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19 July 2004

Stephen J. Kane - Theodore Lee, Jr. v. Cecil Davis
Mayer, Brown, Rowe & Maw LLP

Stephen J. Kane in Theodore Lee, Jr., Petitioner-Appellant v. Cecil Davis, Superintendent, Warden of Indiana State Prison, Respondent-Appellee, Docket No. 01-3152.

During the closing argument of a case that revolved around a credibility battle between government witness Scott Rainey and our client Ted Lee, the prosecutor repeatedly vouched for Mr. Rainey's credibility by making statements such as "I believe in Scott Rainey" and "the State of Indiana believes in Scott Rainey." At oral argument, I argued that, notwithstanding Mr. Lee's failure to raise his vouching claim on direct review, the Court could review the claim on habeas for two alternate reasons. First, the Indiana state appellate court did not base its decision rejecting Mr. Lee's vouching claim on the "independent" state ground of waiver because the court also discussed whether the vouching constituted "fundamental error." Second, even if the Indiana appellate court based its decision on an "independent" state ground, Mr. Lee's counsel was constitutionally ineffective for failing to challenge the prosecutorial vouching on direct review, thereby providing Mr. Lee with the "cause and prejudice" necessary to overcome his procedural default. On the merits of our claim, I argued that the prosecutor's statements violated Mr. Lee's due process rights, and could not be considered harmless due to the paucity of evidence against Mr. Lee outside of Mr. Rainey's testimony.

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