the jury did not 2929.04(A)(7) (offense § during committed follow the statute’s Although command. aggravated rоbbery and prosecutor offense committed mentioned “ag- the word aggravated burglary). If one of gravating” recounting while some proved, crime, these circumstance is the jury then circumstances court consider, “shall weigh against gave the ag- extremely clear to the instructions gravating proved beyond circumstances identified the two aggravating doubt, the reasonable nature and circum- circumstances that were relevant to Sla- offense, stances the the history, gle’s of charac- case and that stated the circum- ter, background offender, and of the and stances of the crime that were relevant to all of following” mitigating the factors: mitigation. Trial at See Tr. 2159-62. The

521 by beyond a doubt that comments, law, proof not im- reasonable Ohio under ... aggravating out- the circumstances proper.2 in mitigating factors this weigh the Moreover, of “consideration a 55759, case.”); Slagle, v. No. 1990 State circumstance, non-statutory aggravating (Ohio 82138, Ct.App. WL at *19-20 June law, not contrary to state does if even 14, 1990); 65 Slagle, v. Ohio St.3d State Smith the Constitution.” [Federal] violate (1992). 597, 916, 605 N.E.2d 930-31 (6th Mitchell, 177, 210 Cir. F.3d v. not pre- Federal does “[T]he Constitution 2003) Florida, 463 (citing Barclay v. U.S. uphold- appellate vent a state court from 956-58, 3418, 939, 77 L.Ed.2d 103 S.Ct. part a that is ing death sentence based (1983)).3 particularly point This is improperly aggra- on an invalid or defined case, compelling in this where the Ohio by vating reweighing circumstance either Ohio, court, Appeals of the Court mitigating evidence aggravating complied Supreme of Ohio and the Court byor harmless-error review.” Clemons Ohio Revised with the mandates the 738, 741, 110 Mississippi, U.S. S.Ct. 2929.05(A) 2929.03(D)(3) §§ Code (1990). Any error 108 L.Ed.2d weigh all of the independently “review arising from the reference in the evidence disclosed facts other in this nonstatutory aggravating factors the case and consider of record the therefore, case, was devoid constitution- offender to determine fense and the import. al circumstances aggravating whether matter, Slagle a also of com As related guilty was found that the offender prosecution impermissibly that the outweigh mitigating argues factors mitting case, to consider whether other whether the sentence of caused in the people would be affected divorce All three courts appropriate.” death is But the way that was. JA 838. aggravating that the circumstances found to allow prosecution does have mitigating circumstances. outweighed (“[T]he unchal- mitigation to offer his evidence ... has found Court See JA way prevent detection as a of dem- argues prosecution motive to that the mis- also 2. onstrating that he had intent commit mur- Slagle’s stated the law when referred prosecu- trial, der. See JA 675-76. age age as opposed at the time upon ground during the rely this tion did not time the crime. See Petitioner’s Br. ground sentencing phase on which argument is well-taken. The 39. This impose penalty. death prosecution’s point was circum- outweighed aggravated crime stances Sanders, nothing We in Brown note 3. effect, mitigating Ohio Revised under - U.S. -, S.Ct. 163 L.Ed.2d 2929.04(B)(4), Slagle's youth. § See Code (2006), contrary. to the Brown concerned impliedly prosecution JA conceded 827. The an sentence when the effect on defendant’s twenty-year-old murderer that a nineteen- penalty is subse eligibility factor for death mitigating regarding benefits from the factor Supreme de quently Court invalidated. The misstating youth. law or He was not longer distinguish between so- cided no misleading jury. nonweighing when weighing and states called argument prosecu- next is that the to be eligibility factor has been held inval an - -, Brown, argued Slagle was have 126 S.Ct. at tion should not U.S. id. Instead, Supreme attempting escape detection because the 163 L.Ed.2d State, In seeking penalty propounded death rule. Sеe id. when Court uniform case, concerning rely aggrava- an statutory there is no issue did not this concerning eligibility later been held inval ting who kill to es- factor that has factor those id, not affect cape argument and thus the Brown case does This is also merit- detection. analysis. our referred to less. counsel.”) (internal lenged. nothing There is unreasonable quotation defense omitted). allowing prosecution argue to about marks that, most from people divorced statements, however, Five murder, homes do the divorce of Sla questionable were least at parents gle’s did not affect to the propriety. One impugns statement Sla Although Slagle extent that claimed. gle’s posed counsel: “[Defense counsel] Ohio, contends that Lockett v. 438 U.S. many questions you his with ‘Do re 586, 605, 2954, 98 S.Ct. 57 L.Ed.2d 973 that, Billy?’ ... keyed member He was (1978) (plurality opinion), and Woodson v. remember,” JA 688. Another state Carolina, 280, 303-304, North 428 U.S. Billy ment characterizes in an inflammato (1976) 2978, (plurality 49 L.Ed.2d 944 S.Ct. ry “Billy Slagle manner: his to kind opinion), prohibit jury from consider day represent greatest some of the threats others, ing the of divorce effect on these against community and civilization as we say only cases that individualized charac it,” know 702. Three JA of the statements required. ter evaluations are prose The prosecu belittle defense witnesses: cution in this case did not ask the Slagle’s tion’s characterization of expert ignore Slagle’s parents’ reaction to his di evidence concerning the of intoxi effects Instead, vorce. prosecution asked the cation Dr. Bertschinger from as “liberal jurors to consider the truth of Slagle’s ” 700; quack theories .... JA the prosecu alleged light common reaction of their tion’s statement that witness Mike Davis experiences. prosecution’s The reference high, was JA and “crawled out of to the effect of on divorce others was not hole,” 693; JA ex defense improper. perts “trying promote a bit of sympathy Slagle,” for JA All 682. of these Denigrating Witnesses and

