404
Kennedy, J., dissenting
bama, 308 U. S. 444, 446 (1940) (propriety of continuance, for the purposes of the Fourteenth Amendment, must be "decided by the trial judge in the light of facts then presented and conditions then existing"). If Lee and his counsel had any reason to believe his witnesses had not abandoned him, this representation would not have been difficult to make, and the trial judge would have had reason to credit it. Yet defense counsel was careful at all stages to avoid making this precise representation. In his opening statement he said:
"We will put on three witnesses for the defense, and you will see them and be able to evaluate them and see whether or not they're liars or not. You can determine for yourself." App. 12.
When he moved for the continuance, Lee's counsel, consistent with his guarded approach, would not say the witnesses would still testify as advertised:
"THE COURT: The folks were here today. They were seen here on this floor of the courthouse, and they apparently simply have abandoned—
MR. McMULLIN: Well—
THE COURT:—the defendant in—although they're family, despite the fact that they're under subpoena. MR. McMULLIN: It looks like that, Judge. I don't know. I would—I can neither confirm nor deny." Id., at 22.
No one—not Lee, not his attorney—stood before the court and expressed a belief, as required by Rule 24.10, that the missing witnesses would still testify that Lee had been in California on the night of the murder. Without that assurance, the judge had little reason to believe the continuance would be of any use. In concluding that the purposes of Rule 24.10 were served by promises made in an opening statement, the majority has ignored one of the central purposes of the Rule.
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