Latent Equity

within the language of the statute would lead to an "absurd result that the legislature could not possibly have intended." unless .......

2008-02-27T00:43:00.000-08:00

.....only to exonerate the legislature possible "built in defense" (may or maybe or may not)would/could lead to an "absurd result" if the lawmakers accused of the allegation in any way, shape or form of "Tampering of a Governmental Record"to wit:

~1. Rule 13 of the Texas Rules of Civil Procedure is entitled "Effect of Signing of Pleadings, Motions and Other Papers; Sanctions."

2. Section 37.10(a)(5) provides that a person commits the offense of tampering with a governmental record if he "makes, presents, or uses a governmental record with knowledge of its falsity." Tex. Penal Code Ann. º 37.10(a)(5) (Vernon Supp. 2004-2005). Pursuant to º 37.10(c)(1), this offense is "a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony." Tex. Penal Code Ann. º 37.10(c)(1) (Vernon Supp. 2004-2005).

How many false allegations results in an illegal conviction,totally Texas size SNAFU an "absurd result" ~~ and who have been sanctioned?

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0351-05

THE STATE OF TEXAS

v.

JAMES VASILAS, Appellee

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

COLLIN COUNTY

Meyers, J., delivered the opinion of the unanimous Court.

O P I N I O N

We granted the State's petition for discretionary review to decide whether a petition for expunction qualifies as a "governmental record" under section 37.01 of the Texas Penal Code. One definition of a governmental record is "anything belonging to, received by, or kept by government for information, including a court record." Tex. Penal Code Ann. º 37.01(2)(A) (Vernon Supp. 2004-2005). The definition of a court record is "a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court." Tex. Penal Code Ann. º 37.01(1) (Vernon Supp. 2004-2005). We will resolve whether pleadings filed with but not issued by a court fall within the definition of a governmental record pursuant to º 37.01(2)(A).

Facts

Appellee, James Vasilas, is an attorney whose client was charged with the state jail felony of delivery of marijuana. Appellee's client was convicted of the lesser-included offense of possession of marijuana. Thereafter, Appellee signed and filed a petition of expunction of the records relating to his client's arrest on the delivery charge. The State then charged Appellee in a four-count indictment of tampering with a governmental record pursuant to Tex. Penal Code º 37.10, alleging that he made three false entries in the petition for expunction. Appellee filed a nonsuit of the expunction lawsuit.

Subsequently, Appellee filed a motion to quash the indictment on two grounds. First, he asserted that º 37.10 of the Texas Penal Code and Texas Rule of Civil Procedure 13 (1) were in pari materia, with Rule 13 controlling over º 37.10. Second, he claimed that pleadings in civil suits were not governmental records under the definition of º 37.01(2)(A). After hearing oral argument, the trial court granted the motion to quash without filing findings of fact or conclusions of law. The State timely filed its notice of appeal.

Because the State did not appeal the trial court's granting of the motion to quash the first three counts of the indictment, the sole issue before the court of appeals was whether the trial court erred in granting the motion to quash Count IV, which alleged that Appellee did "with intent to defraud and harm another, namely, the State of Texas, make, present, and use a governmental record, to wit: a Petition for Expunction of Records, with knowledge of its falsity." (2) The court of appeals affirmed the trial court, holding that "the petition for expunction filed by appellee was not a governmental record within the meaning of chapter 37 of the penal code." State v. Vasilas, 153 S.W.3d 725, at *5 (Tex. App.-Dallas 2005, pet. granted). The court of appeals reasoned that by including a court record in the definition of a governmental record, the legislature meant to exclude every type of court document that was not a court record. Since the definition of a court record under the Texas Penal Code is a document issued by a court, the court of appeals concluded that a pleading, such as a petition for expunction, which is created by a party or attorney and merely filed with a court, cannot be a governmental record. Having resolved this issue against the State, the court of appeals did not address whether Tex. Penal Code º 37.10 and Rule 13 were in pari materia.

Issue Presented

The State argues that "under the plain language of the statutory definition of 'governmental record,' which encompasses anything received by a court for information, a petition for expunction can be a governmental record even though it is filed with, not issued by, a court." The State asserts that the court of appeals' interpretation of the definition of a governmental record violates section 311.005(13) of the Texas Government Code, commonly referred to as the Code Construction Act, which defines "including" as a term of enlargement and not of limitation. Furthermore, the State submits that the court of appeals should not have looked beyond the plain language of the statute to its legislative history in discerning the meaning of a governmental record, and that it erred by misinterpreting the legislature's intent in amending the definition of governmental record in 1997 to include a court record. (3) While Appellee concedes that the word "including" is not itself a term of limitation, he argues that a petition for expunction does not qualify as a governmental record because: 1) the words "for information" in º 37.01(2)(A) exclude documents that seek to destroy information; 2) the legislature did not explicitly include pleadings within the definition of a governmental record; and 3) the petition for expunction was not a governmental record when the false entries were made. Although Appellee also advances the argument that º 37.10 and Rule 13 of the Texas Rules of Civil Procedure are in pari materia, the court of appeals did not reach this issue, and it is not the issue for which we granted review. We will reverse the court of appeals' decision.

Analysis

The resolution of this case depends on the meaning of the word "including" in the definition of "governmental record" in º 37.01(2)(A). The construction to be given a statute is a question of law. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). In our leading statutory interpretation case, Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991), we explained that courts must begin with the plain language of a statute in order to discern its meaning. This is because the court's interpretation of statutes must "seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation." Id. at 785 (citing Camacho v. State, 765 S.W.2d 431 (Tex. Crim. App. 1989)). In Boykin, we established that if the literal text of the statute was clear and unambiguous, we would ordinarily give effect to that plain meaning. 818 S.W.2d at 785 (citing Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990)). However, we also held:

If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history.

Id. at 785-86. The seminal rule of statutory construction is to presume that the legislature meant what it said. Seals v. State, 187 S.W.3d 417, 421 (Tex. Crim. App. 2005). In adhering to this rule, we show our respect for the legislature and recognize that if it enacted into law something different from what it intended, it would amend the statute to conform to its intent. Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (citing Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S.Ct. 1023, 1034, 157 L.Ed.2d 1024 (2004) ("It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think . . . is the preferred result.")).

The legislature has provided the Code Construction Act to assist in statutory interpretation. It instructs that "words or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." Tex. Gov't. Code Ann. º 311.011(b) (Vernon 2005). In º 311.005(13) of the Code Construction Act, the legislature expressly stated its intent regarding its use of the word "including" in statutory provisions, providing: "'Includes' and 'including' are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded." Tex. Gov't. Code Ann. º 311.005(13) (Vernon 2005). This Court relied on º 311.005(13) in interpreting the statutory meaning of "including" in Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992) (plurality opinion), superseded by statute, Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994). Pursuant to º 311.005(13), we established that the list following "including" in Article 37.07(3)(a) of the Texas Code of Criminal Procedure (4) was not exclusive as to the evidence admissible at the sentencing phase of trial, as long as it was relevant to sentencing. Grunsfeld, 843 S.W.2d at 525 (explaining that the legislature's use of the term "including" in amending Article 37.07(3)(a) rendered the list following it nonexclusive); see also Beasley v. State, 902 S.W.2d at 456-57 (holding that evidence concerning the activities of a gang, to which the appellant belonged, was admissible under Article 37.07(3)(a) because matters relevant to sentencing were not limited to "the prior criminal record of the defendant, his general reputation and his character"). (5)

The lower courts have also interpreted the legislature's use of the word "including" as a means of illustration and not exclusion. For instance, in Leach v. State, the court of appeals applied º 311.005(13) to the defendant's community supervision condition, which tracked statutory language in the Texas Code of Criminal Procedure, and held that the word "including" did not "creat[e] a presumption against further inclusion of terms not expressly stated." 170 S.W.3d 669, 673 (Tex. App.-Fort Worth 2005, pet. ref'd) (holding that because "including" was a term of enlargement, the defendant had violated his community supervision by going within 1000 feet of a grassy area where children played, even though this location was not specified in the list of prohibited premises). Similarly, in Wilburn v. State, the court of appeals relied on º 311.005(13) to reject the appellant's argument that, by specifically including franchise taxes in the Franchise Tax Act, the legislature had intended to exclude directors' and officers' liability for all other taxes. 824 S.W.2d 755 (Tex. App.-Austin 1992, no pet.). In H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., this same court of appeals reasoned that the Railroad Commission of Texas's use of the word "including" in a notice provision did not create an exclusive list of interests entitled to notice. 36 S.W.3d 597 (Tex. App.-Austin 2000, pet. denied). In fact, citing º 311.005(13), the court of appeals stated that "the Commission's use of the word 'include' in the provision signified that the list is not exclusive." Id. at 603 (emphasis added).

Both this Court and the lower courts of appeals have construed "including" as a term of enlargement in accordance with the legislature's intention. By employing the word "including" to illustrate an example of a governmental record, the legislature did not by its plain language intend to exclude documents that were filed with the court from the definition of º 37.01(2)(A). In spite of the fact that the word "including" is unambiguous and the legislature has assigned it a particular meaning of enlargement, Appellee argues that the definition of a governmental record still excludes the petition for expunction at issue.

First, Appellee claims that the legislature would have included pleadings in the express language of º 37.01(2)(A), if it had intended them to be governmental records. We have already explained that the legislature's decision to name a court record as an example of a governmental record does not narrow what qualifies as a governmental record. Furthermore, we agree with the State that "it is difficult to see how the legislature would have to make any additions to the definition of governmental record for the current word 'anything' to include a pleading." (6) Second, Appellee contends that the phrase "for information" in the definition of governmental record operates to exclude the petition for expunction because it seeks to destroy other governmental records. Just because the filing of a petition for expunction may result in the destruction of certain records does not take away from the fact that the petition gives the government information about which records the petitioner wants to expunge. Third, Appellee contends that the petition for expunction is not a governmental record because it had not been received by the government when the false entries were made. See Pokladnik v. State, 876 S.W.2d 525 (Tex. App.-Dallas 1994, no pet.); Constructors Unlimited v. State, 717 S.W.2d 169 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd). Appellee's argument is misplaced because he relies on cases in which defendants were charged under º 37.10(a)(1), which requires knowingly making a false entry in, or false alteration of, a governmental record, and not under º 37.10(a)(5), which requires making, presenting, or using a governmental record with knowledge of its falsity. Although the petition for expunction was not a governmental record when Appellee prepared it, it became a governmental record once the court received it and he used it in seeking to obtain the expunction of records. See Morales v. State, 11 S.W.3d 460 (Tex. App.-El Paso 2000, pet. ref'd) (holding that even if a petition containing signatures for placement on the ballot was not a governmental record when it was falsified, it became a governmental record after it was accepted by the party chairperson and the candidate relied on it to maintain his position on the ballot). We conclude that the legislature's definition of a governmental record is clear and unambiguous and may include a court record, such as the petition for expunction at issue.

Having established that the clear and unambiguous language of º 37.01(2)(A) does not exclude pleadings, such as a petition for expunction, from the definition of a governmental record, it is necessary to determine whether bringing the petition for expunction within the language of the statute would lead to an "absurd result that the legislature could not possibly have intended." Getts, 155 S.W.3d at 155 (citing Boykin, 818 S.W.2d at 785-86). Relying on º 311.021(5) of the Code Construction Act for the proposition that in enacting a statute, there is a presumption that public interest is favored over any private interest, Appellee describes the allegedly falsified petition for expunction as a mistaken pleading, the prosecution of which "would have a chilling effect upon our system of jurisprudence." He characterizes the result of including pleadings in the definition of a governmental record as: "the State's orwellian [sic] persecution of lawyers by attempting to deprive counselors licensed by the Supreme Court of Texas of their ability to earn a living practicing before our courts." Clearly, Appellee misses the point of º 37.10, which does not effectively disbar attorneys, but makes them criminally liable if they tamper with a governmental record. While º 37.10(a)(5) makes it an offense to make, present, or use a governmental record with knowledge of its falsity, º 37.10(a)(3) makes it an offense to intentionally destroy, conceal, remove, or impair a governmental record, which is effectively what the falsified petition for expunction was attempting to do. There is nothing absurd about the legislature seeking to prohibit these acts with respect to a petition for expunction or other pleadings, and these prohibitions do not preclude effective lawyering, as Appellee suggests, by forbidding attorneys from entering alternative pleadings. Tampering with a governmental record pursuant to the definitions of ºº 37.10(a)(3) and 37.10(a)(5) is very different from advocating a client's interests by advancing different legal theories which have bases in the facts and the law.