L Defense witnesses Slagle’s testified to in voluntary Counsel toxication—the main issue at trial permissible way for to demonstrate argues next that his trial that he specific lacked the intent commit was rendered unfair Fox, murder. See State v. 68 Ohio St.2d that allegedly denigrated statements de (1981). 428 N.E.2d 411-12 Al fense witnesses and counsel. Five of the though prosecution free to chal six challenged statements were improper lenge the factual assertions that Davis and of questionable propriety. least experts First, level the prosecution’s comment that de intoxication or alleged depen alcohol fense was in a counsel “mad scramble dency, prosecution permitted was not point this salvage [Slagle’s] credibility” ‍​‌​‌‌‌​‌​​​‌‌​‌​​​​‌‌‌‌​‌​‌​​‌‌‌‌​‌‌​​​​‌‌‌​‌​​‌‍“know-nothing to make appeals igno was not improper. prosecu JA 691. The Parker, rance” in this case. Gall v. appropriately tion attacked credi (6th Cir.2000). Thus, F.3d for bility testimony after his complete was less purposes of this appeal, we consider five pretrial than his statements and after his the statements denigrating the defense to attorneys stipulate him aggravated been improper. have burglary. See JA 691. State permitted to comment the defense’s Vouching Prosecution Witnesses for Collins, strategy. Byrd (6th (“Case Cir.2000) F.3d law The prosecution also made permits comments that made in are re several improper vouching comments when sponse argument to the strategy prosecu- witnesses. Third, minimally prejudicial. during only were closing argument in its stated tion relatively my money improper the the statements “I on put guilt phase, the 692, Finally, improper “I the comments detectives,” very do isolated. JA homicide work,” appear do not intentional. police the JA behind much stand Chap- in 701, “I Patrolmen put our trust Slagle Strength Against 1. the Case 701, Guido,” JA Finchum and pelle and to going is not against Slagle Bloxham in this and “Howard The evidence something is you that only in here and tell The issue this strong. come case was true,” Slagle 671. These comments were lu JA case whether had sufficient prosecu- the clearly cidity, drinking smoking because improper all after alcohol and interjecting person- marijuana, requisite “must refrain from to the intent to tor form Slagle presentation [the] into the murder. That aggravated al beliefs commit Young, U.S. United States that had the intent to commit case.” conceded he (1985); see, 8-9, robbery, e.g., L.Ed.2d aggravated burglary and S.Ct. Bell, 402 F.3d that he supports jury’s finding also Bates the see JA Cir.2005). (6th testi- police officers’ the kill. The record could form intent to Slagle’s mental state tolerant mony was relevant to also reveals that alcoholics become they 608, 573; alcohol, Slagle that had time of the crime see JA at the lucidity fifteen, heavily he appearance drinking to his since was testified been 865; his immedi- able ride a interview JA that he was to the scene see house, these four bicycle Pope’s after the murder. With to JA ately two miles statements, trouble, 563; total vouching having any the JA that improper without is fifteen.4 improper statements had of mind to remove his presence number he in; thought he that he shoes when broke Factors B. Other police when the came to to hide in a closet house; respon that he was alert and in this question ease The most difficult 473; questions, JA investigators’ prosecution’s improper fifteen sive whether the his secu provide social amounted, in that he was able aggregate, comments to officers on rity number and date birth that rendered prosecutorial misconduct 472; scene, he able to fundamentally These JA unfair. Slagle’s trial and name of Mike the address tоgether provide taken improper fifteen comments Davis, 472; did not smell of that he trial unfair. We JA not render 475; alcohol, quick that he was JA by applying the four this conclusion reach him to subdue agile police tried 236 F.3d when set out factors Carter. scene, jury had First, at the crime JA 436. The against Slagle was the case 783. to find Second, enough more than evidence improper statements strong. murder, (8) (1) Slagle refer- asking remember include: comments 4. Slagle planned greatest ring threats cross-examination whether as one of murder, (2) telling civilization, (9) next characterizing use scissors against ex- say had nerve Slagle’s expert testimony witness as pert (3) prayed, asking whether it is fact theories, (10) asserting that quack liberal scratch, (4) relaying the out- do not policemen testimony was to purpose witnesses' of his lie, body does not statement that of-court (11) describing de- gain jury’s sympathy, (5) hap- speculating as what would have having crawled Mike Davis as fense witness (6) up, spec- if woken pened the children had trial, high at time of out a hole and happened if ulating would have as to what (12-15) vouching four times him, identify could knew Howard witnesses. (7) implying that defense counsel coached ability Prejudice to and did form the intent to kill. A full consideration of improper only statements demonstrates not that Slagle’s compelling most evidence that they in minimally prejudicial the con- requi- he was to form too intoxicated Slagle’s they text of also that but are site intent was failure to remember his degree not similar in to improper events. But even this evidence was not statements in other cases that we have his to in- convincing because statements held, review, on habeas trials rendered testimony his vestigators differed from at Thus, fundamentally unfair. the second investigators trial. He told the that he support granting Carter factor does not basement, entеred into the where he took Slagle’s petition. shoes, looking something off his to for improper Of the fifteen statements 464. steal. JA He then went to the room issue, questions at counsel helped sleeping. where the children were JA 464. mitigate prejudice successfully to investigators He then told the that he was objecting to nine of the comments. De- attempting something Pope’s to steal objected fense counsel to both bedroom when woke up she screamed. questions examination, on posed cross con- He said that put he his hands over her it cerning policemen whether is a fact that mouth, they began fighting her Slagle scratch and whether would have sewing thought scissors. He that he used the scissors another crime. De- Slagle stabbed her three times. JA 464. objected following fense counsel also to the that attempted rape also said he had to during statements closing argument Pope get but that he was unable to an lie, guilt phase: body does not trial, however, erection. JA 468. At his Slagle if would have killed Howard testimony contrary to some his Slagle had known Howard could iden- investigators. to He statements testified him, tify that defense counsel cued walking he did remember into the remember, not to that Mike Webb was basement, JA and he remembered high, greatest was the threat to only once, stabbing her JA 628. He also civilization, that the defense witnesses’ testified that try- he remembered neither purpose gain jury’s sympathy, was to to ing rape investiga- her nor telling and that Bertschinger Dr. on “lib- relied tors that he attempted had do so. JA eral quack objec- theories.” The four last cross-examination, tions, Even his objections well as the two story changed. cross, his questions posed When asked what he on concerned four comments, prejudicial said to the most Pope began pray, when she and all he objections stated, thesе “I led to curative instruc- saying nothing don’t remember from objec- tions the trial court. These her.” prosecu- JA 642. But when mitigated tions and instructions much him up, tion if asked he told her shut he the prejudice Slagle. stated, saying “I don’t remember much.” JA 642. The inconsistencies in had objec- Even there been no defense Slagle’s testimony provide an additional tions, many only of these statements were basis, in addition the numerous facts minimally First, prejudicial. the state- recounted, already for the to find ment body that the does not lie im- beyond a that Slagle reasonable doubt proper because the stated that night formed the intent kill an expert witness had the statement murder. outside of court. if But counsel had testi- up, to woke JA as one of own the statement phrased gone had into the children’s that he fied that had Slagle’s assertion contradict bedrooms, 618-19, times, com- only JA there is least three Pope stabbed improper. support in the record for an infer- not have been some ment would pointing out that merely that others been dan- prosecution was ence would have evidence contradicted noticed their conscious physical ger testimony. presence.

