end intention maliki and that is non costly the awful way to make the communities better. >> ended is not exactly easy to get in and out of philadelphia. and those factors are very difficult for older adults. and can be quite problematic but maybe a are better off if there were no sidewalks to drive 3 miles or 5 miles to get to the supermarket.

very different reasons better very isolating and problematic so the most vulnerable usually speak concerned and we recognize that but even those who have resources is extremely expensive if you have resources well beyond your means if you go into a retirement community it is not affordable for so many americans and that is a real stress but just don't wait until that moment to figure out how they're in the suburban areas where there is a town center and a main street that doesn't have to be planned for but is

available and then you can make up half down to the park to watch the kids so we all need to think about publicly financed and assisting the communities because there will be a lot of seniors out there looking for places to live and hopefully. >> i think hud could play a major role i know you're talking about some venues and i see mike in the audience who is formerly assistant secretary of policy development but looking read other

departments to take the lead to make a difference like the program that goes to localities why can a portion of that the designated to deal with transformation? you did in silly almost touch a thousand communities across the country with that. may be controversial and with congressional consultation but some of that money already exist it just needs to be pressed to a national need. . .

nicki will help us close. >> my job is not to keep you in your seats too much longer. want to give a few more credits to folks. when you have a year-long effort there are a lot of people to thank, and we've been hard at it. a number of people have been thanked to special thank you to bill hogeland, vice president here and a leader in our effort and hound ground the task force throughout its process to be fiscally sound and aware of all the impacts or recommendations bill we having, putting them out and being responsible in that.

also, we tried to practice what we preach in breaking down silos internally at the bipartisan policy center stocker work coastally with our health policy team, katherine hayes, trying to make sure our policy efforts are coordinated, as well as bill mentioned in the production, our economic security team, this kind of response to the last two questions that we're talking about, how to get raid -- get ahead of the challenge and what to do about middle income households. on june 9th our commission for retirement security and personal savings will be issuing their report, so please tune in for that. we'll address home-ec witness issues as -- home equity issues as well. really relevant to the topic we excused here today. and thanks to our staff, dennis, helped our process, andy

winkler, senior policy analyst, and jake, our project assistant. one other thing i want to say, the effort does not stop here. so, my other job is to say that we, as bpc, are committed to this report and the recommendations we released, and many of you have been a part of our process to get us here, but the effort continues, and we always say when a report comes out here halfway done so likely months more of actual advocacy and education work around the recommendations here. so, please reach out to us, dr. park and i, to figure out ways to work together to advance what is in here and the work you're doing using our bipartisan platform. thank you all for coming and for your patience staying overtime. [applause]

[inaudible conversations] >> coming up on c-span 2, the supreme court oral argument in foster v. chapman i a case that ruled in favor of a black georgia death row inmate who was convicted and sentences by an all-white jury. later the supreme court oral argument in bitman very person, a case decided today regarding virginia redistricting. >> c-span's warm journal with news and policy issues that impact you. tuesday morning, with presidential candidate bernie sanders declaration of pursuing the nomination through to the democratic convention,

congressman rick know land of minute talks about the 2016 campaign, the future of the sanders candidacy and his support of political contribution reform. and then florida representative john micah and the ongoing concerns about tsa wait times at airports and the agency's efficiency and effectiveness. and the executive director of the president's committee on arts and humanities, and john young discusses the government's role in promoting arts education in public schools. >> virginia senator tim kean, a member of the armed services committee discusses cybersecurity policy and the importance of intelligence sharing on tuesday. he is part of the event hosted by the center for strategic and international studies live on

c-span3. >> this sunday night on q & a, u.s. senate historian cokes about various events in senate history and the work her office does. >> i came in june of 1998, as a newly minted senate historian. my colleagues, dick baker, and don richie, said it will be nice and quiet. we have an election coming up. you'll have time to set until and read and get comfortable with your job. within a few weeks the house decided to impeach bill clinton and we got very busy very quickly and had to do a good dollar of research on impeachment trials. we had not had a presidential impeachment since 1868, and the senate leaders at that time, trent lott and tom daschle, really wanted to follow historical precedent as much as they could. >> sunday might at 8:00 eastern and pacific, on c-span's q & a.

