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00-6933 Lee v. Kemna

By: dmc-admin//January 28, 2002//

00-6933 Lee v. Kemna

By: dmc-admin//January 28, 2002//

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Three considerations, in combination, lead to the conclusion that the asserted state grounds are inadequate to block adjudication of Lee’s federal claim.

First, when the trial judge denied Lee’s motion, he stated a reason that could not have been countered by a perfect motion for continuance: He said he could not carry the trial over until the next day because he had to be with his daughter in the hospital; he further informed counsel that another scheduled trial prevented him from concluding Lee’s case on the following business day. Although the judge hypothesized that the witnesses had abandoned Lee, no proffered evidence supported this supposition.

Second, no published Missouri decision directs flawless compliance with Rules 24.09 and 24.10 in the unique circumstances of this case – the sudden, unanticipated, and at the time unexplained disappearance of critical, subpoenaed witnesses on what became the trial’s last day.

Third and most important, the purpose of the Rules was served by Lee’s submissions both immediately before and at the short trial. As to the “written motion” requirement, Rule 24.09 does not completely rule out oral continuance motions, and the trial transcript enabled an appellate court to comprehend the situation quickly. As to Rule 24.10, two of the Rule’s components were stressed by the State. Missouri asserted, first, that Lee’s counsel never mentioned in his oral motion the testimony he expected from the missing witnesses, and second, that Lee’s counsel gave the trial court no reason to believe that those witnesses could be located within a reasonable time.

These matters, however, were either covered by the oral continuance motion or otherwise conspicuously apparent on the record. Thus, the Rule’s essential requirements were substantially met in this case, and nothing would have been gained by requiring Lee’s counsel to recapitulate in rank order the showings the Rule requires. The case is therefore remanded for adjudication of Lee’s due process claim on the merits.

Vacated and remanded.

Local Effect: The decision is consistent with Seventh Circuit law, which has recognized that a denial of a continuance can be a due process violation for which federal habeas corpus review is available. Bell v. Duckworth, 861 F.2d 169, 170 (7th Cir. 1988).

Ginsburg, J.; Kennedy, J., dissenting.

Certiorari to the United States Court of Appeals for the Eighth Circuit, 213 F.3d 1037.

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