Second, Mike comment that witness the in Finally, improper the this comments out of hole high and crawled Davis was nearly as as egregious case are not those considering minimally only prejudicial was in court in cases which this has other mari- smoking admitted to that Davis had application a court’s fed- reversed state Furthermore, Slagle drinking. juana regarding prosecutorial miscon- eral law that argued it was his lowlife friends that (6th Bell, 402 duct. In Bates v. F.3d his downfall. See JA part Cir.2005), petition- this court reversed the (defense Bertschinger Dr. witness expert egregious sentence because of er’s death being after a suc- testifying that during the sen- prosecutorial misconduct prоblems behavior student without cessful in The that tencing hearing. prosecutor school, into drugs to fit turned to high jurors that the repeatedly case stated (Dr. group), 865 Isidore peer his social for death for someone else” “[vote] would psychological evaluation Helfand’s 1986 they the if did vote condemn defen- court), juvenile for the Ohio Bell, F.3d at 642. The dant to death. Glenbeigh Hospital told (Slagle’s mother repeatedly for prosecutor then vouched crowd”). part was of a “bad that her son de- denigrated witnesses and prosecution mitiga- who testified at the fense witnesses Third, it was question as whether hearing example, for that by saying, tion can do not scratch policemen a fact ex- prosecution’s [the “I don’t care what hardly prejudicial be deemed really I says. Marshall don’t pert witness] question. rested in the form of error expert mitigation care wit- [defense what following improperly prosecutor, The I all says. don’t care at what Griffin ness] question, question rephrased formed really, Peters or Mr. counsel] [defense asking, “Is it not objection by without says Mr. Bean counsel] what be- [defense Pope opposed police fact that ... [as true, I I this to be cause believe you you as gouged scratched officer] at you share the same belief.” Id. believe 657. fought for her life?” JA she repeatedly criti- prosecutor 645. The also most, was, minimally only prejudi- error at at objecting. for See id. cized the defense Slagle. cial to Fourth, con- speculative comments Bates, First, prosecu- in contrast if

cerning happened have what would nearly did not make if had tion in this case up children had woken improper com- many egregious him or such identify that Howard could known such com- ments, any it not make These highly prejudicial. were also not Second, during penalty phase. ments guilt comments were made repeatedly tell the prosecution did not trial in narrative form phase cause another to be jurors they would from the facts were close to inferences they if to sentence Sla- murdered refused Detective John McKib- the trial. Because Although prosecution gle him that “ev- to death. told ben testified closing Sla- Pope improperly once stated erything just got out of hand” when gle community threat to the great was which the defendant had been involved. implied and once examination that This comment no cross had basis fact because committed future crimes Slagle would have the defendant had been actually attacked. Moreover, caught, with had he not been this especially the scissors comment was prejudicial considering fight trial court in case sustained that the objections defense counsel’s and told the the same kind for of incident which the Third, jury disregard facing both comments. defendant was penalty, the death any prosecution only ground also did not make and that the defendant’s improper regarding mitigation mitigation always comments been a any topic, person. Third, experts, regarding law-abiding other dur- See id. at 749. ing sentencing hearing. prosecu- any told sen- tion’s that a pa- comments defense tence less than could death result expert quack relied witness on “liberal the- role. See at 747. id. ories” experts’, purpose and that the other contrast, In again no com- improper sympathy Slagle