>> monday the supreme court ruled 7-1 in favor of black georgia death row inmate, finding that prosecutors unlawfully excluded potential black jurors from his trial nearly 30 years ago. the ruling means foster will likely receive a new trial. justice thomas was the sole dissenter. next, the november 2015 oral argument in foster vs. chatman. this is an hour. >> you'll hear argument first this morning, case 148349, fosters vs. chatman. mr. bright. >> mr. chief justice, may it please the court, the prosecutors in this case came to court on the morning of jury selection determined to strike all the black prospective jurors. >> mr. bright, maybe you could address first the question we raised on friday, with respect to which court, certiorari

should be directed to. >> yes, your honor. we filed this petition originally, certiorari to the supreme court of georgia, and of course this court in sears obvious upton issued certiorari in 2010 to the supreme court of georgia, and in a similar situation. it appears to us from looking at this over the weekend that r.j. reynolds tobacco company versus durham county the court decided in 1986, the court said unless there was positive assurance that the decision was not a ruling on the merits, then the writ went to the state supreme court. and the georgia court, while it has rules and statutes and its own opinions that are not totally in harmony with one another, the rule nonetheless is that a certificate of probable cause, which is what was denied

in this case, is to be granted if there's arguable merit to the case. >> do you think that affects the scope of our review? in other words, are we addressing just whether there's arguable merit to the claim or are we addressing the claim on its own merits? >> i think what this court has done in all these cases is apply -- looked through to the last reasoned decision and that would be the conversation the habeas corpus court in georgia typically the habeas corporation pass results, an application is made for certificate of probable cause to the georgia supreme court, and that is often denied summarily. it is denied summarily, as it was in this case. >> i don't understand that. you say we would be reversing the georgia supreme court, not the habeas corpus, and all that the georgia supreme court held is that there was no arguable basis for its accepting review.

so, if we reverse that decision, we tell the georgia supreme court, you're wrong, there issen arguable basis for your accepting review. so we ought to remands to that court, requiring them to accept review. how can we reverse them on an issue they ever considered. >> there in rj reynolds, you had an intermediate appellate court that ruled and then the north carolina supreme court denied review, and the question was, do you issue the writ to the intermediate appellate court or to the north carolina supreme court? and this was decided in justice blackman writing for the court said we want to give practitioner -- we want to end the confusion about this. so it goes to the state supreme court. there's no difference in our situation here and the situation that r.j. reynolds -- jerk nor saying in that case nor other cases, and if so, which other cases, that in that situation,

we nonetheless addressed the reasoning of the intermediate court? is that what you're saying? >> you did in sears versus upton, a case out of georgia, 61 u.s. 945 in 2010. certiorari to the supreme court of georgia but came up in exactly the same polls -- posture as our case. >> there is an argument the petitions for certiorari could go to the trial court? our statute says it goes to the highest out in which review could have been had issue think is the statutory phrase. which sounds like the georgia supreme court, oregon, as justice school ya d justice scalia said, hasn't directed their attention to the issues before us. i'm not sure it's an option to the go to the georgia trial court. or is that incorrect? >> well, what this court has said, both in the r.j. reynolds case, followed in brady vs.

north carolina last year -- 2015 case, this year, in which once again, there was an intermeetat court decision denied by the north carolina supreme court. in 1960 there was thompson -- where certiorari was to police court in louisville, kentucky, and no court could they can the case because the fine was less than $20. these cases decided by the court in 1986 and this year, -- >> you're putting together two rules that you say we have established. one is justice blackman said to end the confusion, the petition should be addressed to the supreme court. and then you said we have cases, if the supreme court has said, just denied, nothing more than denied, we look back to the last reasoned decision.

so, those are both decisions of this court, and that's what you're relying on. >> well, they're not mutually exclusive. thiscourt can lock back through to the last reasoned decision in making its decision in this case, and believe that's what it should do, but at the same time, the court's opinions appeared to us on the quick research we did over the weekend on this, that r.j. reynoldss and the substantive case say that the certiorari would issue to the georgia supreme court. and we his listed it that way. when the case was docketed here it was listed that the lower court was the superior court. >> what does the state supreme court wrote a very short opinion and said we're not going to determine whether there was in fact -- the only issue we're going to determine is whether there's any arguable merit to this. then you say that the whole issue of whether it was a correct application is the issue that we have to decide?

