High Court Says Convict Entitled to Federal Habeas Review 
Tony Mauro
American Lawyer Media

January 23, 2002 

On the crucial day of his Missouri murder trial in 1994, Remon Lee's alibi witnesses failed to show up in court. The judge, who said he needed to visit his daughter at a hospital the next day, denied Lee's request for a continuance. Lee was found guilty and sentenced to life in prison. Ever since, he has waged a sometimes pro se battle against the conviction in state and federal courts, a battle that was unsuccessful every step of the way -- until Tuesday. 

In a rare expansion of federal review of state convictions, the U.S. Supreme Court on Tuesday ruled that Lee was entitled to federal habeas corpus review of the judge's decision to deny the continuance. 

Lower courts had ruled that Lee's oral motion had violated state rules that require written motions for continuance. When state rules are violated, the lower courts said, federal review is barred. 

Justice Ruth Bader Ginsburg, writing for the majority, said that while violation of state procedural rules usually forecloses federal review, "There are, however, exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Lee's plight, she said, was one of those exceptional cases. 

The high court's decision was especially rare because of the Court's 6-3 lineup in favor of the murder defendant. Chief Justice William Rehnquist, usually a reliable vote against habeas review, joined Ginsburg's majority. 

In both the footnotes and the text of that majority opinion, Ginsburg fired off several zingers at the dissent, which was authored by Justice Anthony Kennedy and joined by Justices Antonin Scalia and Clarence Thomas. 

The dissenters asserted that the ruling would inject "troubling instability into the criminal justice system" and upset the federalist principle that state criminal convictions should only rarely be subjected to federal review. Kennedy said the ruling would force trial judges and then state and federal appellate courts to "comb through the full transcript and trial record, searching for ways in which the defendant might have substantially complied with the essential requirements of an otherwise broken rule." 

Ginsburg wrote derisively of the dissent's "frantic forecast of doom" and its "shrill prediction" of harm to federalism. 

She insisted she was announcing a narrow rule that would affect only a narrow category of cases such as Lee's, where the objective of the state rule had been achieved, even though Lee's motion did not meet its precise requirements. "The dissent," Ginsburg wrote, "tilts at a windmill of its own invention." 

Lee, serving his sentence in state prison, filed his petition to the Supreme Court pro se, without the aid of a lawyer. His court-appointed lawyer, Bonnie Robin-Vergeer of the Washington, D.C.-based Public Citizen Litigation Group, said Tuesday, "It's always a great surprise to win a habeas claim" at the Supreme Court level. 

But she guessed that the majority was persuaded by the "egregious" facts of Lee's case. "I don't see this as a federalism issue," said Robin-Vergeer. "It's just a case of basic fairness and due process." 


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