was to create were ments were in Slagle’s made case during only each, during guilt made once the trial, sentencing phase the Slagle of trial, phase gave of and the trial court a has not challenged any prosecutorial con- curative instruction both times. has duct as violating independent an constitu- why offered no reason improper these ground. Donnelly, tional 416 U.S. at not comments could bе cured with the trial (distinguishing, in S.Ct. 1868 a instruction, especially considering court’s case, prosecutorial misconduct cases “in that the comments were made weeks be- which the State has denied defendant the Fourth, vouching fore sentencing. the specific provision benefit of a of the Bill of nearly comments in as this case were not prosecution’s The Rights”). statements of egregious prosecu- as those in The Bates. facts outside the record in this case were jurors in Slagle’s tion case never told the inflammatory much less in than DePew. they implied what believed or that reach- The in comments this case concerned ing a belief in the absence of evidence from scratch, whether policemen whether the party either was sufficient to return a body lie, not speculative does com- Bates, Finally, death in sentence. unlike concerning ments the crime in question. denigrated no comments the defense for DePew, The facts outside of the in record Overall, objecting. timing the content and however, misleading were concerned improper comments in this case events that were not relevant to the crime prejudicial during were not as those the as Finally, at issue. there is no in evidence penalty phase in Bates. case that prosecution this the told the in Slagle’s The comments case are also that a only way sentence of death was the nearly not in egregious as as those DePew to prevent being paroled. from The Anderson, (6th Cir.2002), improper 311 F.3d 742 during guilt comments made the to which in brief. In in phase refers of trial only case were not DePew, prosecutor minimally the made im- almost prejudicial, several all but the proper during sentencing comments the nearly comments were also not as prejudi- First, phase of trial. cial as in prosecutor, penalty the in thе comments made the phases of in the violation the Fifth and Fourteenth two cases on which he relies. Amendments, commented the defen- Isolated or Extensive Comments testify sentencing dant’s refusal to Second, hearing. pros- isolated, See id. at 750. All of the comments were ecutor fight repeated objection. commented on knife none an after objections. defense

Thus, factor does not successful See id. third Carter All comments petition. vouching support granting only were the minimally comments men- prejudicial extensive, arguably comments that are but immediately preceding dis- in the tioned well not prosecution may have realized once, only and the cussion were mentioned improper argu- comments the heat of its preju- more than minimal with comments objec- because there was no defense ment only also made once. dicial harm were Moreover, improper statements tion. instance, the comment For strategic in this do not reveal a covert case testify prayed that he a lot of nerve use, repeated emphasis. for the sake only purpose ap- its prejudicial any prosecution repeat passions to be inflame pears improper during sentencing comments per- nonreligious jury against potentially phase id. The trial. See made But this comment was also son. therefore, inten- appear, does have guilt phase only pnce, during tionally comments present- the facts prosecution narrated Slagle’s trial. vouching Only comments ed trial. extensive, these, arguably but even of are Application C. Conclusions comments, from one only four such there were Two-Prong Test each, closing argument sentence pages of trial tran- that consumes over Analysis of the four Carter Bates, in prosecution the script. Unlike factors demonstrates repeat here not certain prosecution the did fundamentally not unfair at was rendered after or commit the same error tag lines guilt phase. or sentencing either the Bates, objection. 402 at 648. an F.3d of “Overwhelming guilt evidence of can comments not extensive The fifteen sufficient sustain convic tentimes be during comprises trial that over 1000 this miscon despite prosecutorial some tion transcript, and the of trial therefore pages Bates, 648-49; duct.” 402 F.3d at see also pro- was “so misconduct not prosecution’s Darden, 182, 106 2464 477 U.S. at S.Ct. persistent that it permeate[d] nounced and (“[T]he sup ... overwhelming evidence atmosphere of the trial so the entire ... port finding charges of on all guilt prejudice probably to the defen- gross as jury’s the deci the likelihood that reduced Pitcher, 959, 117 F.3d dant.” Pritchett (cita by argument.” sion influenced (6th Cir.1997) (internal quotation omitted)). There can quotations tions omitted). citations marks and that the evi question no in this case be overwhelming. Slagle’s guilt of dence Com- Accidental Intentional k. of evi the our earlier consideration As ments shows, evi jury had extensive dence the in Finally, prosecution’s the comments Slagle had the from which to find dence appear intentional because this case do not aggra commit ability to intent to form the improper prosecution repeat its case, despite In this vated murder. Therefore, the fourth Carter comments. dur misconduct presence of support granting Slagle’s factor does trial, it was not guilt phase of the ing Bates, in the prosecution petition. Unlike to hold for the Ohio courts unreasonable argument use improper in this case did not jury influenced was not Bates, “repeatedly during summation.” in find prosecution’s improper comments also did prosecution at 402 F.3d Slagle guilty of murder. improper ing conduct after not continue his 52