Furthermore, we have not often considered the issue of what constitutes a governmental record, but our caselaw indicates that there is nothing unique about a petition for expunction such that the legislature would seek to treat it differently from all the other records that would fall within its scope. For instance, applications for government benefits, such as the one in State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999), clearly qualify as governmental records. It is not at all absurd for the legislature to include pleadings within the meaning of a governmental record pursuant to º 37.10(a)(5). The legislature obviously meant to protect the people of the State by making it a crime to tamper with governmental records. By enacting º 37.10, the legislature intended to prevent a multitude of harms, including the destruction of governmental records, the perpetration of a fraud upon the court, and the miscarriage of justice that could result from the use of falsified records. There is nothing absurd about the legislature criminalizing such conduct.

Conclusion

Because the legislature's definition of a governmental record is clear and unambiguous, and including pleadings in this definition does not lead to an absurd result, it is unnecessary to examine the legislature's intent in amending the definition of a governmental record in 1997. The court of appeals erred in undertaking such an analysis. We reverse the decision of the court of appeals and remand the case for consideration of the second ground for review.

Meyers, J.

Delivered: March 22, 2006

Publish

1. Rule 13 of the Texas Rules of Civil Procedure is entitled "Effect of Signing of Pleadings, Motions and Other Papers; Sanctions."

2. Section 37.10(a)(5) provides that a person commits the offense of tampering with a governmental record if he "makes, presents, or uses a governmental record with knowledge of its falsity." Tex. Penal Code Ann. º 37.10(a)(5) (Vernon Supp. 2004-2005). Pursuant to º 37.10(c)(1), this offense is "a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony." Tex. Penal Code Ann. º 37.10(c)(1) (Vernon Supp. 2004-2005).

3. In 1997, the legislature amended º 37.01 by adding the phrase "including a court record" to the definition of "governmental record" in what had previously been º 37.01(1)(A). The legislature moved the definition of governmental record from subsection (1) to subsection (2) and added a definition of a "court record" in º 37.01(1). See Tex. Penal Code Ann. º 37.01 (Vernon Supp. 1998).

4. At the time we decided
Grunsfield, Article 37.07(3)(a) provided that "regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character." Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1991) (emphasis added). Subsequent to our decision in Grunsfeld, the legislature amended the language of º 37.07(3)(a) to clarify that evidence of unadjudicated extraneous offenses and prior bad acts were admissible at punishment. See Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994); Beasley v. State, 902 S.W.2d 452, 457 (Tex. Crim. App. 1995) (plurality opinion) (McCormick, P.J., concurring).

5. Although we decided
Beasley in 1995, we relied on the earlier version of Article 37.07(3)(a), which we interpreted in Grunsfeld and which was in effect when the appellant had committed his offense.

6. The State first advanced this argument in its brief to the Fifth Court of Appeals.

Americans despised the idea that their country was involved in an armed conflict.......

2007-10-26T00:33:00.000-07:00

"Ohio" - Neil Young Lyrics Analysis

kent state
"It's still hard to believe I had to write this song. It's ironic that I capitalized on the death of these American students. Probably the most important lesson ever learned at an American place of learning. David Crosby cried after this take."
from liner notes of the Decade album

photo by John Filo

Neil Young News

Play and listen to a MP3 sample clip of "Ohio" (studio version)
"Ohio" lyrics by Neil Young
Please comment in the guestbook
Analysis of the lyrics of Crosby, Stills, Nash, and Young song "Ohio"

[Note: This is one of a series of articles which provide an explanation of the meaning of Neil Young's song "Ohio". While the interpretation of lyrics presented here is composed of several viewpoints, there is little consensus on the exact meaning of Neil's songs. The themes and symbolism of Young's songwriting provide a rich tapestry on which to project various meanings and analysis. ]

Immediately after the Kent State shooting (sometimes referred to as the "Kent State Massacre") on May 4, 1970, Neil Young composed the song "Ohio" after looking at photos appearing in Life magazine and then taking a walk in the woods. Crosby, Stills, Nash, and Young went to the studio and recorded the song which was released to radio stations shortly after the killings. Soon, the lyrics "Four dead in Ohio" became an anthem to a generation. In some parts of the country, the song was banned from playlists because of it's "anti-war" and "anti-Nixon" sentiments.
The Four Dead in Ohio

Four Dead in Ohio - allison krause,william schroeder, jeffrey miller, sandra scheuer

"What if you knew her and found her dead on the ground?"

Excerpted from the article "An Analysis of Music and Lyrics in Relation to American Culture in the 1960s" on Epinions by Andrew Lasho. Lasho interprets the meaning of the lyrics to Neil Young's song "Ohio" and offers an analysis of the song's historical importance:

"When the United States began involvement in the conflict in Vietnam, the response was uproarious and rampant. Many young Americans despised the idea that their country was involved in an armed conflict that in no part was their own fault, and did not even directly effect them. They believed that the United States had no real business in Vietnam.

One of the most outspoken songwriters of this era and calling was Neil Young. Whether it was with Buffalo Springfield or with his other group, Crosby, Stills, Nash, and Young, Neil Young expressed his opinion at every opportunity that presented itself. In his song Ohio, he expresses both his opinions about the war, and about a specific event that took place on the campus of Kent State University in Ohio.

ohio-kent-rage-taunt.gif

"Tin soldiers and Nixon coming,
We're finally on our own.
This summer I hear the drumming
Four dead in Ohio."
("Ohio" lyrics by Neil Young)

On May 4, 1970, a student demonstration at Kent State, Ohio left four students dead, one paralyzed, and eight others wounded. This demonstration, meant to be one of many peaceful demonstrations against the war, was ended abruptly and violently when the National Guard fired into the crowd for 13 seconds. The brief shootings ended the lives of students Jeffrey Miller, Allison Krause, William Schroeder, and Sandra Scheuer. The distances ranged from 270 feet to 390 feet. Some of these students were not even directly involved. Justified or not by self-defense, the "massacre" sparked a nationwide student strike that closed many colleges and universities.

The line, "We're finally on our own" describes the feeling of freedom and independence in college, and the line "Four dead in Ohio" refers to the four slain students at Kent State. The "Tin soldiers" are the National Guard, and many people, including Young, felt that it was President Richard Nixon's fault.

ohio-kent-bayonets.gif

"Gotta get down to it
Soldiers are cutting us down
Should have been done long ago."

kent state

The "Tin Soldiers" in Ohio "Cutting them down" at Kent State University
The Day America Killed It's Children

Play and listen to a MP3 sample clip of "Ohio" (studio version) or live in concert. (note*)

When asked about releasing the song "Ohio", Graham Nash responded:

"Four young men and women had their lives taken from them while lawfully protesting this outrageous government action. We are going back to keep awareness alive in the minds of all students, not only in America, but worldwide…to be vigilant and ready to stand and be counted… and to make sure that the powers of the politicians do not take precedent over the right of lawful protest."

governor-rhodes.jpg president-nixon.jpg
James Allen Rhodes - Governor of Ohio &
Richard Milhous Nixon - 37th President of the United States

Some believe that a conspiracy covering up the true motivations behind the shootings that involved James Allen Rhodes, Governor of Ohio and President Richard Nixon. (See the book Four Dead in Ohio: Was There a Conspiracy at Kent State by William A. Gordon for more details.)

In 13 Seconds: A Look Back at the Kent State Shootings by Philip Caputo, the author details Richard Nixon's decision to invade Cambodia, the militaristic missives of the ultra-leftist Weathermen, and statements such as high-profile California governor Ronald Reagan's declaration about student protests, given three weeks before the shootings ("If it takes a bloodbath, let's get it over with") as part of the events leading up to that fateful day.

Jimmy McDonough writes in the Neil Young Biography "Shakey" about the song "Ohio": "In ten lines, Young captured the fear, frustration and anger felt by the youth across the country and set it to a lumbering D-modal death march that hammered home the dread."

The events in Ohio seemed to mark the end of the Woodstock nation. From Song Facts:

"Crosby once said that Young calling Nixon's name out in the lyrics was 'the bravest thing I ever heard.' Crosby noted that at the time, it seemed like those who stood up to Nixon, like those at Kent State, were shot. Neil Young did not seemed scared at all."

kent state nyt
The front page of the New York Times newspaper (May 5, 1970) with the Pulitzer Award photographic image by John Filo that shocked America
In the Recording Studio for "Ohio"

ohio-single-bill-of-rights
"Ohio" single with the United States Bill of Rights
Highlights the right to peacefully assemble

From David Crosby's site, an interview with Bill Halverson, recording engineer for the song "Ohio". Halverson is interviewed by Tony Bittick on remembering the recording studio session:

"BH: Crosby, Stills, Nash, and Young probably got there 6:00, something like that, and we set up. Live vocal mics, they had a little drum booth and it wasn't live enough for the guys so we opened the doors to the drum booth so the drums were just sort of in an alcove. And set up their...pretty much their stage amps, and with vocal mics and they fiddled around for a while and I don't recall us doing more than two or three takes of it with live vocal and live harmonies and everybody chiming in. And I was used to recording them all in the room together. We'd done "Almost Cut My Hair that way... we'd done a number of songs...with everybody playing and singing together and they were used to me doing it and I was used to doing it that way.

The mood was just very intense. I mean when they come into a room... I've been around those personalities for a long time, and the four of them take over a room. They are four distinct personalities and any one of the four is quite overpowering and together they're just a joy to be with. It's just a hoot to see them interact. And they were bent on getting it right and were on a mission.

["Ohio" was recorded at The Record Plant] ... on an old Quad-Eight console, an eight-track console that was modified where you could probably do 16 at one time without using... with just direct patches. We had a rented 3M machine from Heiders, probably a 79, 24-track.

[Using some of Wally Heiders equipment] ... yeah just because I really liked his machines and rented them all the time to bring over there. And he had enough extras where he did have a good rental business. Amp mics...I've always used Shure 57s... it was back in the days when I still used SM-57s on the snare and on toms and on snare and on high hats. I had a couple of Noymans on the overheads... it was after I discovered the D12 for kicks so probably the D12 on kicks... and vocal mics... I probably had some Shures just because the amps were in the room and I needed more separation. So I probably wasn't using Neumans on the vocals just because it was loud and everybody was in the room together.

TB: And all four musicians stayed in the room and helped mix?

BH: Oh yeah we all got in there and pretty much just mixed it together. Everybody has their input and there's no referees and it's just... you get on with it.

TB: The story that David has written and that I've heard is that he saw the picture in Life magazine and pretty much gave it to Neil Young as something kind of a challenge or a spur to write something and he did. Is that the story that you're familiar with?

BH: I've heard that story and I've read that story and all I know is he came in with the song and they had rehearsed it. I love the way the B-side got to be. And the B-side is "Find the Cost of Freedom". While they were listening to the mix and finishing up the mix they said "we don't have a B-side, we need a B-side for this."

So they had been rehearsing also "Find the Cost of Freedom" because they did that at the close of the show. So I went out and set up four chairs so they'd be knee to knee sitting facing each other and set up four vocal mics and a guitar mic for Stephen because he was gonna play guitar. Once I was set up they went out there and sat knee to knee with the four vocal mics and Stephen started playing guitar and then they started singing and sang it through. And before they could come in I rewound the tape, put it on another five tracks, and rolled it again, and they heard the guitar so they knew what was going on and waited for the vocal to come in and Stephen played along with himself, a little on guitar, played the little fills and stuff...

In fifteen minutes we had "Find the Cost of Freedom".

We air freighted tapes to New York and I also know, well I don't know, as I recall we had some acetates cut in LA and Atlantic in LA got it on the radio there and as fast as they could they got it mastered and pressed in New York.

TB: Do you recall hearing it on the radio for the first time.

BH: No. I do recall that AM wouldn't play it and it was very controversial that AM wouldn't play it and FM, the underground, all the FM stations started playing it... and it got up in the 30s or so just with FM play and at that point FM was pretty underground and AM was the deal. But they tried to ban it."

Play and listen to a MP3 sample clip of "Ohio" (studio version) or live in concert. (note*)

kent state life magazine cover
The Life Magazine (May 15, 1970) issue which inspired Neil Young to write the song "Ohio"
The Anniversaries of Kent State

CSN performed at Kent State University on May 4, 1997 during the 27th annual commemoration of the 1970 shootings. The group played at the end of the commemoration ceremony, held in honor of the 4 dead in Ohio and the 13 wounded:

"Crosby, Stills and Nash played an intricate role in the history of May 4," said Steve Skovensky, a senior family studies major and co-chair of the May 4 Task Force. "Their music is woven into the fabric of the people, the feelings and the pictures of May 4. This commemoration is important to them, and their being here will help serve the purpose of remembering and educating," said Michael Lee, professor of physics and May 4 Task Force adviser.

More recently, from NCTimes.net, former basketball star and broadcaster Bill Walton, who participated in antiwar demonstrations while an All-American at UCLA, believes the Kent State tragedy should stay fresh.

