Opinion
Case No. 98-0074-CV-W-HFS.
July 8, 2004
MEMORANDUM AND ORDER
This habeas proceeding originating in State Court comes back on reversal and remand from the United States Supreme Court, for the purpose of resolving "the merits" of petitioner Lee's due process claim. Lee v. Kemna, 584 U.S. 362, 387 (2002). This court assumes readership that has closely studied the majority opinion and the dissent.
The due process claim is that the Missouri Circuit Judge abused his discretion so significantly as to violate Lee's constitutional right to due process whenhe denied the defendant's personal request, thereafter adopted by counsel, for a recess or continuance of trial proceedings in order to locate family members who were his only available alibi witnesses. The request was made in the early afternoon on a Thursday, and had the potential for delaying trial until the next day or (more likely) Monday. Lee was on trial for murder, which resulted in a life sentence. He had already been sentenced to 80 years in prison for another offense, and thus has no prospect for early release from prison.
Counsel's completion of preparation for this hearing, some two years after the Supreme Court's ruling, is therefore not strikingly dilatory. I take this opportunity to thank Lee's counsel for volunteering for this case, and also acknowledge the professionalism of counsel for the State.
Depositions have been taken from Lee's mother, stepfather and one sister. They had driven from California for the trial and were prepared to offer testimony tending to establish that Lee was in California with them, on an extended trip from July through October, 1992, including the day in August when a homicide occurred in Kansas City. Their deposition testimony largely supports affidavits that they signed (but thereafter forgot) in 1998, in an earlier phase of these proceedings. According to their testimony, they had been waiting in a witness room or conference room when they were advised by a bailiff or other court official that their testimony was no longer needed. After looking unsuccessfully for the court room they decided that they might as well go home. They returned to Lee's uncle's house, where they had been staying, and then left the house to return to California. Lee's mother, seeking direct information about the case, called Lee's attorney from a pay phone. There is some indication that there was no telephone in the home of the relatives. She reached the attorney, according to her deposition, in the late afternoon or evening of the same trial day, and was met with a show of exasperation concerning their disappearance from the courthouse.
The trial had been completed in their absence, and Lee was convicted. The defense limited itself to impeachment of two alleged eyewitnesses, who identified Lee as the driver of the "get away car."
The absence of the alibi witnesses was reported to the trial judge during a recess in which a record was being made as to Lee's decision not to testify. Lee's counsel had initiallytold himand the court that "there's nothing I can do if they're not here" and "all I can do is proceed without them and do the best I can". App. 18 In response to counsel's question whether Lee wanted him to take any action, Lee spoke up and initiated a request that "if we can get a couple of hours' continuance and try to locate them, because it's very valuable to my case." From that point on, defense counsel made a record of requesting a delay in the trial.
For convenience, record references will be made to the Joint Appendix, as filed in the Supreme Court, unless otherwise identified.
The problem to the trial judge was presented at the beginning of the last afternoon available to himto submitthe case, as he would be at a hospital the next day, Friday, with his daughter, who was to undergo surgery. He advised that he had another trial "that will take a week starting Monday morning" and was thus "not in a position to grant a continuance under these circumstances." He noted that "the folks were here today . . . and they apparently simply have abandoned (the defendant)." Counsel responded, "It looks like that, Judge. I don't know . . . I can neither confirmnor deny." App. 22.
On appeal frommy denial of relief, because of a theory of procedural default relied on by the Missouri Court of Appeals (and subsequently by a majority of the reviewing panel of the Eighth Circuit Court of Appeals) the dissenting judge, Chief District Judge Bennett, concluded that the abandonment theory was entirely unacceptable because not based on "a shred of information". This comment was quoted by the Supreme Court majority, 534 U.S. at 381.
The foregoing may be considered the bare-bones facts upon which a due process ruling must be made. As will be noted, I believe there is more to say about this case, but I acknowledge it relies on suppositions and attempts at mind-reading during what was apparently a five or ten minute crisis in handling the trial. The trial judge gave only two reasons for denying the recess, one of which was based on a mistaken guess; he also did not attempt to develop what I consider to be signs of a distinct difference in tactics favored by Lee and his counsel. That would, of course, be a delicate issue for the judge to explore.