Furthermore, improper com Supreme Court Ohio did not during phase guilt ments did not taint unreasonably apply federal law in deter- sentencing phase the trial because mining that the prosecution’s improper all improper were only comments statements did not render Slagle’s trial minimally prejudicial. Considering that fundamentally in unfair violation no improper com Federal Constitution. during sentencing phase ments of trial y. produced mitigation which evi Darden, dence, 477 U.S. at 183 n. see claims ineffective assis (“In case, this S.Ct. 2464 the com tance of counsel fail cannot guilt-innocence ments at the were made demonstrate that defense alleg counsel’s trial, stage greatly reducing chance edly representation preju unreasonable they any at all effect on sentenc diced him. Slagle claims that defense ing.”), only and that few of the comments counsel, at both trial and on appeal, failed could arguably directly even relate to the object prosecutor’s improper sentencing, matters at the prosecution’s comments and use nonstatutory aggra guilt phase comments vating factors. correctly The Ohio courts “ of trial did not ‘constrain the manner in relied on v. Washington, Strickland which give was able to effect’ to U.S. 104 S.Ct. 80 L.Ed.2d 674 mitigating evidence” violation of the (1984), in considering Slagle’s claims for DePew, Eighth Amendment. 311 F.3d at ineffective assistance of counsel. See Sla 748 (quoting Angelone, Buchanan v. gle, 928; N.E.2d 1990 WL 269, 277, U.S. 118 S.Ct. 139 L.Ed.2d *16. Constitutionally ineffective (1998)). Moreover, any confusion was requires assistance counsel both that ample ways. cured The trial court gave defense counsel’s services fell that of below proper, clear regarding instructions sen reasonably competent attorney and that See, tencing. e.g., Trial Tr. 2159-62. The deficiency the prejudiced the defendant. defense made the first and closing last Strickland, 466 U.S. at S.Ct. arguments See, sentencing hearing. at the We have examined the comments to which e.g., JA 840. The defense made nu objections no at trial or on challenges ap objections guilt merous the phase peal and determined that the

received curative instructions. The de Ohio have applied courts not unreasonably fense also had opportunity the to call the federal in holding law that Slagle’s trial same experts during sentencing phase the was not fundamentally rendered unfair. mitigation offer Finally, evidence. We have also that prosecu determined the perhaps importantly, most there was an alleged tion’s use nonstatutory of factors approximately delay three-week between and, were, was not improper even if it guilt phases the and penalty of the trial. not unconstitutional. Because the failure Any cumulative of improper effect the object to these actual and im alleged minimal comments was during sen proper statements not prejudice Sla- tencing phase Slagle’s of trial and there gle, his provides fore ineffective-assistance-of-counsel holding no for basis that claims fail. Slagle’s trial was rendered fundamentally unfair. VI.

As foregoing discussion demon- strates, an analysis pertinent of the Finally, deny untimely factors we as Sla- for prosecutorial gle’s misconduct request demonstrates that we extend his COA prosecutor consistently that Slagle’s argu- issues. evidence include additional throughout pushed envelope Slagle’s in denying his court erred ment that this trial, repeatedly is tanta- overreached COA request for an extended of conduct proper prosecutorial court for re- bounds petitioning this mount But, present- witnesses questioning when application. on hearing his COA closing arguments. rehearing ing improper for petition his failing to file prosecutorial Janu- comments included attacks days this court’s within fourteen denigrations character and application, his ary denying order attorneys In satisfy requirements and witnesses. addi- Slagle failed tion, prosecutor made assertions of Procedure Appellate Rule Federal 40(a)(1). record and vouched no for the facts outside trial offers excuse Slagle deny request. pervasive- for witnesses. The we his delay, and therefore improper prosecutorial these

ness VII. in number and sub- statements —both repeat- ject them worth matter —renders reasons, AFFIRM foregoing we For ing. majority I it concur with court and judgment of the district to: prosecutor request Slagle’s untimely extend deny (1) ‍​‌​‌‌‌​‌​​​‌‌​‌​​​​‌‌‌‌​‌​‌​​‌‌‌‌​‌‌​​​​‌‌‌​‌​​‌‍during closing arguments COA. state to tell the Slagle had the nerve MOORE, KAREN Circuit NELSON (“J.A.”) at prayed, Appendix Joint dissenting. Judge, (Trial 1810); Tr. I that the Because believe (2) took the scis- insinuate Billy guilt-phase

misconduct from that he could use sors the scene so the trial that the Slagle’s trial so infected (Trial crime, them his next J.A. at process Slagle’s due misconduct violated 1767); Tr. at I rights, respectfully I dissent. believe (3) ... “and his kind state that Supreme Court of Ohio’s conclusion greatest threats represent some despite fair received community civilization we against prosecutorial misconduct constituted an (Trial 1923); it,” at 702 Tr. at know J.A. clearly estab application unreasonable (4) impugn Slagle’s by suggest- counsel specifi Supreme precedent, lished Court keyed in not to ing “was States legal principles United cally (Trial remember,” at at 688 Tr. J.A. 1038, Young, 105 S.Ct. 84 470 U.S. 1841); (1985),Donnelly v. 1 L.Ed.2d DeChristofo (5) expert Dr. impugn Slagle’s witness ro, 94 40 L.Ed.2d 416 U.S. S.Ct. who about the ef- Bertschinger, testified States, (1974), Berger v. 431 United intoxication, characterizing by fects 629, 79 L.Ed. 1314 295 55 S.Ct. U.S. testimony as “liberal Bertschinger’s (1935). you ... of how should quack theories behavior,” at I. REPEATED- 700 THE PROSECUTOR a J.A. person’s excuse (Trial 1918); MADE Tr. LY IMPROPER STATE- at MENTS (6) Slagle’s lay impugn Mike witness high by that he was asserting thе fif- Davis majority’s I view that share the (Trial testified, Tr. he at 664 it J.A. statements that con- when teen 1798), that had “crawled out fact im- he improper were in at cludes were (Trial 1906); hole,” at Tr. at rich J.A. 693 transcript is with proper., The trial 530

