Lee v. Kemna, 534 U.S. 362, 9 (2002)

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Opinion of the Court

After a brief further exchange between court and counsel,2 the judge denied the continuance request. The judge observed:

"It looks to me as though the folks were here and then in effect abandoned the defendant. And that, of course, we can't—we can't blame that on the State. The State had absolutely nothing to do with that. That's—it's too bad. The Court will not be able to be here tomorrow to try the case." Id., at 22.

Counsel then asked for a postponement until Monday (the next business day after the Friday the judge was to spend with his daughter in the hospital). The judge denied that request too, noting that he had another case set for trial that day. Ibid.

In a final colloquy before the jury returned to the courtroom, defense counsel told the court he would be making a motion for judgment of acquittal. The judge asked, "You're going to give that to me . . . orally and you'll supplement that with a written motion?" Counsel agreed. Id., at 23.

When the jurors returned, defense counsel informed them that the three witnesses from California he had planned to call "were here and have gone"; further, counsel did not "know why they've gone." Id., at 25. The defense then rested. In closing argument, Lee's counsel returned to the alibi defense he was unable to present. "I do apologize," he said, "I don't know what happened to my witnesses. They're not here. Couldn't put them on on the question of alibi." Id., at 26. The prosecutor commented on the same gap: "Where are those alibi witnesses that [defense counsel] promised you from opening[?] They're not here." Id., at 27.

2 Responding to the court's questions, Lee's counsel said he had copies of the witnesses' written statements and their subpoenas. App. 20-21. Counsel next began to describe the subpoenas. When counsel listed Gladys Edwards, the court asked "[i]s she the mother?" Id., at 21.

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