"'It definitely should not be forgotten,'' said Walton. 'This is one of the bleakest moments in our country's history. It was a terrible, terrible thing, and you need to keep that story alive so it never happens again. "

kent state banner

kent-state-four

peace-flag
Comment on "Ohio"

Care to comment and add your thoughts on the meaning and significance of "Ohio"?
Please comment in the guestbook.

More commentary on Kent State shootings

Excerpted from the article "An Analysis of Music and Lyrics in Relation to American Culture in the 1960s" on Epinions by Andrew Lasho. Lasho interprets the meaning of the lyrics to "For What It's Worth" by Stephen Stills of The Buffalo Springfield:

"Neil Young's other anti-war anthem came with his group Buffalo Springfield. 'For What It's Worth' co-written by Stephen Stills in 1966 has become one of the most acclaimed anti-war songs of the 1960s. The lines "Paranoia strikes deep / Into your life it will creep / It starts when you're always afraid / You step out of line, the man come and take you away" speak of the control that the government had over the people of the United States, and how those people were feeling at the time. The chorus, "I think it's time we stop, children, what's that sound / Everybody look what's going down" speaks to the listeners and tells them to evaluate the war effort in Vietnam, and how futile it is."
Links on Kent State Massacre

* Play and listen to a MP3 sample clip of "Ohio" (studio version) or live in concert. (note*)

* Read reviews and excerpts from the book Four Dead in Ohio: Was There a Conspiracy at Kent State by William A. Gordon

* PATTI SMITH covers 'Ohio' on the 34th anniversary, May 4, 2004, during a performance at Brooklyn, New York's Warsaw Club.

* More on the song "Ohio" performed by David Crosby and Neil Young at a Benefit For the Arts Outreach at the Valley Music Festival in Santa Ynez, CA on September 28, 2003.

* Also see Tell Us The Truth Tour concert review of REM's Mike Mills, Steve Earle, Billy Bragg, and Tom Morella covering 'Ohio' on November 25, 2003. Listen to a sample clip of The Live Concert Recording of Billy Bragg performing "Ohio"

* More on Bob Dylan's song "Blowin In The Wind".

* See lyrics analysis of John Lennon's song "Imagine".

* Also, see Music and the 60's, Is Protest Music Dead?, Protest Songs and Protest Songs Listing.

* Also, see Isley Brothers cover "Ohio" on the Isleys’ 1971 Givin’ It Back, done as a nine-minute medley with Hendrix’s “Machine Gun.”

"At the time the Isleys were criticized for deviating from the original opening line, “Tin soldiers and Nixon’s coming,” instead singing “Tin soldiers with guns they’re coming.” It’s not clear why they changed it.

Perhaps they wanted to make the song more timeless? Even without the image of Dick Nixon, the Isley version of “Ohio” is a bone chiller. While Neil Young captured the rage and anger in the original, the Isleys captured the fear of watching a government violently turn against its own people."

* Rolling Stone's 500 Greatest Songs of All Times - Crosby, Stills, Nash & Young's "Ohio"

* VH-1's Student and Teacher Site

* VH-1's "25 Greatest Protest Songs Countdown" and Study Guide for Students.

* Anti-War Music

* Kent State Memories - Wounded Student Alan Canfora

* Kent State, May 4, 1970: America Kills Its Children

* Peace Music: Where Have All The Hippies Gone?

* Kent State University May 4 Special Collections & Archives Home Page

* Kent State: The day America murdered it's children

* This summer I hear the drumming, Four dead in Ohio

* May 4 Archive and Best Kent State 1970 LINKS.

* Vietnam War Internet Links - Wellesley College

* Using Folk and Protest Music to Understand American History, 1963-1973

* The State of Today's Protest Music or Why Neil Young Is Wrong by Stephan Smith-Said Songs of Protest - "Where Have All The Flowers Gone" by Kingston Trio, "I Ain't Marching Anymore" by Phil Ochs, more

Play and listen to a MP3 sample clip of "Ohio" (studio version) or live in concert. (note*)

"Ohio" lyrics by Neil Young

More commentary on Kent State shootings

Neil Young Lyrics Analysis

Thrasher's Wheat - A Neil Young Archives

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Confession of error ~ is a voluntary confession on behalf of the prosecution in a nutshell

2007-06-18T01:13:00.000-07:00

Error coram nobis
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A writ of error coram nobis is a writ which is used to inform a court (usually an appeals court) of facts not on the record despite due diligence by the party filing the writ (the petitioner). It is usually considered extraordinary in nature. The state of Arkansas Supreme Court has explained how such a writ is allowed:

* A writ of error coram nobis is an extraordinarily rare remedy, known more for its denial than its approval.
* The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature.
* The only reasons for issuing such a writ (in the case of Criminal Appeals) is "in one of four categories: (1) insanity at the time of trial; (2) a coerced guilty plea; (3) material evidence withheld by the prosecutor; or (4) a third-party confession to the crime that occurs during the time between conviction and appeal."
* Coram nobis proceedings are attended by a strong presumption that the original judgment was valid.
* Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief; in the absence of a valid excuse for delay, the petition will be denied.
* With regard to seeking a writ of error coram nobis, due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) he could not, in the exercise of due diligence, have presented the fact at trial; or (3) upon discovering the fact, he did not delay bringing the petition.
* The supreme court does not lightly overrule cases and applies a strong presumption in favor of the validity of prior decisions; as a matter of public policy, it is necessary to uphold prior decisions unless a great injury or injustice would result.
* A mere claim of newly discovered evidence in itself is not a basis for relief under coram nobis; the petitioner must show that a fundamental error occurred, such that the facts as alleged as grounds for its issuance are such that there is a reasonable probability that the judgment of conviction would not have been rendered or would have been prevented had the exculpatory evidence been disclosed at trial, not that the newly discovered evidence might have produced a different result had it been known to judge and jury.
* It is the petitioner's burden to show that a writ of error coram nobis was warranted; the supreme court would not undertake to reinvest jurisdiction in the trial court just for the purpose of allowing petitioner to conduct a "fishing expedition."

Echols v. Arkansas, 125 S.W.3d 153

thanks rod........you are awesome

2007-06-09T00:49:00.000-07:00

Drafting Motions for Novices & Laypersons

Rod Borlase, JD, MLS (RBC HomePage)

For permission to use.
Copyright 2000 Rod Borlase

Law students, neophyte lawyers, and lay-litigants sooner or later need to draft a pleading and, more often, motions to file with courts. It is often confusing to them and, unfortunately but understandably, there is less help available for them than one might expect. To be sure, there are "form books," but a slavish reliance on form books - what I prefer to call "sample books" - is a quick way to get one's case, and perhaps one's self, in trouble before the court. Every case differs, and those differences must be reflected in one's pleadings and motions, and no book of samples adequately reflects such diversity.

"Pleading & Motion Practice" is a sub-art and specialized craft of the lawyer's general art and craft. Many law firms hire persons just for this expertise. You can find a very interesting discussion of pleading practice in American Jurisprudence Trials: "Tactics and Strategy of Pleading" 3 Am. Jur. Trials 681.

Having now underscored pleading and motion practice's importance, I need to differentiate between what is really important and what is not: The Substance is important - Form is much less important! Most people I encounter have that turned around - They think they know what the pleading or motion must say, but have little idea what it should look like. Well, although form has its place, substance is the main thing.

What Is a Pleading, & What Is Its Purpose?

While the word pleading is often used to denote both pleadings and motions, they are different at a more fundamental level. Pleadings have to do with initiating or responding to a lawsuit as a whole, often called a "Complaint," "Claim" or "Petition," and requiring an "Answer" or "Response." The exact terminology is determined by the jurisdiction - e.g., Texas, Arizona, or federal versus state courts - or sometimes by the statute under which one's claim is brought. Pleadings are filed with the court and then officially "served" upon the "Defendant" or "Respondent," and he or she must "Answer" or
"Respond."

It is this formality of "service" that brings the parties together before the court and under its authority. After that, the formalities of service, for motions particularly, are much easier and less formal. Serving motions is generally as easy as filing the motion with the court, along with a "Certification of Service" tacked on to the end, promising that a true and complete copy was mailed to all other parties, and then doing so. With that, the burden of showing that the motion was not received shifts to the party claiming they did not get it.

There are other pleadings too, i.e., that impact the entire suit and the parties before the court, such as "Intervenors" - people who have some stake in your lawsuit - and "Third-Party Joinder" - someone that a current party believes has responsibility within your suit - and "Special Appearances" - where one of the parties served may believe they have nothing to do with your suit or that the court has noauthority to bring them into it.

The key thing about pleadings is that they affect the whole of the suit, serve notice upon all parties that they are involved in a lawsuit, and what that suit is about, and assemble all parties before the court at a certain time and make them all subject to that court's authority. Although there may be some motions during the pleading process, most motions arise after the suit is established and the active litigation process begins. Motions during the pleading process remain awkward and expensive "service" problems, akin to basic pleadings.

What Is a Motion, & What Is Its Purpose?

Motions occur mostly after the lawsuit is established, and concern the lawsuit's conduct. Motions can be about virtually anything that litigants are entitled to and may be brought by any party to the suit. For instance, if a criminal defendant believes some evidence was illegally secured by the police, he may file with the court a Motion to Suppress Evidence. Sometimes an opponent will refuse to disclose information that the law requires or to which you are entitled, and you must file with the court a Discovery Motion or Motion to Compel Discovery, accompanied perhaps with a Motion for Sanctions. If there is some question whether certain evidence will be material and relevant to the purpose for which it may be introduced, especially if the evidence is highly prejudicial, then the attorney may file with the court a Motion in Limine, seeking the court's protection from the opponent's exhibiting such evidence to the jury before the court has officially ruled on its admissibility.

The number of possible motions in a given case is almost infinite, but generally should be used sparingly. Like "objections," if used to excess, both judges and juries get irritated, and one may easily find oneself winning the battles, but losing the war. File motions that matter, i.e., that have some palpable prospect of affecting the trial's outcome, and avoid other motions. When confronted by vexatious opponents who file trivial motion after trivial motion, my approach was usually to raise only token resistance, pointing out to the court that this or that motion has only marginal bearing, if any, on the suit and simply imposes upon the court's good nature and the jury's time and convenience. There comes a point, however, where "rambo tactics" become truly obstructive and vexatious, and the court may sanction the party, his lawyer, or both, and a motion requesting that may be appropriate.

Motions are different.

For most of this essay, I will be discussing motions, less pleadings. Note that difference.

Layout or Format:

Too much fretting is put into layout - There's nothing holy about it. It is simply a functional style, just like you would use in a business letter, date at the top, followed by addressee, followed by subject matter line, followed by salutation, followed by the letter's substance or body, followed by closing and ending with a signature and return address, etc.

It's that simple except, with pleadings and motions, the functional style is modified slightly to supply information needed to keep all the correspondence in the proper file. For instance, you need first to provide the Cause Number (top, centered), followed by the Style - which is composed of the Parties (left of center) and the Jurisdictional Court (right of center) - followed by the motions general-purpose Caption (centered caps underlined), followed by the Court Salutation (caps left), followed by the Body - this part needs more elaboration (below) - followed by the Prayer, precisely listing what you're
asking the court to do or Order, followed by the closing, signature and address of Movant, followed by the Certification of Service.

That's the basic layout of a motion and, with some small modifications, the layout of a pleading too, an Original Petition or Original Answer, etc. There's nothing terribly holy about this stuff, except that you want all this information in the correct order and place so that the court and all the parties can readily find and identify the information they need when and as they need it.

One of the easiest ways to get the format is to steal it! Every pleading or motion starts with the Cause Number and Style - If you become involved in a lawsuit, papers will be served on you, and they will have the Cause Number and Style on them. Steal that information and get on to the important part! Don't make this harder than it is, and concentrate on getting the Body and Prayer right. That's the part that counts.

Body & Prayer:

Body - A motion's body begins after the Caption, centered, for instance:

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

and the Salutation to the Court, set fully to the left:

TO THE HONORABLE JUDGE OF SAID COURT:

The Body's first element is the Opening Paragraph, an important, perhaps the most important paragraph in the motion's body. In this paragraph, the movant puts the "who, what, when, why, where, and how" of the entire motion in one clear, carefully drafted, clear, properly structured, clear, complete, clear, accurate, and clear sentence.

Although some contemporary draftspersons disagree, I believe this paragraph should follow custom, beginning with the customary COMES NOW..., followed by the movant's name (i.e., name of party filing the motion) and role in the proceedings, followed by legal counsel's name or, if unrepresented, "pro se," followed by the motion's legal authority, and then precisely/concisely what the motion is about, and then the "tender" of what will be shown at the hearing to support and justify the motion.