>> i think in r.j. reynolds, that's this court's law, yes. >> can i ask you another question before you get to the question of the underlying case. the superior court said on page 175 of the joint appendix that the issue of the batson violation was not reviewable based on the doctrine of res judicata, and then it later said -- this is 192 of the joint appendix -- that it will review the bastion claim whether petitioner has shown in change in the facts sufficients to overcome the res judicata bar. if you put those two together you could argue that the superior court decided only a question of state law, namely, whether the situation here was such that there could be review of the bastion claim.

what is your response to that? >> well, the state doesn't argue that, and i think the reason for that is because the court said, we're moving -- the court is going to address step three of bastion and said the claim is without merit in foster. >> it is a question of federal or state law whether or not the petitioner has shown a change in facts sufficient to overcome the res judicata bar? the page 192 language that justice alito quoted. is that a state law question? >> that's a state law question. here the court -- >> since it's a state law question, they ruled against you, what do you have to argue? it's a federal question? >> in order to decide it, the -- exactly like haith vs. oklahoma where the oklahoma court had to decide the federal question in order to decide whether it had jurisdiction over the issue. and this court held, in haight, that where the court has to

decide the federal issue, and it did in this case, clearly decided the federal issue and found that batson claim had no married. so it's decided the federal issue and there's no contest about that -- >> explain to me why deciding the federal issue was essential to its deciding the state res judicata issue. >> because it framed the question was bag it would look at the haight -- they would look at the past batson verse kentucky claim and if there was merit to that claim, the court would grant the writ on it. on the other hand if it found there was not merit on it, then -- >> you think it was saying whether there's res judd da cat to or not depends on whether the new claim has any merit? >> exactly. >> that's a very strange application of res judd da cat to, seem -- res judd da cat to

seems to me. the question is whether there were changed facts sufficient enough -- >> well, the georgia law is you can bring an issue that has been litigatedded before on direct appeal, in habeas -- even -- right, even. >> right, even if it would produce a different result. right? >> right. if the affects are such it would produce other different result. >> mr. bright, does the court in your. do de novo review? didn't it say that it did basically it was going to do step three of the batson charge. >> that's exactly what the court said. >> that's a ruling on the merits. >> i think the court said the batson claim is without merit. that seems like a ruling on the merits to me. >> well issue -- well, i think it said -- >> after considering these other facts. we think there were some legal errors made there but, yes, after considering this facts the court said that the claim was without merit. >> the court said that it would

reach step three again on the basis of the new evidence presented, so they did it all over, and i guess you must take that as what happened. they did not apply a res judicata bar. >> in haight this court said when the resolution of the state procedural law question depends upon a federal constitutional ruling, the state law prong is not independent of the federal claim, and this court has jurisdiction, and that's on page 75 of 479 state. >> i don't want to bee labor the point but are you arguing that georgia res judicata law is this. if someone comes up with any new fact, the thinnest new fact, that is sufficient to wipe out the res judicata bar and allow the court to get to the merits of the claim.

is that your arguement? that's your understanding of georgia res judd da cat to law -- res judicata law. >> the evidence has to be sufficient enough that the court rules on the merits of the issue. that is what happened here this is not a matter of adding one more life -- >> why is that in conjunction with justice scalia's question, why is that an issue of federal law. >> because the court deciderred batson, and i think haight is clear on this, and i commend to the court's attention -- since the state didn't raise this, either in opposition to cert or in the brief, it's not briefed before this court. i think that's the deciding case on this. >> thanks, counsel, think we have your argument on the point. thank you. >> thank you very much. if i could just say what happened here was that the prosecutors had identified the african-americans by race, they