(7) Slagle’s expert First, state that I witnesses believe several additional prose- cutorial “trying promote sympa- improper. were a bit of statements were To (Trial begin, emphatically I thy disagree at with the Slagle,” for J.A. 682 Tr. at majority prosecutor’s interroga- 1833); tion of in engaged prayer whether (8) assert “Policemen don’t scratch. prayer “A proper. person’s liked was (Trial that a fact?” at Isn’t J.A. Tr. beliefs, superstitions, or affiliation awith 1768); at religious group properly is admissible (9) state that the coroner had told the an probative where issue in a criminal prosecution out of court that “the body prosecution.” United Beasley, States (Trial lie,” doesn’t J.A. at 693 Tr. at (11th Cir.1996) F.3d (emphasis 1906); added). I struggle comprehend how the (10) can majority questions insinuate that would believe these have probative any in issue sleeping upstairs harmed the children at prosecution. majority’s assertion that killing by the time stating prosecutor’s questions about Slagle’s good thing “[I]t’s damn the kids didn’t relationship prayer with “concerned (Tri- wake up. God forbid.” J.A. at [the whether victim’s] statement concern- 1810); al Tr. at ing prayer made” simply sup- (11) again that Slagle insinuate would ported by record, im- these by stating have harmed the children “It proper statements were made after those good thing is a [Slagle] didn’t know that questions were asked and answered. him,” identify Howard could [Bloxham] upon previous Based testimony (Trial 1813); at at J.A. Tr. the Bloxham children Pope (12) vouch for the police work this prayed during Slagle’s attack and that during closing argument case by stating, response, Slagle had up” told her to “shut put “I my money on the homicide detec- and that he didn’t want to heаr her pray- tives,” (Trial 1905); J.A. at 692 at Tr. ers, (Trial 1222), J.A. at 414 Tr. at J.A. (13) by vouch for police work stat- (Trial 1239), Tr. at it not improper ing, “I very do much stand behind the prosecutor for the ask if those work,” (Trial police J.A. at 701 Tr. at events occurred. The clearly record indi- 1920); cates, however, prosecutor per- sisted prayer-themed with this line (14) for police by vouch work stat- questioning asking Slagle after if the ing, put “I our Chap- trust Patrolmen made, above statements were and after Id.; Guido,” pelle and Finchum and Slagle testified remember (15) vouch witness Pope whether prayed what he said to stating, “Howard is not going Bloxham her in response her praying. J.A. you come in here and tell something (Trial 1753). prosecutor Tr. at (Trial true,” that is not at J.A. 671 Tr. at question continued to prayer on this 1812). theme, away turning from of the events Beyond agreement our that all fifteen of Pope’s killing generally questioning and these clearly improper statements were Slagle, American, who is a Native at J.A. statements, my analysis (Trial of 1692), 583 Tr. at about his habits Slagle’s prosecutorial misconduct claim de- feelings regarding prayer. prose- The parts majority’s from the in several crucial cutor suggested, prayers, “You don’t like ways, necessitating my you, do Billy?” Slagle dissent. responded, “There You can’t eliminate eliminator. prose- The conscience them.” wrong with nothing has not He no conscience.” with, say what is there. ‘You don’t responded cutor (Trial 1836). at responded Tr. them; J.A. at to which right?”, attorneys did Slagle’s affirmative. Slagle’s cross examina- Similarly, during judge requested object, but the not tion, repeatedly used the prosecutor Slagle re- answer and Slagle clarify his life,” 644-45, at your “the lie J.A. phrase of them[,]” “I have al- say “I sponded, 1763). (Trial 1755-56, The Tr. at third (Trial Tr. at 642^13 ways them.” J.A. said phrase, used that Sla- prosecutor time the 1753-54). his yet to abandon Unwilling at it, meant and the gle asked what he prosecutor prayer-themеd questions, with “Your life has responded prosecutor questioning, line of embarked on another (Trial at 652 big lie, right?” J.A. been one say- Slagle “[y]ou sure weren’t asserting 1763). Slagle’s Tr. counsel did not ob- you up when were ing [your prayers] ject. marijuana” ... in beer your neck that Slagle statements prosecutor’s The on drinking your beer “you were when “has and that his whole no conscience” Pope. Id. at before he killed afternoon” big highly lie” were “life has been one spe- The were not improper. statements prosecutor’s prayer-themed All of any incon- cific or references questions religious references subse- questions testimony, rather Slagle’s but sistencies he did not quent to statement they blanket assertions were response to Pope or his praying remember who could not be person was a terrible probative The nature improper. that were on character assaults Sla- trusted. These stopped there. questioning line of of this they represent- gle improper were practices beliefs and religious own beliefs, personal which prosecutor’s ed the any bearing legiti- “had whatsoever no trial. may into the not be introduced mate the case. Whether issue 8-9, Young, 470 U.S. United States v. prejudicial, [were] statements] [these] (“Defense counsel, like S.Ct. jury to consider [they] clearly invited interjecting from prosecutor, must refrain Prosecuto- religion as relevant. somehow his presentation personal beliefs into grave such miscon- cannot rial zeal excuse case.”). Slagle decided testi- Given that Goldman, duct.” United States prosecutor for the fy, improper “it was Cir.1977). (1st “Injection F.2d 504-05 credibility. improprie- question flatly wrong into case was religion in which ty [he] from the manner stems public right has a contrary to what were not prosecutor’s attacks did so. prosecutors.” expect government before the on evidence expressly based Cartagena-Carrasquillo, States v. United Francis, 170 F.3d jury.” United States Cir.1995). (1st 706, 713 70 F.3d (6th Cir.1999). “These utterances in front placed personal sentiment religiously improper In this addition to no or indication explanation with it was also interrogation oriented Id. evidentiary improper.” bases to state dur- prosecutor for the lacked a ing closing argument II. THE PROSECUTOR’S attempt apparent In conscience. an COMMENTS IMPROPER alcohol and Slagle’s theory rebut FLAGRANT WERE day marijuana ingested that he had dismayed by the I and prose- am bewildered culpability, the had diminished a received Slagle that asserted, majority’s conclusion Slagle a “Billy didn’t need cutor 532 despite presented trial di widespread jury,

