Lee, Remon v. Kemna, Supt., Crossroads Correctional Center (01/22/2002)

By: Elyssa Andrus, Medill News Service

Questions presented

Did the 8th Circuit err by affirming the district court's denial of a petition for habeas corpus because a defendant's due process rights were violated when the trial court refused to grant him a 19-hour continuance to contact his three subpoenaed alibi witnesses who unexpectedly did not return after a lunch break? (2) Should a habeas corpus hearing have been held to at least consider the testimony of the alibi witnesses? (3) Has Lee made a substantial showing of actual innocence, for his alibi witnesses to be explored further to prevent a fundamental miscarriage of justice?

Brief

In 1994, Remon Lee was convicted of first-degree murder for the 1992 shooting death of Steve Shelby in Kansas City. During his trial, the witnesses Lee believes could have cleared him were, literally, out to lunch.

At trial, Lees lawyer planned to call Lees mother, stepfather and sister to testify that Lee was in California at the time of the shooting. The three were to rebut statements made by state witnesses identifying Lee as the driver of the truck in which Shelbys assailant fled. But all three of Lees relatives left the courthouse for a lunch break the day they were to testify and did not return.

Lees lawyer asked the judge to delay the trial while he located the witnesses. The judge refused, saying he had to visit his sick daughter in the hospital the following day. The defense had no other witnesses to call and Lee was convicted.

Lee filed a motion for a new trial, alleging ineffective assistance of trial counsel and a violation of his due process rights. The trial court denied Lees motion.

Lee was sentenced to life in prison without parole.

On direct appeal, Lee argued that his motion for a continuance at trial and his post-conviction motion for a new trial were denied improperly. The Missouri Court of Appeals rejected his claim, saying that the continuance motion was properly denied because it was filed incorrectly. According to a Missouri Supreme Court rule, continuance motions must be filed in writing. At trial, Lees lawyer asked for the 19-hour continuance orally.

To support his due process claim, Lee argued, that based on affidavits from his relatives, a court official told the three that they could go home because their testimony wasnt needed until the following day.

The appellate court ruled that Lee failed to show that the testimony of his witnesses was so crucial that it was probable it would have proved Lees innocence.

Lee filed a federal habeas petition, alleging a due process violation for failing to grant the continuance, as well as other errors. The U.S. District Court for the Western District of Missouri denied relief, affirming the state appellate courts ruling that Lees claim was procedurally deficient.

On appeal, the 8th Circuit Court of Appeals limited its review of the case to whether Lees due process rights were violated when he was denied a continuance at trial. In a short per curiam opinion, the majority affirmed, also rejecting Lees actual innocence claim, noting, ""Lee did not show the required likelihood that reasonable jurors would not have convicted based on the word of three family members.""

In an extensive 19-page dissent, Chief District Judge Mark Bennett, sitting by designation, said, ""I am unwilling to condone what I believe was a conviction in Lees case that violates 'fundamental fairness.'"" He added that he did not believe Lees due process claim was procedurally deficient, saying that federal habeas law ""increasingly elevates tortuous and tangled impediments over fundamental fairness.""

Moreover, Bennett found no justification for the trial judges refusal to continue the case for a day. ""No judge of any stripe, state or federal, trial or appellate, has yet passed on the reason for the alibi witnesses sudden disappearance from the courthouse just before Lees defense was to begin,"" he wrote.

Attorney Ann Wright, who represented Lee before the 8th Circuit, said she was disappointed in the ruling. ""I think he deserved relief. I think he should have been granted the continuance. The circumstances under which he asked for a continuance were very reasonable,"" Wright said.

In his petition for certiorari to the Supreme Court, Lee, acting as his own attorney, argued that his case differed from other procedurally deficient cases in which Missouri courts have denied relief. He said the Missouri Supreme Court had yet to rule on whether the procedural rules for filing a continuance had to be applied strictly when alibi witnesses ""mysteriously disappear for no logical reason.""

He further argued, ""It should be strongly noted that neither the trial prosecutor, the trial judge, the post-conviction court, nor the attorney general on appeal even hinted that Mr. Lee had failed to comply with any procedure or rule in light of the circumstances of the case. The state appeals court appears to have pulled their reason for denying relief out of a hat.""

Lees petition also said that the appellate courts did not realize the weaknesses of the states case at trial. ""Had the jury heard the alibi witnesses testimony, given the shaky nature of the state witnesses testimony, it is reasonable that the jury would have acquitted,"" Lee said.

The Missouri Attorney Generals Office responded by saying that the alibi witness claim ""is neither new nor does it establish that no reasonable jury would have convicted.""

On Feb. 26, 2001, the U.S. Supreme Court granted certiorari in the case and allowed Lee to proceed in forma pauperis.

On Jan. 22, 2002, the Court, by a 6-3 vote, held that application of the Missouri rules in this case are inadequate to keep the federal courts from considering the due process issues in the case.

Justice Ruth Bader Ginsburg wrote the majority opinion.

In dissent, Justice Anthony Kennedy wrote for himself and Justices Antonin Scalia and Clarence Thomas that the majority's opinion constituted a ""surprising reinvigoration of the case-by-case approach [that] is contrary to the principles of federalism.""