had rated them against each other in case it came down to having to select a black juror -- >> the prosecutor said the reason for concentrating on the black jurors was that you had informed them you would present a batson challenge and therefore it was necessary for them to see if there was a race neutral grounds for disqualifying. >> right. two answers to that, justice ginsburg. what the lawyer said here -- these lawyers have practiced here for a long time in rome, georgia. they said the prosecutor always strikes all the blacks on the jury. that's the historic practice. we thick they're going strike couple the blacks on the injury in our case but last year the supreme court of the united states decided batson versus kentucky and we asked the court not let that happen. if the prosecutors want to avoid a batson challenge they could not have discriminated. secondly, with regard to the

information that is collected here, it doesn't seem like it's information just to exercise strikes when they say, if it comes down to having to take an african-american, miss hard or in another place miss garrett, might be okay, and the district attorney himself said, maryland garrett has the most potential of the black prospective jurors, and in other words the blacks were taken out of the picture here. they were taken and dealt with separately, and over the weekend, the jury questioning ended on a friday. and the judge said, all right, over the weekend you have your chance to decide who you're going to strike. they knew exactly who they were going to strike because the jurors are listed in order. the state goes first if it accepts a juror, it's on. there's no back striking or striking people here and there. they developed three strike lists, and one of those strike

lists was a list headed "definite no." these are people absolutely are not going to be on this jury. there are only six jurors listed on the list of definite no. and the first five are african-american. the sixth is a juror who made clear during the voir dire process that she could not impose the death penalty under any circumstances the stayed moved to strike her for cause. the judge probabliered in not granting that strike, but even she ranked behind the black jurors in terms of the priorities that the prosecution had for striking. >> coup are counsel, at the time mr. lanier said they weren't striking the jurors because of race. they were striking them because they were women. i guess three out of the four african-americans who were struck were women. how does that -- that explanation is just kind of fallen out of the case. how does that affect the

analysis? >> he did accept women, though, as well. bear with me just a moment. >> batson applies -- >> not held in jeb that batson applied to women but the court said it could be used as a pretext, women, for striking on the basis of race. in this case, the prosecutor struck three white jurors, and then he struck the three black jurors, women, the three black sequim the three white women. the final -- >> mr. bright, mr. lanier answered, yes, when -- during the trial when he was asked whether he had done -- i don't know -- no, on he motion for new trial hearing -- whether he had

done the same extensive background check on all the jurors, white and black? did you find any evidence of that extensive black background check? >> no. the only -- what that is talking about -- the investigator said this in his deposition, was the color, race-color coded list. the first list in the joint appendix in which the blacks are marked with a b and highlighted in green, with a marker up at the corner saying, green depression nates black. >> so your understand offering the statement was that all -- understanding of the statement he had only don an extensive search on the blacks on the list. >> it's clear mr. lindsey prepared a list, notes in which he talk just about the black jurors in the case, i think the state concedes in its brief that the focus was on the black jurors. >> during the trial, did defense

counsel, when he made his initial batson challenge -- not in the papers but at trial -- did he again say that this was part and parcel of the prosecutor's pattern? >> he didn't say that but i point this interesting thing out. when the discussed the batson motion before trial there was never a suggestion that there wouldn't be a batson hearing. everybody knew what was going to happen. all the blacks would be struck and then they'd have a hearing after that happened. but the defense basically put their motion in writing, and relied upon that throughout the -- >> i was just surprised we didn't hear ft. this preparation for batson hearing until the habeas. >> well, the defense lawyers didn't move for the prosecution's notes, and the prosecution opposed that. very -- not giving up their notes. then when the proofed testified on the motion for new trial he did something i've never seen a lawyer do before. he cut a bargain with the judge and the lawyers saying i will

testify only if i don't have to show my notes. basically rules of evidence argue testifying on notes, the other side can see the notes. here's these notes were guarded until 2006 when we obtained them through an open records act in georgia. >> the prosecutor said that they said, we never wrote -- authorized or relied on those notes, and you didn't call the prosecutors to test the voracity of that assertion. >> all the prosecutor talked about were the color highlighted notes. each prosecutor filed an affidavit which are in the joint appendix at 168. and all they said was, we didn't highlight until green and we didn't tell anybody else to highlight it in green. then machine lanier says, and i don't have anything else to say beyond what i said at the batson