For example, here's a simple sample of an Opening Paragraph for a motion asking the court to order
the parties to non-binding mediation:

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Jonathan C. Witherspoon, Plaintiff in the above-styled and numbered
Cause, and Movant herein, by his attorney Phillip N. Windflur, pursuant to Chapter 154 of the
Texas Civil Practice & Remedies Code and this Court's Local Rules, and respectfully moves
this Honorable Court to Order this Cause's Parties to non-binding Mediation within thirty (30)
calendar days from Hearing hereon, and for grounds therefor would respectfully show unto this

Honorable Court as follows:

[ After this, the Body contains necessary averments and showing
of required elements to support Movant's request, each in separate
paragraphs, each set off by Roman numerals, I, II, III, IV, V .... ]

There are some very good practitioners who strongly disagree with my style's formal tone and older, more traditional fashion. I disagree with them, but the reasons go well beyond this treatment. If you agree with them and not with me, you may omit the flourishes, the "Honorable Courts" and "respectfully," the "hereins" and "therefors," and amend the syntax accordingly. Remember: We're not tampering here with holy words!

Body continued - Your motion's elements or required "showings" -

Your motion must accomplish two things before the court will hear it, and you must aver them to the court in your motion: 1) That the law allows the court to grant you the requested relief and 2) generally what facts or circumstances about your case or situation justify the requested relief. You must list this in the body, each element in its own paragraph, each paragraph separated by Roman numerals.

Note, however, you are not putting complete arguments or any evidence in the motion - Save that for the Hearing before the court, when everyone is present to state their full point of view. In the motion, what you intend to show or prove should suffice.

Continuing with the Mediation Motion example:

I.

Chapter 154 of the Texas Practice & Remedies Code expresses the Texas Legislature's
policy and intent that voluntary resolution of contested matters be encouraged (§ 154.002)
and, more specifically, provides for "Referral of Pending Disputes for Alternative Dispute
Resolution Procedures" at § 154.021; and further,

II.

Movant would show, the contested issues being partition of partnership assets and
liabilities, not liability for partnership dissolution, the Parties are best situated to accomplish fair
and equitable voluntary division under facilitated negotiation, namely Mediation; and further,

III.

Movant would show, the economies of the Justice System and of this Honorable Court,
and of the Parties' current and future respective costs and interests, indicate that the Texas
Legislature's stated policies and intents should be applied in this matter; wherefore, premises
considered, ...

[ This is the end of the motion's Body, which leads directly in the
Prayer that follows (below). ]

Prayer - Exactly, step-by-step, in sequence, what do you want the court to do? Exactly! Remember: The court is not permitted to grant any relief that was not requested in the motion. Themovant must request exactly what he or she wants. Toward the end of this segment, I will provide a "catch-all" provision that may help cure omissions and oversights, but the key is to do it right - Ask precisely for the exact relief you need!

Notice that the Prayer is a list of actions the movant is requesting that the court take, and every item begins (in the independent clause at least) with an action verb: Grant ... Set ... Order ... etc.

Continuing with our Mediation Motion example:

PRAYER

Movant hereby prays that this Honorable Court:
1) Grant Movant's instant Plaintiff's Motion for Court-Ordered Mediation; and

2) Order the Parties to voluntary Mediation within thirty (30) calendar days of this
Honorable Court's Order to Mediation, or within such reasonable time thereafter as
may be practical and as the Parties may mutually agree and file with this Honorable
Court; or, alternatively,

3) Should Objection to movant's instant motion be timely filed, Set a time, date and
place for Hearing upon this motion; and

4) Grant such other or additional relief to which movant may be justly entitled at law
or in equity.

Respectfully submitted,
etc.

Notice that last item in the Prayer, item number 4. That is the "catch-all" provision that may enable a court to grant relief that was not properly requested or adequately supported in the motion itself. One should simply never file a pleading or motion without this last element. If one doesn't need it, no harm has been done - But, if one does need it, there is no substitute for it. Without it, the court's hands are tied. It cannot offer relief that was not requested.

Certification of Service:

As noted earlier, pleadings that institute suit and bring parties under the court's jurisdiction and authority must ordinarily be served upon each party by an officer of the court, a constable, sheriff or some such. After the suit is established and the parties know they must comply with the court's rules and orders, the process of exchanging information generally becomes less complex and certainly less expensive.

Motions are generally served in the following fashion: At the end of the motion, a "Certification of Service" is appended, assuring the court that a "true and correct copy" of the motion was mailed, postage pre-paid, through the United States Postal Service to each party at its official addressestablished with the court during the pleading and answering process.

CERTIFICATION OF SERVICE

I, the undersigned movant in the above and foregoing Plaintiff's Motion for
Court-Ordered Mediation, hereby certify that a true and correct copy of said
Motion was this date deposited with the United States Postal Service, postage
pre-paid and properly addressed to each Party in the above-styled and
numbered Cause.
___________________________________________
Movant's Signature & Date of Mailing

In some instances, it may be convenient for one party to simply hand the motion to opposing parties or their counsel of record. If that's the case, be sure you tell the truth - It is after all your sworn word to the court, and the last thing you want is for the court to doubt your truthfulness:

CERTIFICATION OF SERVICE
I, ..., hereby certify that a true and correct copy of said Motion was this date
personally handed to each Party in the above-styled and numbered Cause.
____________________________________________
Movant's Signature & Date of Delivery

Put together, the motion looks something like this:

Cause Number 9-1234567

___________________________________________________________________
§
Jonathan C. Witherspoon, § IN THE CIVIL DISTRICT COURT,
Plaintiff §
§
§ OF HARRIS COUNTY, TEXAS
versus §
§ ______________________
§
Geofferey L. Witherspoon, § 209^TH JUDICIAL DISTRICT
Defendant §
___________________________________________________________________

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Jonathan C. Witherspoon, Plaintiff in the above-styled and numbered
Cause, and Movant herein, by his attorney Phillip N. Windflur, pursuant to Chapter 154 of
the Texas Civil Practice & Remedies Code and this Court's Local Rules, and respectfully
moves this Honorable Court to Order this Cause's Parties to non-binding Mediation within
thirty (30) calendar days from Hearing hereon, and for grounds therefor would respectfully
show unto this Honorable Court as follows:

I.

Chapter 154 of the Texas Practice & Remedies Code expresses the Texas Legislature's
policy and intent that voluntary resolution of contested matters be encouraged (§ 154.002)
and, more specifically, provides for "Referral of Pending Disputes for Alternative
Dispute Resolution Procedures" at § 154.021; and further,

II.

Movant would show, the contested issues being partition of partnership assets and liabilities,
not liability for partnership dissolution, the Parties are best situated to accomplish fair and
equitable voluntary division under facilitated negotiation, namely Mediation; and further,

III.

Movant would show, the economies of the Justice System and of this Honorable Court, and
of the Parties' current and future respective costs and interests, indicate that the Texas
Legislature's stated policies and intents should be applied in this matter; wherefore,
premises considered,

PRAYER

Movant hereby prays that this Honorable Court:

1) Grant Movant's instant Plaintiff's Motion for Court-Ordered Mediation; and

2) Order the Parties to voluntary Mediation within thirty (30) calendar days of this Honorable
Court's Order to Mediation, or within such reasonable time thereafter as may be practical
and as the Parties may mutually agree and file with this Honorable Court; or, alternatively,

3) Should Objection to movant's instant motion be timely filed, Set a time, date and place for
Hearing upon this motion; and

4) Grant such other or additional relief to which movant may be justly entitled at law or in equity.

Respectfully submitted,

s/ . . .

Phillip N. Windflur, Esq.
( TBCN 1234567)
Attorney for Plaintiff
The Gables Suites, Suite 100
123 North Main Street
Houston, Texas 77002
(713) 123-4567
fax (713) 123-4568
beep (281) 234-5678
pnw@yahoo.com

CERTIFICATION OF SERVICE

I, the undersigned movant in the above and foregoing Plaintiff's Motion for Court-Ordered
Mediation, hereby certify that a true and correct copy of said Motion was this date deposited
with the United States Postal Service, postage pre-paid and properly addressed to each Party
in the above-styled and numbered Cause.

____________________________________________
Movant's Signature & Date of Mailing

The same motion less formally put:

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

TO THE HONORABLE JUDGE OF SAID COURT:

Jonathan C. Witherspoon, Plaintiff and Movant in this Cause, by his attorney
Phillip N. Windflur, pursuant to Chapter 154 of the Texas Civil Practice & Remedies Code
and this Court's Local Rules, moves the Court to Order the Parties to non-binding Mediation
within thirty (30) calendar days from Hearing hereon, and for grounds would show the Court
as follows:

Chapter 154 of the Texas Practice & Remedies Code expresses the Texas Legislature's
policy and intent that voluntary resolution of contested matters be encouraged (§ 154.002) and,
more specifically, provides for "Referral of Pending Disputes for Alternative Dispute Resolution
Procedures" at § 154.021; and further,

II.

The contested issues being partition of partnership assets and liabilities, not liability for
partnership dissolution, the Parties are best situated to accomplish fair and equitable voluntary
division under facilitated negotiation, namely Mediation; and further,

III.

The economies of the Justice System and of this Court, and of the Parties' current and future
respective costs and interests, indicate that the Texas Legislature's stated policies and intents should
be applied in this matter; accordingly,

PRAYER

Movant prays that this Court:

1) Grant Movant's Plaintiff's Motion for Court-Ordered Mediation; and

2) Order the Parties to Mediation within thirty (30) calendar days of this Court's Order to Mediation,
or within such reasonable time as may be practical and as the Parties may mutually agree and file
with the Court; or, alternatively,

3) Should Objection to this motion be timely filed, Set a time, date and place for Hearing of this
motion; and

4) Grant such other or additional relief to which movant may be justly entitled at law or in equity.

Respectfully submitted,

etc.

CERTIFICATION OF SERVICE

I, the undersigned movant in the foregoing Plaintiff's Motion for Court-Ordered Mediation,
certify that a true copy of this Motion was deposited this date with the United States Postal Service,
postage pre-paid and properly addressed to each Party in this Cause.

____________________________________________
Movant's Signature & Date of Mailing

my man is Superman

2007-05-28T03:06:00.000-07:00

Young Mc Lyrics

Know How Lyrics

Verse 1
-------

Some of the busiest rhymes ever made by man
Are goin' into this mic, written by this hand
Are comin' out of this mouth, made by this tongue
I'll tell you now my name, my name is Young
But so you think that it's your destiny
To get the best of me, but I suggest to be
Quiet, bro', don't even try it from the east and west of me
Takin' it and never breakin' it or even shakin' it
Groovin' it and always movin' it, cuz I'm not fakin' it
Pullin' out rhymes like books off the shelf
Born in England, raised in Hollis, taught to go for myself
This is stone cold rhymin', no frills, no fluffs
And it's no accident that these rhymes sound tough
I'm goin' off, baby, there's no turnin' back
I'm on your TV, on your album, cassette and 8-track
And when the show is finally finished I'll be takin' my bow
My name is Young, and yo I got know-how, you know what I'm sayin'?

I got know-how
Party people, I got know...how
I kick it just like this...

Verse 2
-------

I got juice like the president, I'm makin' rappers hesitant
Invite me to your house and I'll be chillin' like a resident
Yes, cuz I'm that type of man
Cuz I make myself at home no matter where I am
I got it rollin' like thunder, makin' y'all wonder
Why I'm on top with all the other rappers under
I make no errors, mistakes or blunders
It's like a wedding, let no man put asunder
My name is Young MC, I like to rock mic well
Cuz when I get up on the mic I just release my spell
It's no hocus-pocus, I'll just get you into focus
And swarm all over you just like a horde of locusts
Smooth operator, female persuader
Spot a fly girl and in a week I'm gonna date her
I got the kind of style for the here and the now
And I can do it cuz I got know-how, you know what I'm sayin'?

I got know-how
Party people, I got know...how
Bust it!

Verse 3
-------

MC's I'll ruin, cuz I know what I'm doin'
I'll treat 'em like doublemint gum and start chewin'
I spit 'em out when the flavour's gone
And I repeat the chewin' practice 'til the break of dawn
Cuz I'm tough like a bone, sly like Stallone
Rockin' and clockin' on the microphone
Smooth like a mirror, in hearts I strike terror
Rhymes like runs and hits with no errors
Cold like a blizzard, on the mic I am the wizard
With the funky fresh rhymes comin' out of my gizzard
Never sneezin', never coughin', I rock the mic often
Hard as a rock and no sign I'll soften
Makin' sure I get respect, on my mind rhymes connect
I start to build like a builder from a architect
Movin' all around, above and under the ground
You see my face, and then you hear my sound
Comin' atcha with the mic in hand
I'm gonna take command just the way I planned
Cuz I'm a one-man band and you are my fan
Don't you understand? I'm like Superman
Yeah, the Man of Steel, don't you know the deal?
You better be for real, I got sex appeal
This is what I feel, and this here's my vow
And now you know the brother with know-how, you know what I'm sayin'?