fair these and dence not to the but him verse attacks on and his prosecutor, supports known to the defense, improper vouching well as as the charges can against the defendant and majority’s state’s witnesses. The jeopardize right thus the defendant’s to be all” of the improper claim that “almost solely tried on the of the basis evidence “minimally prejudicial” comments were (2) presented to the jury”; prose- and “the 18). (Majority Op. incredible. at After opinion cutor’s with it the imprima- carries considering four factors relevant may tur the Government and induce im determining flagrancy —whether jury to trust judgment Government’s proper comments “tended to mislead rather than its own view of the evidence.” defendant,” jury or prejudice the whether 18-19, Young, at 470 U.S. 105 S.Ct. 1038. the improper comments “were isolated or and, insinuations, “[IJmproper suggestions, extensive,” “whether remarks were de especially, personal assertions knowl- made,” liberately accidentally or edge weight apt carry against are much strength Slagle’s guilt— of the evidence of they properly the accused when should persuaded I am improper thesе state carry Berger, none.” 295 at 55 U.S. flagrant, and ments were constitute 629. S.Ct. Bell, harmless error. Bates 402 F.3d — (6th denied, prosecutor’s Cir.), vouching While the and bol- cert. U.S. -, stering prejudicial, 126 S.Ct. comments were 163 L.Ed.2d (2005). Instead, I prose- believe that the prosecutor’s most vile of the statements Slagle cutor’s attacks on repeated and his Slagle’s religious were the attacks on prac- case, improper defense as well as the bol- tices cross examina- case, stering of the state’s “so infected the tion and the closing argument. state’s trial with as to unfairness make the result- prosecutor That the a religiously utilized ing conviction a process.” denial of due throughout Slagle’s oriented narrative Donnelly DeChristoforo, 416 U.S. at prejudicial increased the nature of these S.Ct. Slagle’s religious attacks on A beliefs. prosecutori- review of the record reveals a

Many prosecutor’s as- whereby prosecutor al repeated- theme likely saults and references were to mis- ly Mari Anne as a Pope described devout prejudice lead the the defendant. Christian, vouching portrayed Billy Slagle statements and assertions of as present facts outside the record at nonbeliever least believer dubious faith.1 (1) dangers: impression prosecutor two “the that evi- The returned to this theme (Trial 1040) 1753) (stating (accusing 1. See J.A. at Tr. at for a second time during opening Pope assault, statements that "was destroying Pope's rosary during the woman”); (Trial deeply religious at J.A. asserting doesn't like and doesn’t 1151) (questioning at Pope's Tr. cousin (Trial 1810) say prayers); J.A. at 670 Tr. at (Trial Pope's rosary); detail about J.A. 386-87 (stating during closing arguments Pope 1160-61) (eliciting testimony at Tr. from woman,” very religious Pope "was a Pope's Pope wearing witnessing about cousin God, ready Billy going "was to meet (Trial 1190) scapular); her J.A. at 403 Tr. at him”); (stating to send her to meet Id. (eliciting testimony rosary, about "the broken you, pray, "had the I nerve tell 'I chain, scapular” the tom the torn at the (Trial ”); 1814) (stat- pray.' J.A. Tr. at scene); (Trial 1752) crime J.A. at 641 Tr. at ing Pope praying, praying "is and she is (accusing Slagle tearing Pope's rosary up life”); 1923) (Trial for her J.A. at 702 Tr. at floor, throwing asking Slagle it on the if (referring prayer Pope’s one last acts is, rosary asking he knows what a earth”). "to do on this Catholic); (Trial if he is a J.A. at Tr.

