Lee v. Kemna, 534 U.S. 362, 20 (2002)

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Cite as: 534 U. S. 362 (2002)

Opinion of the Court

Three considerations, in combination, lead us to conclude that this case falls within the small category of cases in which asserted state grounds are inadequate to block adjudication of a 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. The judge said he could not carry the trial over until the next day because he had to be with his daughter in the hospital; the judge 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, id., at 22, he had not "a scintilla of evidence or a shred of information" on which to base this supposition, 213 F. 3d, at 1040 (Bennett, C. J., dissenting).12

12 The dissent suggests that Lee's counsel decided not to put on the alibi defense promised in his opening statement because the prosecution's witnesses caused that planned defense to "collaps[e] altogether." See post, at 402. The record refutes that suggestion. Lee's counsel knew before he promised an alibi defense in his opening that the State planned to rebut it: The prosecutor's opening statement—given prior to defense counsel's— outlined the rebuttal witnesses' expected testimony. Tr. 178-187. Likewise, the prosecutor's statement that she "had in reserve other witnesses prepared to rebut the alibi testimony," post, at 403, was part of her opening statement, see Tr. 187. Furthermore, the alibi witnesses would have known of Lee's sentence in an unrelated case—a fact that the dissent suggests gave them "second thoughts" about testifying, post, at 403—a month before they traveled to Missouri. Tr. 25-26.

Utterly confounding are the dissent's depictions of "the realities of trial," post, at 400, capped by the statement that "[b]efore any careful trial judge granted a continuance in these circumstances, he or she would want a representation that the movant believed the missing witnesses were still prepared to offer the alibi testimony," post, at 403. Rule 24.10, the dissent insists, if meticulously observed, would have produced the very thing the court "needed to grant the motion: an assurance that the defense witnesses were still prepared to offer material testimony." Post, at 400; see post, at 403. No motion in the immediacy of the witnesses' sudden disappearance, however, could have provided assurance that they were still prepared to offer material testimony. The "careful trial judge" does not


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