I got know-how...and I'm chillin', never illin'
In my mouth I got two fillin's...whatever!
I'm on the mic, cold stone gettin' over
My name is Young MC, known as the fly casanova, kick it...

['Apache' until fade]

God~spends so much exclusive and private time together yet Some people might take a much broader........

2007-04-01T03:10:00.000-07:00

Some people might take a much broader, theological, psychological or sociological approach to the problem of homosexual priests and bishops. I prefer to stay on the more specific but lethal problem in the indefensible practice of placing homosexual priests into living situations and associations with other men - thereby creating a double moral standard for heterosexual vs. homosexual priests.
The essay is a brief logical explanation of the inherent conundrum concerning that problem.

The Real Story about Celibacy
Rev. James R. Haley

Let me see if I have this completely “straight” from my Catholic moral training:

Mr. X, a heterosexual man, can only become a priest if he makes a vow of celibacy – if he vows to remain unmarried to a woman.

With his priestly vow of celibacy per se he does not, as is frequently believed and wrongly reported, make a vow to refrain from sex. But since he vows to remain unmarried, he is required by his Catholic faith to refrain from sex. He must remain chaste – he cannot have sex because, according to his Catholic faith, sex outside of marriage is morally wrong.

ü Since he cannot have sex, he is taught by his Catholic faith that he should be modest in his relations with women - he should observe conventional and prudent proprieties in his speech, behavior and dress around women.

ü Since he should be prudent in his associations with women, he is instructed by his Catholic faith that he should avoid the temptations inherent in certain situations, relationships and behaviors – he should avoid the near occasions of sin with women.

ü Since he should avoid the near occasions of sin, he is taught by his Catholic faith that it would be wrong for him, without a compelling reason, to live with women, or to associate exclusively with women in situations outside of his work or the necessities of his ministry, or to develop particularly close, or personal, or secret, or intimate relationships with women. And of course it would be wrong for him to access pornography as a substitute for the sex he cannot have.

If he were to engage in such imprudent living arrangements, associations and behaviors, and if these improper situations were not kept wickedly secret, they would rightly create a scandal for the faithful who would, quite correctly, believe that such imprudent living arrangements, associations and behaviors would naturally lead to serious sins with women in thoughts, words and deeds. And thus these situations would seem to violate the intent and the spirit of his priestly vow of celibacy - to remain unmarried - to remain personally, emotionally and intimately un-associated with a woman.

Such imprudent living arrangements, associations and behaviors could eventually lead to the direct violation of his priestly vow of celibacy by leading to a scandalous and sinful marriage between the priest and "that woman." According to the canon law of the Church, such a marriage would not be recognized as a valid marriage, and the consequence to the priest would be an immediate removal from ecclesiastical office by virtue of the law itself (Canon 194).

I know many heterosexual priests who have suffered such a fate.

--------------------------------------------------------------------------------

Mr. Y, a homosexual man, can only become a priest if he makes a vow of celibacy - if he vows to remain unmarried to a woman.

He does not vow to remain unmarried to a man because, according to his Catholic faith, he can never marry a man - he cannot vow to give up what he cannot have in the first place.

Therefore, Mr. Y's priestly vow of celibacy is an easy, ludicrous and utterly pointless promise for him to make since he does not want to be married to a woman. (It wasn't so easy, ludicrous or utterly pointless, however, for Mr. X.)

With his priestly vow of celibacy per se he does not, as is frequently believed and wrongly reported, make a vow to refrain from sex. He makes a vow to remain unmarried. But since he has vowed to remain unmarried to a woman, and since he cannot validly “marry” another man, he is required by his Catholic faith to remain perpetually chaste - he can never have sex.

ü Since he can never have sex, he is taught by his Catholic faith that he should be exceptionally modest - he should observe conventional and prudent proprieties in his speech, behavior and dress around other men.

ü Since he should be prudent in his associations with men, he is instructed by his Catholic faith that he should avoid the temptations inherent in certain situations, relationships and behaviors - he should avoid the near occasions of sin with men.

ü Since he should avoid the near occasions of sin, he is taught by his Catholic faith that it would be wrong for him, without a compelling reason, to live with other men, or to associate exclusively with men in situations outside of his work or the necessities of his ministry, or to develop particularly close, or personal, or secret, or intimate relationships with other men. And of course it would be wrong for him to access pornography as a substitute for the sex he can never have.

If he were to engage in such imprudent living arrangements, associations and behaviors, and if these improper situations were not kept wickedly secret, they would rightly create a scandal for the faithful who would, quite correctly, believe that such imprudent living arrangements, associations and behaviors would "naturally" lead to serious sins with other men in thoughts, words and deeds.

However, in Mr. Y's case, unlike Mr. X’s, such imprudent and immoral living arrangements, associations and behaviors could not be said to violate the spirit and intent of his utterly pointless and ludicrous priestly vow of celibacy - to remain unmarried to a woman - to remain personally, emotionally and intimately un-associated with a woman.

Such imprudent living arrangements, associations and behaviors could easily, however, lead to many personal, lifelong, secret, exclusive, intimate and emotionally fulfilling relationships with other men – even to many homosexual relationships in which there is no sexual contact and thus those relationships that could be considered “celibate” by using a much more confined and secular definition of that word – certainly not the fuller definition used in the priestly vow of celibacy to which Father X is held bound.

If Father Y attempts to “marry” his homosexual partner, the Church would certainly not recognize the “marriage.” In fact, the Church would not even recognize such a union as an attempt at “marriage.” And since such a union would not be considered a “marriage,” there would be no immediate removal from ecclesiastical office if such a union formed. (Unless, I suppose, the homosexual priest was foolish enough to attempt a “civil union” in the state of Massachusetts.)

Canon 1055, and its frequent application in marriage tribunals, exclusively defines marriage as a covenant between a man and a woman. The reality of a personal, committed, exclusive, intimate, emotionally fulfilling and even non-sexual relationship between a homosexual priest and another man would therefore present a very novel and problematic case, because canon law never mentions homosexual priests at all. Nor does it mention their potential for unions that for-all-intents-and-purposes could be considered quasi-marriages. It is as if neither homosexual priests nor their intense or intimate unions ever existed in reality.

What is the result of this morality in the real world of the Catholic rectory?

The outcome is that Fr Y, the homosexual priest, is potentially allowed to have, certainly not prevented from having, one might even say continually tempted to have, many personal, lifelong, secret, exclusive, intimate and emotionally fulfilling relationships with other men, whom he can even live with, and associate with almost constantly.

Fr. X, the heterosexual priest, on the other hand, is discouraged from having, forbidden to have, and actively prevented from having such personal, lifelong, secret, exclusive, intimate, and emotionally fulfilling relationships with women, whom he certainly cannot live with, nor with whom he can constantly associate.

Said simply: Fr. X, the heterosexual priest, cannot live his life with women. Fr. Y, the homosexual priest, is conveniently "forced" to live his life with other men.

So what is the compelling reason for such duplicitous moral standards? What is the compelling reason that Fr. Y is forced into such imprudent and foolish living arrangements for perhaps the entirety of his priestly life? Well, the direct reason is that he is forced to live in such imprudent arrangements by his shepherd and moral guide, the bishop who assigns him to his rectory, or by the abbot who directs his religious community. And in placing their priests in living situations together, the bishop or abbot is following the dictates and recommendations of ecclesiastical documents and of canon law, which encourage priests to live together, to support one another, and to closely associate with one another throughout their priestly lives.

By assigning religious men to live only with men, and religious women to live only with women, the bishop or abbot is apparently also following the tradition and moral prudence, or one can more properly say, the moral necessity, of keeping religious men and women separated from one another - a very prudent practice because, in the words of an honest speaker concerning human nature and Christian love: “There is nothing more naturally attractive for a Christian man in love with God, than a Christian woman in love with God.”

But that same-sex living assignment quickly and clearly runs seriously afoul when the sexual orientations and desires are reversed from their norm and, even more so, when those sexual orientations remain hidden from the outside world – that leads to the very improper, imprudent and secret situation that the Church was trying to prevent. In other words: There is nothing more “naturally” attractive for a homosexual man in love with God, than another homosexual man in love with God.

So ironically, tragically, inexplicably, it is the Church itself, the model and guide to moral life, that is encouraging, advocating and requiring the perpetual near occasion of sin for homosexual priests, and, in turn, creating an extremely uncomfortable situation for the heterosexual priests who are not interested in forming one of those personal, lifelong, secret, exclusive, intimate and emotionally fulfilling relationships with other men. And this non-interest from the heterosexual priest is a frequent cause of alienation, resentment and bitterness from the homosexual priests who would prefer to live with, and associate with, other homosexual priests, especially when so many other homosexual priests are afforded that “secret” privilege. In simple terms: the straight priest is neither wanted nor welcome among the homosexual priests.

Of course, all of this moral double-dealing leads to many situations of outright hypocrisy and utter dishonesty. For example, how can a homosexual priest who lives with another man, rightly tell the young “couple” in high school that it would be morally dangerous to spend so much exclusive and private time together, or tell the college kids that it would be improper for them to share intimate coed living arrangements, or to instruct the “couple in love” that they should not be living together? A priest should not only be the teacher of correct moral behavior, but should also be the model of that correct moral behavior. What is he supposed to say to these enquiring minds that search for the Catholic truth from their priests and bishops: “Just look at me and my life. It’s perfectly ok to do what you are doing, just as long as you remain celibate?” Or let me now carefully qualify that: “just as long as you have kept celibate for three years, and are willing to keep your sexual orientation and desires secret from others in your public life.”

What nonsense. What utter moral nonsense!

It seems to me that the double celibacy requirement has encouraged homosexual men in larger and larger percentages that, as you describe, are more than happy to "give up" traditional marriage for the priesthood. From what you have described, as power structures have evolved through the years in the Church, homosexual men have become favored. Their tendencies and nature were hidden from the public under the quiet cloak of "celibacy." As the pressure of greater numbers and power of homosexual men in the Church gains, the numbers of heterosexual men further decline.

Your document describes the dilemma and the extreme irony that the current situation is for many - a curtain or front behind which many homosexual priests can hide. Could it be entitled something like: Can a homosexual priest be celibate? [Anonymous]

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Waste money on loser lawyers Welder, Leshin & Mahaffey~ Colleen McHugh............

2007-03-31T05:32:00.000-07:00

well robbing the hood is their specialty...so they ain't exactly yellow bellied 'bout them gambling with the finance of the "education code". Hail, them folks sold the People of Texas a Smelly bill of goods when they claimed that lottery was going to finance "education" for the schools.... the only thing i see is the corrupt TAKS INVENTORS.... who have seemed to LOVE to wish the children of the Public schools of the CCISD.... A Happy VERY Merry Un Birthday to you...to you ....to you.

Waste money on loser lawyers Welder, Leshin & Mahaffey~ Colleen McHugh... why would Governor rick perry's personal attorney freelance to screw the children of CCISD out of 45K?

FORTY FIVE THOUSAND DOLLARS!

I say we sue.....after all we paid for nothing!

CCISD Parents are pissed ...We are tire of OUR money being spent for nothing and your tricks are presented as for free.

Wake up~ you have slipped in to the Twilight Zone.

Brady v Maryland

2007-02-26T01:38:00.000-08:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1012-03

JACKIE RUSSELL KEETER, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

HAMILTON COUNTY

Holcomb, J., filed a dissenting opinion, in which Johnson, J., joined..

A jury found appellant guilty of indecency with a child, found the enhancement paragraphs true, and assessed punishment at imprisonment for life and a $10,000 fine. On direct appeal, appellant argued that the trial court erred in denying his motion for new trial because (a) the complaining witness recanted her testimony shortly after trial on the merits and (b) the State did not disclose exculpatory evidence relating to that recantation. The Tenth Court of Appeals reversed, holding that the trial court abused its discretion because the recantation was credible. A majority of this Court reversed the judgment of the court of appeals and remanded the case to that court for resolution of appellant's Brady claim. (1) I dissented to the reversal, because, in my opinion, the court of appeals correctly concluded that the trial court abused its discretion in not granting the motion for new trial due to the newly discovered, material recantation evidence. On remand, the Tenth Court of Appeals again reversed the judgment of the trial court, holding that the State withheld material impeachment evidence. Today, the majority again reverses the judgment of the court of appeals. Because the record evidence clearly supports the court of appeals' holding that the State withheld material evidence, I again dissent.

