Lee v. Kemna, 534 U.S. 362, 21 (2002)

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Opinion of the Court

Second, no published Missouri decision directs flawless compliance with Rules 24.09 and 24.10 in the unique circumstances this case presents—the sudden, unanticipated, and at the time unexplained disappearance of critical, subpoenaed witnesses on what became the trial's last day.13 Lee's predicament, from all that appears, was one Missouri courts had not confronted before. "[A]lthough [the rules themselves] may not [have been] novel, . . . [their] application to the facts here was." Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 245 (1969) (Harlan, J., dissenting).

Third and most important, given "the realities of trial," post, at 400, Lee substantially complied with Missouri's key Rule. As to the "written motion" requirement, Missouri's brief in this Court asserted: "Nothing would have prevented counsel from drafting a brief motion and affidavit complying with Rul[e] 24.09 in longhand while seated in the courtroom."

demand the impossible. The witnesses' absence was unexplained, and could not be explained on the afternoon of their disappearance. That is why an overnight continuance to locate the witnesses was so "very valuable to [Lee's] case." See supra, at 369.

13 Missouri cites five cases as examples of the state courts' enforcement of Rules 24.09 and 24.10 (or their predecessors) "even in cases of exigency." Brief for Respondent 25-26. The five cases are: State v. Gadwood, 342 Mo. 466, 479, 116 S. W. 2d 42, 49 (1937) (defendant's counsel knew, or should have known, of likelihood of witnesses' inability to appear two days before trial); State v. Cuckovich, 485 S. W. 2d 16, 21 (Mo. 1972) (en banc) (defendant arrived at court on first day of trial with a letter from a doctor explaining that witness was ill); State v. Scott, 487 S. W. 2d 528, 530 (Mo. 1972) (absent witness was not subpoenaed); State v. Settle, 670 S. W. 2d 7, 13-14 (Mo. App. 1984) (deficient application filed six days before trial); State v. Freeman, 702 S. W. 2d 869, 874 (Mo. App. 1985) (absent witness had told officer serving subpoena that she would not appear). All of these cases are readily distinguishable; none involved the sudden and unexplained disappearance of a subpoenaed witness in the midst of trial. The adequacy of a state ground, of course, does not depend on an appellate decision applying general rules to the precise facts of the case at bar. But here, no prior decision suggests strict application to a situation such as Lee's.

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