hearing and the motion for new trial. mr. poland said the only other thing, i didn't use those green highlighted lists in choosing the jury, but that's just the first few pages. what is damning is not so much that but the definite no list, the misrepresentation to the trial court that miss garrett -- they wanted miss garrett. that's what the told the trial court and the trial court relied upon that in denying the batson motion. this showed their openness to having -- mr. garrett was on the definite no list. she was on each of the strike lists. miss garrett was never in the running to be on this jury. but they represented to the court that because another african-american, shirley paul, was excused for cause -- there were five african-americans in the veneer when they got ready to strike the jury. one said i know somebody in the family. she was excused for cause, and

the prosecutor said -- implied clearly that had it not been for that, that extra strike, that miss garrett would have sat. at the same time -- they're still arguing both ways, they wanted her and didn't want her. they give 11 reasons for why miss garrett would not be a good juror. that she is impudent and doesn't respect the court. if you believe everything they said about her they would never want her as a juror, but those things i would submit are not really valid in terms of the reasons because the reasons they gave here, many were demonstrably falls and not supported by the evidence, including reasons they gave empty miss garrett. they were inconsistent. some were completely incredible. and they applied to white jurors, some of these reasons applied to white jurors who had the same characteristics as the african-americans who were struck and then lastly, and what is so important are in miller, they didn't question the jurors

about the reasons for striking them. they gave reasons for striking. one question would have cleared up some of these, and miller says that the failure to engage in meaningful voir dire about whatever your reason is, is evidence suggesting that the explanation is a sham and a pretext. >> mr. bright, i have found some circuit courts who have ruled on appeal or on habeas which is if they can find one legitimate reason for striking a juror, that is enough to defeat a batson challenge. do you believe that is an appropriate rule? are you suggesting a different approach to the question? >> well, it can't -- i would suggest it can't possibly be because this court said -- and just alito's decision, snyder

vs. louisiana, where the peremptory strike was shown to have been motivated in substantial part by race it could not be sustained, and i would suggest to you, it shouldn't even really say substantial because if this court,ings it said so many tames, is engaged in inceasing efforts to end race discrimination in the criminal court, then strikes motivated by race cannot be tolerable. of course this is point it out here in the meeky -- this is a serious problem. not just in this case but in other cases where people come to court with their canned reasons and just read them off. that happened in this case where one of the reasons given was just taken verbatim out of a -- would of the reasons were taken verbatim out of a reported case. so you don't have the reason for the lawyer in this case help said my personal preference -- it wasn't his personal preference. wait the personal preference of

some u.s. attorney in mississippi who gave the reason and then it was upheld on appeal by the fifth circuit. but we would suggest that the standard is at least what snyder says, because when you have both -- you can always have -- as miller recognizees -- >> well in response to justice sotomayor's question, if the prosecutor argues a laundry list of reasons for striking a black juror and some of those are reason -- some are imapplause able -- implausible, how should the court -- >> the fact there is a laundry list suggests in and of itself that the court should scrutinize the reasons carefully and should be suspect of the reasons because otherwise what the court is going to do is just simply encourage prosecutors or any party in a case, since batson applies to everybody -- is going to encourage a party to give as many reasons as possible and hope one will be acceptable, and

in this -- >> don't you think this is case-by-case? suppose there's one reason that is a killer reason. like this individual has numerous prior felony convictions, and then the prosecutor says, in addition, and this person didn't -- looked down at the floor in answering the questions, and didn't seem to pause and didn't seem to understand some of the questions. under circumstance like that, couldn't the court say, well, there's one reason here that would -- that is clearly a justification for premotor re strike. we don't have to determine whether there's evidence that the person was looking down at the floor. >> well, first batson said and the subsequent cases said you look at all relevant circumstances. it mate be if all the circumstances that are there are the ones you said you would come to the conclusion that of the two reasons there was a valid reason. suggest where you have indicia like we have here -- we have an arsenal of smoking guns in this case.