I strongly disagree that appellant did not preserve error of his Brady claim. Texas Rule of Appellate Procedure 21.1 provides that a motion for new trial is a prerequisite to presenting a point of error on appeal when necessary to adduce facts not in the record. At the hearing on the motion for new trial, appellant adduced facts that Brady evidence was conveyed to the State and that Brady material was never conveyed to the defense. See Harvey v. State, 201 S.W.2d 42, 45 (Tex. Crim. App. 1947) (op. on rehr'g) (appellant must provide reasonable notice to the trial judge and the State of errors that occurred or arose outside the trial proper). In appellant's first amended motion for new trial, he asserted that "Evidence establishing the defendant's innocence was withheld by a material prosecution witness." A first-year law student would recognize this to be a claim that Brady material was not turned over to the defense prior to trial. See id. (finding appellant did not preserve error of jury misconduct complaint because the motion for new trial contained no allegation that jury misconduct occurred); see also Tex. R. App. P. 21.3(e) (containing similar language). But more importantly, there is no doubt that the parties and the trial judge fully understood that a Brady claim was being litigated. (2) Indeed, the State even filed a letter in the appellate court in which specific references to Brady were made and arguing that the State is not required to turn over "evidence that is available equally to the defense and the prosecution" and "defendants must bear the responsibility for their failure to diligently seek its discovery." We have held that "No technical considerations or form of words" are required to preserve error for review. Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) (straightforward communication in plain English will suffice if it lets the trial judge know what the party wants and why he thinks himself entitled to it); see also Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994) ("Identifying challenged evidence as hearsay should generally be regarded as sufficiently specific objection."). We have held also that the State may not complain on appeal about the adequacy of a motion for new trial unless it lodged a complaint in the trial court. State v. Gonzalez, 855 S.W.2d 692, 694-95 (Tex. Crim. App. 1993). The State did not complain orally or by written motion that appellant's Brady claim was inadequate. See id.

It is clear that appellant preserved error. Tex. R. App. P. 33.1(a)(1)(A) (to preserve error on appeal, party must object with sufficient specificity to make the trial court aware of the complaint). The fact that appellant did not cite to Brady in his written motion for new trial or say the words Brady v. Maryland at the hearing, should not override the fact that the specific grounds of his motion were apparent from the context and both parties vigorously litigated the Brady claim. See Gallups v. State, 151 S.W.3d 196, 198 n.1 (Tex. Crim. App. 2004) (holding that appellant preserved error of state law claim under Tex. Code Crim. Proc. Ann. art. 14.05(1), even though he did not mention art. 14.05 in his motion to suppress); Tex. R. App. P. 33.1 (a)(1)(A). The majority's holding that appellant did not preserve error of his Brady claim will effectively overrule a long line of cases from this Court and engraft a greater burden onto Tex. R. App. P. 33.1 (a)(1)(A). (3)

Because the majority holds that appellant did not preserve error, it does not examine whether Brady evidence was conveyed and withheld or whether the evidence was "material" for purposes of a Brady claim. I would hold that the court of appeals did not err in concluding that Brady evidence was conveyed and withheld and that the evidence was material. Keeter v. State, 105 S.W.3d 137, 146-47 (Tex. App.--Waco 2003).

As the majority opinion explains, the complaining witness' father and step-mother both testified at the hearing on motion for new trial that they told the State before trial that, for a variety of reasons, they did not believe the complainant's accusations. (4) The prosecutor to whom this Brady material was allegedly relayed was at the hearing on the motion for new trial, but he did not controvert the two witnesses' assertions. (5) Additionally, the prosecutor, through his cross-examination of the witnesses, did not challenge that the evidence was relayed to him before trial. Rather, the prosecutor cross-examined the witnesses about when the information was relayed (whether it was one month before trial, three months before trial, or "last year"), whether the father and step-mother's beliefs about appellant's innocence was consistent and continuous, and whether there were other opportunities before trial to reassert their beliefs to the State that the complainant was lying. (6) Thus, because the State did not challenge the allegations that Brady material was conveyed, I would hold that, even under a deferential review of the trial court's ruling, (7)

the trial court abused its discretion in denying appellant's motion for new trial. See Banks v. Dretke, 540 U.S. 668, 675-76 (2004) ("When police or prosecutors conceal significant exculpatory or impeaching material in the State's possession, it is ordinarily incumbent on the State to set the record straight."); see also Tex. Code Crim. Proc. Ann. art. 201 ("It shall be the primary duty of the of all prosecuting attorneys . . . not to convict, but to see that justice is done. They shall not suppress facts or secret witnesses capable of establishing the innocence of the accused.") (emphasis added). Evidence is "material" if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 434 (1995); United States v. Bagley, 473 U.S. 667, 676 (1986); Thompson v. State, 841 S.W.2d 399, 404 (1992). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682. Brady evidence includes impeachment evidence as well as exculpatory evidence. See id. at 676.

I agree with the court of appeals that the evidence in question was material impeachment evidence because "Travis's and Rhonda's testimony had, by far, the highest potential to discredit [complainant's allegations]." Keeter v. State, 105 S.W.3d at 146. Had appellant been apprised of the witness' beliefs, the result of the proceeding might well have been different. See Ex parte Richardson, 70 S.W.3d 865, 871 (Tex. Crim. App. 2002).

First , the father and the step-mother had no motive to testify against the complainant in a prosecution of a non-relative charged with molestation. Likewise, that a father would have testified in favor of a man accused of molesting his daughter would have been powerful evidence to the jury. And, evidence that a father, who had no ties to the defendant, would claim that the District Attorney had the wrong man is equally compelling evidence. Second, because the complainant had lived with the father and step-mother for almost a year prior to the trial, they had personal knowledge of the complainant's propensity to lie, which surely would have been admitted upon cross-examination. See Keeter, 105 S.W.3d at 147 (noting that the witness' testimony would be admissible under rules of evidence 608 and 613). In sum, a parent and step-parent would not testify favorably for an accused person charged with molesting their daughter, if those persons, with personal knowledge of the complainant's behavior, did not believe that the accused was innocent.

Thus, because in my view, the State withheld material impeachment and exculpatory evidence, I would hold that the jury's verdict is not worthy of confidence. See Kyles v. Whitley, 514 U.S. at 434; Bagley, 473 U.S. at 682; Cook v. State, 940 S.W.2d 623, 627 (Tex. Crim. App. 1997). Because the trial court had clear notice that a Brady claim was being litigated, and the record evidence clearly supports the court of appeals' conclusion that material Brady evidence was withheld, I dissent.

DELIVERED: April 6, 2005.

PUBLISH

1.
Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.").

2. In further support of its holding that appellant did not preserve for review his
Brady claim, the majority points to the trial court's order denying the motion for new trial. See ante, slip op. at 9 ("Also, the trial court's order denying the motion does not mention a Brady claim."). Our rules of appellate procedure, however, instruct that a trial court "must not summarize, discuss, or comment on evidence" in its ruling on a motion for new trial. Tex. R. App. P. 21.8 (b). It is rather disingenuous of the Court to look to the trial court's order, which improperly discusses and comments on the evidence, to support its conclusion that "appellant did not raise a separate claim related to Brady."

3. Because the record clearly reflects that appellant's
Brady claim was preserved for review, I express no opinion upon the court of appeals' reasoning that Brady claims are unwaivable rights under Marin. v. State. 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993) (recognizing three categories of rights--(1) absolute requirements and prohibitions (unwaivable rights), (2) rights which must be implemented unless expressly waived, and (3) rights which are implemented upon request).

4. The complainant's father testified he told the District Attorney at least four months before trial that he did not believe his daughter and that the District Attorney was "accusing the wrong man." The step-mother testified that she told an assistant district attorney that she did not believe her step-daughter quite a while before trial. Specifically, she testified that she conveyed to the State her beliefs that complainant was lying "the first time we were to come down here and talk about the trial that we met with him so he could talk to [complainant]. I don't remember when it was, last year."

5. If the prosecutor disputed the witnesses' assertions that
Brady information had been relayed, he should have asked to be sworn and then testified to the contrary, or otherwise disputed the witness' assertions in open court as an officer of the court, i.e.--that the Brady information had not been conveyed to him prior to trial. The prosecutor could have readily controverted the facts alleged by the father and the step-mother. Because he did not, I would hold that the court of appeals did not err in reversing the trial court's implicit finding that Brady information was withheld. See Charles v. State, 146 S.W.3d 204, 210 (Tex. Crim. App. 2004) (citing to rule of civil procedure 166a (c) which provides that "summary judgment may be based on uncontroverted testimonial evidence of an interested witness . . .if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted); see also, Brady, 373 U.S. at 87 ("Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.").

6. Upon cross-examination of trial counsel, who had called herself as a witness to testify that the State never told her about the witness' doubts, the prosecutor asked, "If it didn't occur it wouldn't be disclosed; isn't that true?" This general question is not the equivalent of sworn testimony that the witnesses did not express their beliefs to the prosecutor before trial that the complainant was lying.
See Banks v. Dretke, 540 U.S. 668, 675 (2004) (finding significant to prosecutorial misconduct claim on habeas review that the prosecutor did not correct informant's untruthful testimony in open court when informant lied on the stand). The majority summarily concludes that the prosecutor did not know that appellant was making a Brady claim at the motion for new trial. See ante, slip op. at 9 ("Had the prosecutor been aware that the appellant was making a Brady claim, he could have testified to deny the allegation."). However, if the prosecutor did not know that a Brady claim was being made, there would be no reason for him to have asked defense counsel whether the Brady material had been conveyed at all.

7.
Charles v. State, 146 S.W.3d at 210.

A defendant’s failure to comply with a firmly established and regularly followed rule has been deemed an inadequate state ground only when the .......

2006-12-30T23:01:00.000-08:00

Search Cornell

LEE V. KEMNA (00-6933) 534 U.S. 362 (2002) 213 F.3d 1037, vacated and remanded.
Syllabus	Opinion [ Ginsburg ]	Dissent [ Kennedy ]
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Kennedy, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 00—6933

REMON LEE, PETITIONER v. MIKE KEMNA,
SUPERINTENDENT, CROSSROADS
CORRECTIONAL CENTER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT

[January 22, 2002]

Justice Kennedy, with whom Justice Scalia and Justice Thomas join, dissenting.

The Court’s decision commits us to a new and, in my view, unwise course. Its contextual approach places unnecessary and unwarranted new responsibilities on state trial judges, injects troubling instability into the criminal justice system, and reaches the wrong result even under its own premises. These considerations prompt my respectful dissent.

The rule that an adequate state procedural ground can bar federal review of a constitutional claim has always been “about federalism,” Coleman v. Thompson, 501 U.S. 722, 726 (1991), for it respects state rules of procedure while ensuring that they do not discriminate against federal rights. The doctrine originated in cases on direct review, where the existence of an independent and adequate state ground deprives this Court of jurisdiction. The rule applies with equal force, albeit for somewhat different reasons, when federal courts review the claims of state prisoners in habeas corpus proceedings, where ignoring procedural defaults would circumvent the jurisdictional limits of direct review and “undermine the State’s interest in enforcing its laws.” Id., at 731.

Given these considerations of comity and federalism, a procedural ground will be deemed inadequate only when the state rule “force[s] resort to an arid ritual of meaningless form.” Staub v. City of Baxley, 355 U.S. 313, 320 (1958). Staub’s formulation was imprecise, but the cases that followed clarified the two essential components of the adequate state ground inquiry: first, the defendant must have notice of the rule; and second, the State must have a legitimate interest in its enforcement.

The Court need not determine whether the requirement of Missouri Supreme Court Rule 24.09 that all continuance motions be made in writing would withstand scrutiny under the second part of this test (or, for that matter, whether Lee had cause not to comply with it, cf. infra, at 19). Even if it could be assumed, for the sake of argument, that Rule 24.09 would not afford defendants a fair opportunity to raise a federal claim, the same cannot be said of Rule 24.10. The latter Rule simply requires a party requesting a continuance on account of missing witnesses to explain why it is needed, and the Rule serves an undoubted and important state interest in facilitating the orderly management of trials. Other States have similar requirements. See, e.g., Ind. Code §35—36—7—1(b) (1993); La. Code Crim. Proc. Ann., Art. 709 (West 1981); Miss. Code Ann. §99—15—29 (1972); Okla. Stat., Tit. 12, §668 (1993); S. C. Rule Crim. Proc. 7(b) (1990); Tex. Code Crim. Proc. Ann., Art. 29.06 (Vernon 1965); Vt. Rule Crim. Proc. 50(c)(1) (1983); Wash. Rev. Code §10.46.080 (1990). The Court’s explicit deprecation of Rule 24.10–and implicit deprecation of its many counterparts–is inconsistent with the respect due to state courts and state proceedings.