533 improper the number of state- Slagle for terms of argument, chiding closing his in of im- ments as well as the breadth that he examination stating on cross improper references. con- proper “[T]he prayed. comment,” not to one or duct was isolated these narratives about either of Whether Bates, argument.” “one section of the Pope and and habits religious beliefs prosecutor improp- 402 at 648. The F.3d utterly irrele factually correct is Slagle is erly Slagle his attacked and intoxication issue at the heart to the central vant possible every angle. defense from voluntary trial —whether nature of the statements and marijuana from alcohol and intoxication transparency of the strat- prosecutor’s requisite having from prevented egies evidence that statements were aggravated murder when intent for (stating deliberately. Id. Despite the irrele Pope. killed Mari Anne “intentionality prosecutor’s improp- Slagle’s religious and victim’s vance their remarks can be inferred from er trial, this ultimate issue practices to use”). strategic These were statements theme pursued this persistently prosecutor trial,” in a remark[s] not “off-hand heated Slagle as nonreli attempt portray in his “opted to se- prosecution but rather religion. While hostile to gious and arguments inappropriate lect use issues, reli any material these probative repeatedly,” questioning them both when highly were giously oriented statements during closing arguments. witnesses oriented at religiously These prejudicial. Id. to the appeals brazen tacks majority’s I Finally, do not share predilections or biases jury’s religious overwhelming evi- there was belief that likely jury. to inflame the See United when enough dence that sober (6th F.2d 1046 Grey, v. 422 States possessed Pope that he the neces- he killed Cir.1970) preju (stating appeals murder. sary aggravated intent commit are “foul blows” tolerated dices record, I believe my From review the Ber applying courts and United States question a much closer than that this was Heller, F.2d v. United States ger); pre- presents. The defense majority Cir.1986) (11th (stating “Slagle undisputed testimony that sented religious prej jury’s racial and appeal beers, probably had at least more impartial decision- “prevents udices bourbon, or 5 shots that he both the Sixth Amendment making marijuana the 12 smoking that he was require.”); fair play and fundamental immediately preceded the period hour Cambra, n. 5 204 F.3d Bains (Trial 1698). Tr. crime.” J.A. at Cir.2000) (9th that, (stating “although per arrived at the crime The detectives who racial to a lesser extent” than haps shortly killing described after the scene arguments, “religion-based ethnic-based at 474 eyes. J.A. having glassy arguments prohibit are also 1428). (Trial cred- Slagle presented Tr. at law”); clearly under established federal ed that, testimony accounting even expert ible Cabrera, 222 F.3d United States alcoholism, Sla- history teenage his Cir.2000) (9th racial, (“Appeals to eth at the time level of intoxication gle’s nic, religious prejudice during judg- his impaired to have likely crime was Fifth violate defendant’s course of a trial reason, ability to undermin- ment and trial.”). fair right to a Amendment argument he had ing an aggravat- to kill that specific intent statements improper prosecutorial J.A. at extensive, requires. conviction ed murder Slagle’s trial were also 534 (Triаl 1698-99); 272, 281, Tr. at J.A. at 611- U.S.

589-90 118 S.Ct. 140 L.Ed.2d 1720-21) (Trial (1998) (expert testimony- 12 (plurality Tr. 387 opinion) (stating that stating highest functions of “the to the extent that defendant’s life interest brain,” observe, “the including ability greater require procedural would protec- ability judgments, to make the ability capital cases, tions in noncapital versus insight into are have situations” the first such distinctions primarily “are relevant intoxicated). trial”). functions to be when lost Slagle’s prosecutor struck a multi- blows, against tude of foul Slagle as a Furthermore, even in circumstances defendant, person a engaging a a against where case defendant “was panoply tactics to obtain his relatively straightforward strong,” we capital conviction. These blows “so infeci> granted have habeas relief to defendant ed the trial with unfairness as to make alleging misconduct where resulting conviction a denial pro- of due “egregious inflammatory nature of Donnelly cess.” DeChristoforo, v. 416 arguments prose- the behavior and U.S. at 94 S.Ct. 1868. I re- would throughout trial” cutor leaves us “with verse judgment denying the district court’s ‘grave prosecuto- doubt’ as to whether the Slagle habeas relief his prosecutorial injurious rial errors ‘had substantial misconduct claim. I respectfully dissent. effect in determining influence ” Million, jury’s Boyle verdict.’ v. (6th Cir.2000) 711, 717, F.3d (quoting Abrahamson, 619, 638,

Brecht 507 U.S. (1993)). S.Ct. L.Ed.2d 353 conviction,

In pursuing Slagle’s the prose- egregious

cutor’s behavior so in-

flammatory grave that I have doubts about integrity and fairness ‍​‌​‌‌‌​‌​​​‌‌​‌​​​​‌‌‌‌​‌​‌​​‌‌‌‌​‌‌​​​​‌‌‌​‌​​‌‍of NICSAND, INC., Plaintiff-Appellant, and resulting conviction.

III. THE PROSECUTORIAL MIS- COMPANY, 3M Defendant-Appellee. SLA- CONDUCT DEPRIVED

GLE OF A FAIR TRIAL No. 05-3431. “may A prosecutor prosecute with ear- United States of Appeals, Court vigor indeed, prosecu- nestness and [the — Sixth Circuit. should Berger, tor] do so.” U.S. at prosecutor “may S.Ct. 629. A strike Argued: Jan. 2006. blows,” liberty hard but “is not at to strike Aug. 8, Decided and Filed: foul ones. It prosecutor’s] is as much [the duty to refrain from improper methods produce

calculated to a wrongful conviction every

as it is to legitimate use means to

bring just about a one.” Id. The need for prosecutor respect boundary be-

tween hard and foul perhaps blows is nev- important prosecu-

er more than when the

tor seeking capital conviction. See Woodard, Adult

Ohio Parole Auth. v.

Case Details

Case Name: Slagle v. Bagley

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 8, 2006

Citation: 457 F.3d 501

Docket Number: 04-3490

Court Abbreviation: 6th Cir.