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Criminal Justice: "Troubling Instability" in Law of Continuances?

By Michael A. Rosenhouse, Esq.

[Reprinted by permission of The Daily Record from the February 7, 2002 edition]

If the dissenters are to be believed, a recent U.S. Supreme Court decision has "inject[ed] troubling instability into the criminal justice system." Lee v. Kemna, 2002 U.S. LEXIS 494, *46, Dkt. No. 00-6933 (January 22, 2002). The decision supported a defendant in a murder case who contested the denial of his motion for a short continuance to locate witnesses who unexpectedly failed to appear.

The implicit problem, one supposes, is a threatened nationalization of the law of continuances. But the New York approach shows that the state-law procedural issue of continuances was already infused with national law. The Supreme Court has only nudged the country toward the New York position.

In the Lee case, a habeas corpus appeal, a Missouri defendant charged with driving the get-away car in a murder moved for a continuance during his trial when his alibi witnesses didn’t show up. In an oral motion, his lawyer asked for a few hours to locate them. The motion was denied and the defendant was convicted. He lost an appeal on the merits and motions for post-conviction relief and appeals from denials thereof.

The certiorari petition in the habeas corpus appeal was prepared by the defendant pro se, with counsel appointed by the Court after the petition was granted. The majority and dissenting opinions are devoted almost entirely to points not raised at the trial stage by the defendant, the prosecutor, or the trial court – a reminder that the rule against an appellate court considering such points is only a prudential one. The Court held that the defendant’s habeas corpus petition should be considered on its merits.

The defendant claimed he was in California visiting his family, not in Kansas City, when the murder took place there. His mother, stepfather, and sister flew in from California for the trial and were apparently prepared to testify that he was indeed visiting them. In fact, they were at the courthouse the morning of the trial. But, according to affidavits they filed months later, somebody at the courthouse told them their testimony wouldn’t be needed, and they left – left the defendant, that is, way out on a limb.

At the time, of course, nobody knew what had happened to the missing witnesses, and the court denied the defendant’s oral motion for a continuance. Missouri Supreme Court Rule 24.10 required a motion for continuance to be supported by an affidavit showing what material testimony the missing witnesses would give and good faith and due diligence by the movant. It also gives the movant a chance to amend his affidavit in the event the trial judge initially deems it insufficient. The judge denied the oral motion without citing or discussing that rule, however; the prosecutor did not argue the rule (until the appeal), and the record of the trial to that point made clear what the gist of the witnesses’ testimony would be. The judge commented that it appeared the witnesses had abandoned the defendant. The judge also said that granting a continuance would conflict with his plans to visit his daughter in the hospital.

The hornbook rule is that the Court will not take up a question of federal law if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment. Thus, the key question was the adequacy, under this rule, of the state court’s order denying the motion for continuance. The Court, in an opinion by Justice Ginsburg, held that in the circumstances the defendant had satisfied the procedural rule’s "essential elements." 2002 U.S. LEXIS 494, *42, n. 15. The Court further held that the present case was one of the "exceptional" ones in which "exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Id. *26. Hence, the defendant’s due process claim was not procedurally barred.

The dissenting opinion by Justice Kennedy (joined by Justices Scalia and Thomas) thought it was enough that the defendant had not complied with the Missouri rule’s requirements. The opinion said nothing about the fact that non-compliance with the rule had not been argued in the trial court and was not an explicit basis of the decision.

In New York, the "law of continuances" for missing witnesses is case-based, requiring a showing similar to that required by the Missouri Rule 24.10. See People v. Foy, 32 N.Y.2d 473, 346 N.Y.S.2d 245 (1973).

This common law approach has allowed New York the flexibility which the U.S. Supreme Court now promotes nationwide. The Court of Appeals noted in the Foy case that, while granting continuances is a matter within the discretion of the trial court, "recent decisions…reflect a more liberal policy in favor of granting a short adjournment – and thus more narrowly construing the court’s discretionary power – when the delay is requested in order to insure a fundamental right, " id. at 476-477, and "few rights are more fundamental than that of an accused to present witnesses in his own defense." Id. at 478, quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed2d 297 (1973).

The Lee case lines up nicely with the Foy case.

Michael Rosenhouse concentrates his practice in appeals, motions, and special research and editorial projects, and can be reached at mike@rosenhouse.com. For further information, see www.lawyers.com/rosenhouse.