The initial step of the adequacy inquiry considers whether the State has put litigants on notice of the rule. The Court will disregard state procedures not firmly established and regularly followed. In James v. Kentucky, 466 U.S. 341, 346 (1984), for example, the rule was “not always clear or closely hewn to”; in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958), “petitioner could not fairly be deemed to have been apprised of [the rule’s] existence.” As the majority acknowledges, ante, at 13, Rule 24.10 is not in this category, for unlike the practices at issue in James and Patterson, Rule 24.10 is codified and followed in regular practice.

Several of the considerations offered in support of today’s decision, however, would seem to suggest that the Court believes Rule 24.10 was not firmly established or regularly followed at the time of Lee’s trial. For example, the majority cites the lack of published decisions directing flawless compliance with the Rule in the unique circumstances this case presents. Ante, at 19. While this description of Missouri law is dubious, see, e.g., State v. Scott, 487 S. W. 2d 528, 530 (Mo. 1972), the Court’s underlying, quite novel argument ignores the nature of rulemaking. If the Court means what it says on this point, few procedural rules will give rise to an adequate state ground. Almost every case presents unique circumstances that cannot be foreseen and articulated by prior decisions, and general rules like Rule 24.10 are designed to eliminate second-guessing about the rule’s applicability in special cases. Rule 24.10’s plain language admits of no exception, and the Court cites no Missouri case establishing a judge-made exemption in any circumstances, much less circumstances close to these. Its applicability here was clear.

The Court also ventures into new territory by implying that the trial judge’s failure to cite the Rule was meaningful, ante, at 2, 16—17, 24, and by noting that he did not give a reason for denying the continuance that could have been addressed by a motion complying with the Rule, ante, at 18. If these considerations were significant, however, we would have relied upon them in previous cases where the trial court’s denial of the defendant’s motion on the merits was affirmed by the state appellate court because of an uncited procedural defect. See, e.g., James v. Kentucky, supra, at 343—344; Staub v. City of Baxley, supra, at 317—318. None of these decisions used this rationale to disregard a state procedural rule, and with good reason. To require trial judges, as a matter of federal law, to cite their precise grounds for decision would place onerous burdens on the state courts, and it is well settled that an appellate tribunal may affirm a trial court’s judgment on any ground supported by the record. See Smith v. Phillips, 455 U.S. 209, 215, n. 6 (1982). Here, moreover, the uncited procedural rule was designed both to “permi[t] the trial court to pass on the merits,” State v. Robinson, 864 S. W. 2d 347, 349 (Mo. Ct. App. 1993), and to facilitate the appellate court’s review of asserted due process errors. Notwithstanding the Court’s guess about the judge’s and prosecution’s inner thoughts concerning the completeness of Lee’s motion, see ante, at 17, the Missouri Court of Appeals tells us that Lee’s failure to comply with the Rule is considered consequential as a matter of state law. If Lee had complied with Rule 24.10, the trial court might have granted the continuance or given a different reason for denying it. The trial court, in effect, is deemed to have relied on Rule 24.10 when it found Lee had not made a sufficient showing.

Lee was on notice of the applicability of Rule 24.10, and the Court appears to recognize as much. The consideration most important to the Court’s analysis, see ante, at 19, relates not to this initial question, but rather to the second part of the adequacy inquiry, which asks whether the rule serves a legitimate state interest. Here, too, in my respectful view, the Court errs.

A defendant’s failure to comply with a firmly established and regularly followed rule has been deemed an inadequate state ground only when the State had no legitimate interest in the rule’s enforcement. Osborne v. Ohio, 495 U.S. 103, 124 (1990); James v. Kentucky, supra, at 349; Michigan v. Tyler, 436 U.S. 499, 512, n. 7 (1978). Most state procedures are supported by various legitimate interests, so established rules have been set aside only when they appeared to be calculated to discriminate against federal law, or, as one treatise puts it, they did not afford the defendant “a reasonable opportunity to assert federal rights.” 16B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, §4027, p. 392 (2d ed. 1996) (hereinafter Wright & Miller). See, e.g., Douglas v. Alabama, 380 U.S. 415, 422—423 (1965) (rule requiring continuous repetition of identical constitutional objections); Staub v. City of Baxley, 355 U.S., at 317—318 (rule requiring defendant to challenge constitutionality of individual sections of statute); Davis v. Wechsler, 263 U.S. 22, 24 (1923) (rule waiving jurisdictional objections upon entry of appearance of federal defendant’s successor-in-interest).

In light of this standard, the adequacy of Rule 24.10 has been demonstrated. Delays in criminal trials can be “a distinct reproach to the administration of justice,” Powell v. Alabama, 287 U.S. 45, 59 (1932), and States have a strong interest in ensuring that continuances are granted only when necessary. Rule 24.10 anticipates that at certain points during a trial, important witnesses may not be available. In these circumstances, a continuance may be appropriate if the movant makes certain required representations demonstrating good cause to believe the continuance would make a real difference to the case.

The Court acknowledges, as it must, that Rule 24.10 does not discriminate against federal law or deny defendants a reasonable opportunity to assert their rights. Instead, the Rule “serves a governmental interest of undoubted legitimacy” in “arm[ing] trial judges with the information needed to rule reliably on a motion to delay a scheduled criminal trial.” Ante, at 21. Nor is there any doubt Lee did not comply with the Rule, for the Missouri court’s word on that state-law question is final. See Elmendorf v. Taylor, 10 Wheat. 152, 159—160 (1825) (Marshall, C. J.). The Court’s acceptance of these two premises should lead it to conclude that Lee’s violation of the Rule was an adequate state ground for the Missouri court’s decision.

Yet the Court deems Lee’s default inadequate because, it says, to the extent feasible under the circumstances, he substantially complied with the Rule’s essential requirements. Ante, at 22. These precise terms have not been used in the Court’s adequacy jurisprudence before, and it is necessary to explore their implications. The argument is not that Missouri has no interest in enforcing compliance with the Rule in general, but rather that it had no interest in enforcing full compliance in this particular case. This is so, the Court holds, because the Rule’s essential purposes were substantially served by other procedural devices, such as opening statement, voir dire, and Lee’s testimony on the stand. These procedures, it is said, provided the court with the information the Rule requires the motion itself to contain. Ante, at 19—22. So viewed, the Court’s substantial-compliance terminology begins to look more familiar: It simply paraphrases the flawed analytical approach first proposed by the Court in Henry v. Mississippi, 379 U.S. 443 (1965), but not further ratified or in fact used to set aside a procedural rule until today.

Before Henry, the adequacy inquiry focused on the general legitimacy of the established procedural rule, overlooking its violation only when the rule itself served no legitimate interest. See, e.g., Douglas v. Alabama, supra, at 422—423; Davis v. Wechsler, supra, at 24. Henry was troubling, and much criticized, because it injected an as-applied factor into the equation. See, e.g., R. Fallon, D. Meltzer, & D. Shapiro, Hart and Weschsler’s The Federal Courts and the Federal System 584 (4th ed. 1996) (hereinafter Hart & Wechsler) (calling this element of Henry “radical”); 16B Wright & Miller §4028, at 394 (arguing that Henry’s approach–under which “state procedural rules may accomplish forfeiture only if necessary to further a legitimate state interest in the actual circumstances of application to the very case before the court”–“unduly subordinates state interests”); cf. ante, at 13 (“There are … exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate”). The petitioner in Henry had defaulted his Fourth Amendment claim in state court by failing to lodge a contemporaneous objection to the admission of the contested evidence. Despite conceding the legitimate state interest in enforcing this common rule, the Court vacated the state-court judgment, proposing that the default may have been inadequate because the rule’s “purpose … may have been substantially served by petitioner’s motion at the close of the State’s evidence asking for a directed verdict.” Henry v. Mississippi, supra, at 448. The suggestion, then, was that a violation of a rule serving a legitimate state interest may be ignored when, in the peculiar circumstances of a given case, the defendant utilized some other procedure serving the same interest.

For all Henry possessed in mischievous potential, however, it lacked significant precedential effect. Henry itself did not hold the asserted state ground inadequate; instead it remanded for the state court to determine whether “petitioner’s counsel deliberately bypassed the opportunity to make timely objection in the state court.” 379 U.S., at 449—453. The cornerstone of that analysis, the deliberate-bypass standard of Fay v. Noia, 372 U.S. 391, 426—434 (1963), later was limited to its facts in Wainwright v. Sykes, 433 U.S. 72, 87—88 (1977), and then put to rest in Coleman v. Thompson, 501 U.S., at 750. Subsequent cases maintained the pre-Henry focus on the general validity of the challenged state practice, either declining to cite Henry or framing its holding in innocuous terms. See, e.g., James v. Kentucky, 466 U.S., at 349; Monger v. Florida, 405 U.S. 958 (1972); see also Hart & Wechsler 585—586 (describing the “[d]emise of Henry”); 16B Wright & Miller §4020, at 291 (“Later decisions, over a period now measured in decades, are more remarkable for frequently omitting any reference to the Henry decision than for clarifying it”).

There is no meaningful distinction between the Henry Court’s analysis and the standard the Court applies today, and this surprising reinvigoration of the case-by-case approach is contrary to the principles of federalism underlying our habeas corpus jurisprudence. Procedural rules, like the substantive laws they implement, are the products of sovereignty and democratic processes. The States have weighty interests in enforcing rules that protect the integrity and uniformity of trials, even when “the reason for the rule does not clearly apply.” Staub v. City of Baxley, 355 U.S., at 333 (Frankfurter, J., dissenting). Regardless of the particular facts in extraordinary cases, then, Missouri has a freestanding interest in Rule 24.10 as a rule.

By ignoring that interest, the majority’s approach invites much mischief at criminal trials, and the burden imposed upon States and their courts will be heavy. All requirements of a rule are, in the rulemaker’s view, essential to fulfill its purposes; imperfect compliance is thus, by definition, not compliance at all. Yet the State’s sound judgment on these matters can now be overridden by a federal court, which may determine for itself, given its own understanding of the rule’s purposes, whether a requirement was essential or compliance was substantial in the unique circumstances of any given case. Henceforth, each time a litigant does not comply with an established state procedure, the judge must inquire, even “in the midst of trial, … whether noncompliance should be excused because some alternative procedure might be deemed adequate in the particular situation.” Hart & Wechsler 585. The trial courts, then the state appellate courts, and, in the end, the federal habeas courts in numerous instances must 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.

The Court seeks to ground its renewal of Henry’s long-quiescent dictum in our more recent decision in Osborne v. Ohio, 495 U.S., at 122—125. Though isolated statements in Osborne might appear to support the majority’s approach–or, for that matter, Henry’s approach–Osborne’s holding does not.

This case bears little resemblance, if any, to Osborne. The Ohio statute in question there made it criminal to possess a photograph of a minor in “a state of nudity.” Ohio Rev. Code Ann. §2907.323(A)(3) (Supp. 1989). In a pretrial motion to dismiss, Osborne objected to the statute as overbroad under the First Amendment. The state trial court denied the motion, allowed the case to proceed, and adopted no limiting construction of the statute when it instructed the jury on the elements of the crime.

In his appeal to the Ohio Supreme Court, Osborne argued that the statute violated the First Amendment for two reasons: first, it prohibited the possession of nonlewd material; and second, it lacked a scienter requirement. In rejecting the first contention, the appellate court did what the trial court had not: It adopted a limiting construction so that “nudity constitute[d] a lewd exhibition or involve[d] a graphic focus on the genitals.” State v. Young, 37 Ohio St. 3d 249, 252, 525 N. E. 2d 1363, 1368 (1988). In addressing Osborne’s second point, the Ohio Supreme Court noted that another Ohio statute provided a mens rea of recklessness whenever, as was the case there, the criminal statute at issue was silent on the question. Id., at 252—253, 525 N. E. 2d, at 1368 (citing Ohio Rev. Code Ann. §2901.21(B) (1987)). Osborne also argued that his due process rights were violated because the trial court had not instructed the jury on the elements of lewdness and recklessness that the Ohio Supreme Court had just read into the statute. The appellate court rejected this claim on procedural grounds, observing that Osborne “neither requested such charge[s] nor objected to the instructions as given.” 37 Ohio St. 3d, at 254, 258, 525 N. E. 2d, at 1369, 1373 (citing Ohio Rule Crim. Proc. 30(A) (1989)).

When Osborne’s case reached this Court, the parties’ due process discussion focused on the merits, not the procedural bar. “It is a violation of due process,” Osborne’s brief argued, “where … a state supreme court adds new elements to save a statute and then affirms the conviction.” Brief for Appellant, O. T. 1989, No. 88—5986, p. 25. Ohio’s response, contending that the appellate court’s limiting construction was “foreseeable,” mentioned the procedural rule in a short, conclusory paragraph. Brief for Appellee, O. T. 1989, No. 88—5986, pp. 43—44. Against this backdrop, we decided the asserted procedural ground was adequate to block our assessment of the scienter claim but not the lewdness claim. Osborne v. Ohio, supra, at 125—126. This was not the watershed holding today’s majority makes it out to be. The procedure invoked by the State with respect to lewdness required defendants in all overbreadth cases to take one of two steps, neither of which comported with established adequacy principles.