As every experienced judge and practitioner will recognize, requests for continuances and recesses in criminal prosecutions are among the mostcommonsubjects of dispute. This case thus has precedential significance, given the intervention by the Supreme Court. Judicial denials of requests for additional time at the trial level seemto be almost invariably sustained on appeal. An opinion by Justice White, however, advises that "a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend . . . an empty formality . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case . . ." Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
A missing witness problemis the focus ofmanycases. An Eighth circuit example of a reversal for failure to grant a continuance is United States v. Olson, 697 F.2d 273 (8th Cir. 1983). An en banc ruling in the Seventh Circuit and the dissent in that case discuss the variations in some detail. Gardner v. Barnett, 199 F.3d 915, 919-20, 922-3 (7th Cir. 1999). A case that seems close on the simplest set of facts here is Manlove v. Tansy, 981 F.2d 473 (10th Cir. 1992). Manlove involved serious charges, but not as serious as homicide. A significant prospective witness unexpectedly left town during trial. A weekend's recess was requested and denied, with trial being completed on a Saturday. The stated reason for denial was either the trial judge's "plan to go fishing" or the state of the docket. There was later testimony that some nineteen cases were disposed of on what would have been the final day of a recessed trial. In reviewing the conduct of the State Court judge, the federal district judge "found nothing in the record to indicate that rescheduling the court business would have produced a hardship on anyone." 981 F.2d at 477. The grant of habeas relief under 28 U.S.C. § 2254 was affirmed. "Any minor inconvenience was outweighed by Manlove's need for the continuance."
In Manlove the defendant had testified to an alibi, but was convicted. The jury "obviously disbelieved Manlove's alibi defense. Thus Pike's testimony was potentially crucial to Manlove's defense." The appellate court accepted the claim of prejudice, based on a theory that there was a reasonable probability that the testimony of the missing witness would have produced a different verdict.
There was a dissent in Manlove, but on procedural grounds inapplicable here; that is, that the testimony was simply intended to impeach that of the prosecuting witness.
It seems clear that if one goes no farther than the record stated above there was a due process violation. Lee and his counsel were not at fault in releasing the witnesses (unless there are underlying facts not in evidence). The importance of the evidence is obvious; it was the only support for the affirmative defense of alibi. A recess might well have delayed the start of a scheduled week-long trial, but there is no showing by the State that any great inconvenience would result from starting the next trial on a Tuesday, even if it meant that the subsequent trial would not be completed until the following Monday. One may assume that another judge might have been available to take over or that a Saturday session could have been scheduled. But a day's delay in the next trial can only be described as a "minor inconvenience" on the facts presented. This homicide case request for time seems more compelling thanthe requestof relief in Manlove, — and Manlove seems well reasoned and soundly decided. In the State's concluding briefManlove is neither distinguished nor questioned. It would seem that a due process violation is almost conceded.
As I have touched on above, I would assume that the trial judge had more in mind thanhe said. If pressed to speculate about his thinking, and to evaluate whether it was justified, I have advised the parties that I would recuse. The late Judge Nugent and I were personal and family friends since law school and I had a good opportunity to know his practice, from his prosecutions before me when he was assistant district attorney. I believe I also have adequate knowledge of his reputation as judge. But to the extent there were unarticulated justifications for his decision to go forward that is entirely speculative. I amnotcalled uponto assess themhere, and I am thus comfortable staying with the case.
I note that I have no recollection of realizing this was a "Nugent case" until after my initial ruling.
Having concluded that there was, on the face of things, a due process violation, consideration of prejudice is appropriate, although it is not certain fromthe opinion of the Supreme Court majority that this is an issue I am expected to consider on remand
The State could prevail here if it could persuade me there is lack of prejudice, meaning that there is no reasonable probability that the trial's outcome would have been different if the three witnesses had been located and brought in to testify.Freeman v. Graves, 317 F.3d 898 (8th Cir. 2003). The "reasonable probability" test is not governed by preponderance concepts; rather, it simply turns on whether a court's "confidence" in the ultimate outcome is undermined. United States v. Carman, 314 F.3d 321 (8th Cir. 2002). If I conclude that Lee would have more than a "mere possibility" of an acquittal if his family members had testified, he is entitled to a new trial in State court.
In my initial ruling I said in dicta that I could not see prejudice. App. 217 n. 3. I referred to the State's proof, through four eyewitnesses, as "overwhelming", particularly that Lee was in Kansas City (not California) on the night before the homicide. I may also acknowledge that I was then more confident of what I said in the footnote than I was in the procedural deficiency discovered on appeal by the Missouri Court of Appeals in its unpublished opinion.
I did suppose, as did the Eighth Circuit majority, that doctrines of federalism established by the Supreme Court forbade second-guessing the rather strange procedural theories emanating from the Missouri Court of Appeals in this case.
We can now consider the situationmore adequately. Not only has the Supreme Court majority denied that the alibi theory was in a state of "collapse" because of the testimony about the sighting of Lee in Kansas City but we also have video taped testimony fromthe familywitnesses. Unlike some cases involving family witnesses, the three in this case testify in a very credible manner, and I doubt that a jury would view themas willful perjurers. On the other hand, there are distinct weaknesses and deficiencies in the testimony, and doubtless some significant exaggeration on points of memory favorable to Lee. I would suppose a trier would be persuaded that Lee was in California both in July and October. I still think it improbable, although distinctly possible, that a jury would be convinced he was there in late August, at the time of the homicide.