>> a lot of the smoking guns were in the original considerations by the georgia courts. seems to me what you would have to establish to reverse the georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a batson violation, the new smoking guns would tip the scale. isn't that the issue the georgia courts decided. >> when the new smoking gun tells you that the prosecutor misrepresented facts and gave reasons that were absolutely false, demonstrably false reasons and those are not clear before, but you have that now, batson turns on the feasibility of the reasons, turns on the credibility -- >> but all i'm saying and you seem to be agreeing, it's not the overall batson judgment that is before us but, rather, the judgment that the new evidence did not suffice to create a

batson violation where none existed before. >> no. our position is when you look tell new evidence with all the other evidence at trial, that all relevant circumstances considered together, considering it a lot of these reasons we now know from the notes, well now know from the notes there were misrepresents with regard to these ropes. the georgia supreme court, just as an example, justice scalia, upheld the strike of miss garrett on two bases 'she was a social worker, and that her cousin had been arrested for drugs. she was not a social worker. and secondly, the prosecutor didn't find out until after trial about her cousin's arrest. so it cooperate have possibly been a reason for the strike. >> and you are saying in answer to justice scalia, when you hand the notes, those notes cast doubt on some of the prosecutor's justifications in the first round. >> they do that, and they show misrepresentations to the court and they show an overarching

goal of separating out the african-american citizens, treating them differently, and then putting them on this list of definite nos. >> mr. bridget, just to make sure i understand, all the notes in the prosecutor's files were new. is that correct? >> yes, knew to this case. there will three people. the two prosecutors and the investigator who put those together. i would like to reserve the balance of my time. >> thank you, counsel. >> miss burton. >> host: mr. chief justice and may it please the court. there are two important factors in this case when reviewing the entirety of the evidence. one is the petitioner bears the burden of establishing clear -- >> i asked you as well to address that certiorari question first. >> and respectfully i disagree with petitioner's counsel on this issue. believe norfolk, western railway, versus miles, the is this court's opinion, indicates

that -- or states that if there is an issue raised in the lower court and it is raised in the state's highest court, in this case the georgia supreme court, that the georgia supreme court denies discretionary reel view, then it is -- review then it is before the thiscourt on certiorari. >> i don't think this discretionary review. the 11th circuit found it's not under georgia law. reading its opinion seems grounded in the state law of georgia. >> yes, your honor, and that is a hot button issue right now in the state federal courts in georgia. but our position in that -- those cases and i think there's a case before this court on that same issue -- is that georgia's statutes specifically says that is a discretionary appeal. the 1975 habeas corpus act made it's discretionary appeal because the georgia supreme court was getting inundated with appeal after appeal. >> that the georgia supreme

court ever said anything one way or the other whether it's discretionary or not. >> in two cases, read versus hopper, 219 southeastern 2 inside 409 and smith vs. nickels, 270 southeastern 2nd 2nd 550, 1999, they both state those as discretionary. they heave -- have not answered a certified question on that issue. >> could you give -- >> 219 southeastern 2d409. a 1975 case. >> are certify questionses available? >> i believe so. >> i looked at the statute, the statute says, in habeas case, state habeas, that the georgia supreme court must review it. it says must review it. unless it's without merit. i forget the exact words.

>> in state -- i think it's 914 52, state habeas cases out of other pel las review and makes that discretionary. the georgia -- >> then i've been looking at the wrong place. you heard -- he quoted some words. i don't remember the exact words, but it was from a statute in georgia, is that georgia statute said -- i just canned find it in my book here, sorry -- the georgia statute said they shall review the case unless it's without -- it's totally without merit. does that ring a bell? does it ring a bell. >> it does. >> what are the exact words. >> die not know the exact worlds but i believe -- >> the exact word are that certificate of probable cause will be issued when there is arguable merit. >> but i believe that's rule 36

of the georgia supreme court. >> i'm thinking of 914 52 in compliance with that. does that govern this case? >> i believe the statute would trump -- >> the chief justice just read from georgia law, govern this case? the answer is,ey or no? >> no, i believe it's -- >> they do not govern this case. >> i believe -- >> what in your opinion is the georgia statute that says that those words you just held do not govern in this case. >> i believe it's 19 -- i'm certainly open to question -- 1914 52 states state habeas is taken out of other appeals which are normally directly appealed or prisoner appeals and they are discretionary. >> i suppose that a court could have discretionary review but could provide by rule that in the exercise of our discretion,