First, Ohio’s primary contention was, as we noted, “that counsel should … have insisted that the court instruct the jury on lewdness” by proposing an instruction mirroring the unforeseeable limiting construction the Ohio Supreme Court would later devise. 495 U.S., at 124. To the extent the State required defendants to exhibit this sort of prescience, it placed a clear and unreasonable burden upon their due process rights. Shuttlesworth v. Birmingham, 394 U.S. 147, 155—157 (1969); see also Osborne v. Ohio, supra, at 118 (“[W]here a State Supreme Court narrows an unconstitutionally overbroad statute, the State must ensure that the defendants are convicted under the statute as it is subsequently construed and not as it was originally written”). Osborne might, for example, have guessed “obscenity” rather than mere “lewdness,” or “focus on the genitals” without the additional “lewdness” option; yet according to the State, neither proposed instruction would have preserved his federal claim. That our decision was based on this foreseeability concern is evident from our discussion of the state court’s treatment of the scienter question. This holding was supported by an adequate state ground, we found, because the state statute cited by the Ohio Supreme Court “state[d] that proof of scienter is required in instances, like the present one, where a criminal statute does not specify the applicable mental state.” 495 U.S., at 123. In other words, while the recklessness element was foreseeable (and in fact established by statute), the lewdness element was not.

Second, to the extent Ohio faulted the defendant for not raising a more general objection to the jury instructions, Osborne followed from Douglas v. Alabama, 380 U.S., at 420—423. In Douglas, the defendant was required to repeat, again and again, the same Confrontation Clause objection while his co-defendant’s confession was read to the jury. The trial court’s initial adverse ruling foreclosed the possibility that the subsequent objections would be sustained. Ohio’s treatment of overbreadth objections raised similar concerns. By ruling on and rejecting the pretrial objection–at the time when overbreadth challenges are generally made–the trial court would make its position on lewdness clear. The case would continue on the assumption that the statute was not overbroad and that possession of nonlewd materials could be a criminal offense. Any evidence the defendant introduced to establish that the photographs were not lewd would be irrelevant, and likely objectionable on this ground. As both a logical and a practical matter, then, the ruling at the trial’s outset would foreclose a lewdness instruction at the trial’s close. Ohio’s requirement that the defendant nonetheless make some sort of objection to the jury instructions, as we concluded, served “no perceivable state interest.” 495 U.S., at 124 (internal quotation marks omitted). On this point, too, the Osborne Court’s different conclusion with respect to scienter is enlightening. Osborne did not argue in an appropriate pretrial motion that the other Ohio statute supplied the recklessness element, so no ruling precluded him from admitting evidence on mens rea or requesting a recklessness instruction.

Osborne thus stands for the proposition that once a trial court rejects an overbreadth challenge, the defendant cannot be expected to predict an unforeseeable limiting construction later adopted by the state appellate court or to lodge a foreclosed objection to the jury instructions. That holding, of course, has no relevance to the case at hand. Rule 24.10 does not require defendants to foresee the unforeseeable, and no previous ruling precluded the trial court from granting Lee’s continuance motion. And though the Osborne Court’s analysis was tailored to First Amendment overbreadth concerns, it did not adopt the majority’s fact-specific approach. Osborne’s rationale would apply to all overbreadth cases without regard to whether their facts were unique or their circumstances were extraordinary. The majority’s suggestion to the contrary exaggerates the importance of certain language employed by the Osborne Court. We did take note of the “sequence of events,” 495 U.S., at 124, but only because in all overbreadth cases, Ohio procedure mandated a sequence whereby defendants were required to predict unforeseeable limiting constructions before they were adopted or to lodge objections foreclosed by previous rulings. We also mentioned the trial’s brevity, id., at 123—124, but that fleeting reference was not only unnecessary but also in tension with the Osborne Court’s analysis. The adequacy doctrine would have dictated the same result, brief trial or no.

The Osborne decision did not lay the groundwork for today’s revival of Henry v. Mississippi. Yet even if it made sense to consider the adequacy of state rules on a case-by-case basis, the Court would be wrong to conclude that enforcement of Rule 24.10 would serve no purpose in this case. Erroneous disregard of state procedural rules will be common under the regime endorsed by the Court today, for its basic assumption–that the purposes of a particular state procedure can be served by use of a rather different one–ignores the realities of trial. The Court here sweeps aside as unnecessary a rule that would have produced the very predicate the trial court needed to grant the motion: an assurance that the defense witnesses were still prepared to offer material testimony.

The majority contends that Lee compensated for any inadequacies in his motion, even if through inadvertence, by various remarks and observations made during earlier parts of the trial. To reach this conclusion, the Court must construe counsel’s statements with a pronounced liberality. Even if we could assume, however, that Lee and his lawyer provided all the required information at some point, we could not conclude that “th[e] purpose of the … rule” was “substantially served,” Henry v. Mississippi, 379 U.S., at 448, or, in the terms used by today’s majority, that “the Rule’s essential requirements … were substantially met,” ante, at 22. The most critical information the Rule requires–“[W]hat particular facts the affiant believes the witness will prove”–was revealed not at the time of the motion, but at earlier stages: voir dire, opening statements, and perhaps, the majority speculates, the charge conference. Ante, at 21. To say the essential requirements of Rule 24.10 were met, then, is to assume the requirement that representations be made at the time of the motion is not central to the Rule or its objectives.

This assumption ignores the State’s interest in placing all relevant information before the trial court when the motion is made, rather than asking the judge to rely upon his or her memory of earlier statements. Cf. Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (test for determining whether denial of continuance violated due process considers “particularly … the reasons presented to the trial judge at the time the request is denied”). The assumption looks past the State’s corresponding interest in facilitating appellate review by placing all information relevant to the continuance motion in a single place in the record. The assumption also ignores the plain fact that the posture of this case was far different when Lee made his continuance motion than it was at the outset of the trial. Even if the judge recalled the precise details of voir dire and opening statements (as the majority believes, see ante, at 21), the State’s interest in requiring Lee to make the representations after the prosecution rested was no less pronounced.

As the very existence of rules like Rule 24.10 indicates, seasoned trial judges are likely to look upon continuance motions based on the absence of witnesses with a considerable degree of skepticism. This case was no different, for the trial judge suspected that the witnesses had abandoned Lee. The majority is simply wrong to suggest that no one in the courtroom harbored a doubt about what Lee’s family members would have said if they had returned. See ante, at 21. On the contrary, in light of the witnesses’ sudden disappearance, it is more likely that no one in the courtroom would have had any idea what to expect.

The Court fails to recognize that the trial judge was quite capable of distinguishing between counsel’s brave promises to the jury at various stages of the trial and what counsel could in fact deliver when the continuance was sought. There is nothing unusual about lawyers using hyperbole in statements to the jury but then using careful and documented arguments when making representations to the court in support of requests for specific rulings. Trial judges must distinguish between the two on a daily basis. In closing argument, for example, defense counsel told the jury:

“I’m an old man, been in this business 43 years, seen a little of criminal cases. Never seen one as weak as this.” Tr. 618.

Quite aside from the prosecutor’s predictable response–“he said that in the last case I tried with him too,” id., at 620–the rhetoric was an ill fit with the routine, mechanical way defense counsel presented his motion for acquittal, with the jury absent, at the close of the prosecution’s case. He gave not one specific reason to grant the motion, his complete argument consisting of the following:

“MR. McMULLIN: I’ll file it. I left it in the office. There’s nothing exceptional in it. The defendant–that we move for judgment of acquittal for the reason that the State’s evidence is insufficient as a matter of law to sustain a conviction and that should be easily disposed of.” Id., at 489.

These are the customary dynamics of trial, perhaps; but the whole course of these proceedings served to confirm what the trial judge told counsel at the outset of the case: “I don’t have a lot of faith in what’s said in opening statement.” Id., at 173. Opening statements can be imprecise, and are sometimes designed to force the opposition’s hand or shape the jurors’ perception of events. When the time came for presentation of the defense case, counsel faced significant obstacles in establishing the alibi he had promised before. Indeed, it is a fair inference to say the alibi defense had collapsed altogether. Two witnesses with no connection to the defendants or the crime identified Lee as the driver of the automobile used by the passenger-gunman. Any thought that difficulties with these eyewitnesses’ identification might give Lee room to present his alibi defense was dispelled by two additional witnesses for the prosecution. Both had known Lee for a considerable period of time, so the chances of mistaken identity were minimal. Both saw him in Kansas City–not in California–on the night before the murder. He was not only in town, they testified, but also with the shooter and looking for the victim.

Faced with this and other evidence adduced by the prosecution, defense counsel elected to open not with the alibi witnesses whose testimony was supposed to be so critical, but rather with two witnesses who attempted to refute a collateral aspect of the testimony given by one of the prosecution’s eyewitnesses. Only then did the defense call the alibi witnesses, who were to testify that Lee went to California to attend a birthday party in July 1992 and did not return to Kansas City until October. At this point the case was far different from what defense counsel might have hoped for at the opening.

When Lee’s witnesses were then reported missing, the judge had ample reason to believe they had second thoughts about testifying. All three of Lee’s family members had traveled from California to testify, but all three left without speaking to Lee or his lawyer. Two sets of witnesses, four persons in all, had just placed Lee in Kansas City; and the prosecution had said it had in reserve other witnesses prepared to rebut the alibi testimony. Lee had been sentenced to 80 years in Missouri prison for an unrelated armed assault and robbery, and any witness who was considering perjury would have had little inducement to take that risk–a risk that would have became more pronounced after the prosecution’s witnesses had testified–if Lee would serve a long prison term in any event. The judge’s skepticism seems even more justified when it is noted that six weeks later, during a hearing on Lee’s motion for a new trial, counsel still did not explain where Lee’s family members had gone or why they had left. It was not until 17 months later, in an amended motion for postconviction relief, that Lee first gave the Missouri courts an explanation for his family’s disappearance.

Before any careful trial judge granted a continuance in these circumstances, he or she would want a representation that the movant believed the missing witnesses were still prepared to offer the alibi testimony. Cf. Avery v. Alabama, 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.

In sum, Rule 24.10 served legitimate state interests, both as a general matter and as applied to the facts of this case. Lee’s failure to comply was an adequate state ground, and the Court’s contrary determination does not bode well for the adequacy doctrine or federalism.

A federal court could consider the merits of Lee’s defaulted federal claim if he had shown cause for the default and prejudice therefrom, see Wainwright v. Sykes, 433 U.S., at 90—91, or made out a compelling case of actual innocence, see Schlup v. Delo, 513 U.S. 298, 314—315 (1995). He has done neither.

As to the first question, Lee says the sudden disappearance of his witnesses caused him to neglect Rule 24.10. In one sense, of course, he is right, for he would not have requested the continuance, much less failed to comply with Rule 24.10, if his witnesses had not left the courthouse. The argument, though, is unavailing. The cause component of the cause-and-prejudice analysis requires more than a but-for causal relationship between the cause and the default. Lee must also show, given the state of the trial when the motion was made, that an external factor “impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). While the departure of his key witnesses may have taken him by surprise (and caused him not to comply with Rule 24.09’s writing requirement), nothing about their quick exit stopped him from making a complete oral motion and explaining their absence, the substance of their anticipated testimony, and its materiality.

Nor has Lee shown that an evidentiary hearing is needed to determine whether “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id., at 496. To fall within this “narrow class of cases,” McCleskey v. Zant, 499 U.S. 467, 494 (1991), Lee must demonstrate “that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup v. Delo, supra, at 327, 314—315. Lee would offer the testimony of his mother, stepfather, and sister; but to this day, almost eight years after the trial, Lee has not produced a shred of tangible evidence corroborating their story that he had flown to California to attend a 4-month long birthday party at the time of the murder. To acquit, the jury would have to overlook this problem, ignore the relatives’ motive to concoct an alibi for their kin, and discount the prosecution’s four eyewitnesses. Even with the relatives’ testimony, a reasonable juror could vote to convict.

* * *

“Flying banners of federalism, the Court’s opinion actually raises storm signals of a most disquieting nature.” So wrote Justice Harlan, dissenting in Henry v. Mississippi, 379 U.S., at 457. The disruption he predicted failed to spread, not because Henry’s approach was sound but because in later cases the Court, heeding his admonition, refrained from following the course Henry prescribed. Though the Court disclaims reliance upon Henry, it has in fact revived that case’s discredited rationale. Serious doubt is now cast upon many state procedural rules and the convictions sustained under them.

Sound principles of federalism counsel against this result. I would affirm the judgment of the Court of
Appeals.