A summary of the deposition testimony develops the following strengths and weaknesses: Rev. Edwards, the stepfather, has very limited memory of the conduct of Lee during the summer of 1992. He remembers specifically that Lee was in California for certain birthdays in July and the birth of a niece in October. It is his impression that Lee was in California from July through October. He thus has no recollection of two trips that year. He had heard the murder took place while Lee was in California. During the interimhe did not keep "close tabs" on his stepson, but saw himperhaps once a week. Lee did not make it a practice of staying at the Edwards home with his mother, but probably he stayed with his "aunt". This could be a misspoken remark, intended to apply to the sister who gave birth in October. That sister is not one of the potential witnesses. Lee's girlfriend was in California for "about a month" during the time in question. Lee does not want her called. App. 76. See Dep. pp. 12, 13, 19, 20, 25.
Laura Lee, a sister, believes Lee stayed in California until late October. He was at her house "a couple of nights" but her recollection is that he was generally with his mother and sometimes with his sister. She says she saw him "every day". Dep. 8, 9, 10, 20, 21.
I am extremely dubious of this particular phrase and doubt that a jury would accept it literally.
Gladys Edwards, the mother, testified that Lee came around to her house "every once in a while" but generally stayed with Laura. She saw him two or three times a week, maybe more. The girlfriend probably paid for his airline ticket. There was never a week during the period in question that she did not see Lee. Dep. 8, 14, 23, 24.
None of the witnesses remembers signing affidavits that were filed in 1998. Rev. and Mrs. Edwards did not remember the address where they had lived. Some of the pertinent conclusory statements may be viewed as exaggerations, particularly since there was confusion about where Lee was spending the nights, and there are one or two missing witnesses.
It does seemdoubtful thatanalibi for late August, 1992, had beenparticularly well established by this testimony. It seems weak in light of the contrary proof by the victim's sister and a neighbor, both of whom knew Lee, that they saw him with the killer the night before the homicide, looking for the victim.
In a case affirming the denial of habeas relief, where a continuance had been denied to allow alibi testimony, an opinion by Judge Bright stated that "in all probability" proffered alibi testimony would "not have changed the verdict of the jury given (the) relationship to (defendant) and their obvious bias."Gullett v. Armontrout, 894 F.2d 308, 310 (8th Cir. 1990). Judges at the trial and appellate level frequently indulge in an assumption that alibi evidence from family and friends is seldom impressive with a jury.
Having previouslycharacterized the testimony ofthe State's four witnesses as "overwhelming" I continue to believe that it is unlikely that the three family witnesses could have persuaded a jury that an alibi was sound in this case. I now know more than the majority did in the Supreme Court when it said the alibi defense was not in a state of "collapse" ( 534 U.S. 381, n. 12) but my remaining skepticism does not signify that my "confidence" in the outcome remains so solid that a jury should not fairly be used to determine the issue. There is more than a "mere possibility" that a jury would accept the alibi testimony. In that sense the due process violation must be deemed prejudicial.
It may nevertheless be appropriate to offer still more speculation favorable to letting the adverse judgment remain in effect. Truth is elusive, and candor is useful. I would be reasonably sure that Judge Nugent noted with interest the fact that defense counsel was reluctant to ask for a recess, and thereafter simply went through the motions of complying with Lee's wishes. Counsel may have appraised the case as I might be inclined to do so now; that is, it might be easier to focus a critique on the two eyewitnesses to the homicide rather than "confuse the issue" by challenging whether Lee was in Kansas City the previous day. Once the alibi witnesses were heard, it might be predictable that the jurywould focus on deciding who had it right about the previous day. That may not have been Lee's best strategy, particularly with weaknesses in the alibi testimony. On this hypothesis, Lee's counsel could have told the bailiff to release the witnesses, and then backtracked when his client was insistent. Counsel's performance may have been loyal to petitioner's interests but somewhat disingenuous. But these thoughts are far too speculative to support a decision.
The Supreme Court majority thought defense counsel was not likely to have changed his preferred strategy during the trial. There is an indication, however, that he was surprised and became alarmed when he heard testimony from the victim's sister. App. 61.
If this speculation is unfair to counsel, who the parties have chosen not to call, I apologize, but it seems quite possible from the record, including the strange action of the bailiff in releasing the witnesses, which is outside my experience unless someone gave him "the word". There is nothing to support suspicion that the prosecution was responsible.
The controlling facts are that a recess was required by due process, on the record as articulated, and that petitioner had and has three generally credible witnesses for an alibi defense.
For the foregoing reasons, I now conclude that the due process clause of the Fourteenth Amendment entitles petitioner to a writ of habeas corpus. Such a writ shall issue, vacating and permanently setting aside petitioner's murder conviction and the sentence imposed in 1994 in the Circuit Court of Jackson County, Missouri, unless, within ninety days of this date, or such further time as may be agreed to by petitioner, a new trial in that court begins. SO ORDERED.