we will grant any of these unless it's patently wrong. maybe that's what happened here. and if you use your discretion to enact a rule which says you will take cases of a certain court, does the taking of those cases still remain discretionary? that's a nice question, isn't it? >> i think the taking of the case remains discretionary if they find it has arguable merit and the two case is cited specifically reference. >> you just decided to uniformly exercise your discretion in a certain way. >> correct. maybe i'm misunderstanding what you're saying. you're saying there is no such uniform determination, that they will exercise their discretion in a certain way, that they're insistent upon their discretion being discretionary. is that correct? >> that is my understanding.

because this law applies to not just obviously death penalty cases but the multitude of nondeath penalty cases -- >> seem sorry. i'm so confused i can't even -- the state habeas process is different than the regular appeal process. >> that's correct. >> in the regular appeal process that's look at each case with discretion. >> on a direct appeal process, it certainly capital cases it is mandatory review. >> okay. in state habeas they have a rule, an internal rule, that says, we'll take every habeas case unless it's -- it has no arguable merit. right? >> if i may rephrase. think the rule says they will take a case if it has arguable merit. -- >> in the positive. >> right. >> what would lend us to believe that they didn't look at the merits and say there what no

arguable merit? that they just said, we're do tao busy we don't care if there's arguable merit do you believe they did that? >> i -- i would never say -- that would be their reason but i thick they would say -- they do have the records before them and we don't see arguable merit to take this case up. >> so that is a decision on the merits. there's no arguable merits. >> think it is a finding there's nor arguable merit to the application that there has been error below, if that makes its any clearer. >> now it's clear. >> in your view, cert should have granted to the georgia supreme court. >> i believe it should have been grants the the state habeas court because of that discretionary review, and because i believe this court has said in michigan versus long, i think -- if a its unclear, it comes from the state habeas. >> can i ask one more quick question?

you made reference -- this is an issue that is being litigated in the georgia courts? is that right? the the 11 circuit. >> , that. >> this precise issue. >> this issue. >> thank you. >> what issue was that? >> which court certiorari should be directed to? >> well -- >> the issue of what? what is the issue that -- >> am i right that the issue is whether the supreme court review in cases like this is discretionary or not dregs snaer. >> that's correct. in those cases obviously it's coming up from federal court so we're degree move with harrington vs. richter and a different scope of things in that regard. >> the question is in both the georgia supreme court and in the 11th circuit? >> it is currently in the 11th 11th circuit. don't believe we have a case pend now in the georgia supreme

court on that particular issue. i do believe it's -- there is an issue in the case jones very chatman where they asked for rehearing. >> would this be an appropriate case to exercise our discretion to certify the question to the supreme court? >> we would certainly like an answer from the georgia supreme court on that issue. i think the 11th circuit would like that as well. it would clear up both state and federal law for a number of things. >> does the statute that permits the georgia supreme court to certified questions do you know anything about the history of requests for certification? some states have the process this be supreme court rejects the question. >> die not. >> what if we hold it is not discretionary review and then in these cases that are pending the georgia supreme court says, it is discretionary review.

who wins? >> is it ultimately a question for us or the georgia supreme court? >> i think it's ultimately a question for the georgia supreme court as to what the state law is. >> why? me, too? can i good to the merits? is that all right? okay. unless other people -- okay. look, you have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the african-american prospective jurors as a group think had basically said we don't want any of these people, here's the one we want if we really have to take one, but all the evidence suggests a kind of singling out which is the very antithesis of the batson rule. so, isn't this -- i'm just going to ask you. isn't this as clear a batson

violation as the court is ever going to see? >> i don't think it is, and i think because these notes that we have, they don't undermine any of the findings that were given by the prosecutor in his strikes, particularly of mr. hood and miss garrett. they certainly can be internal pretted in two ways -- interpreted in two ways inch our response brief to this court -- we don't know when he say this is why these highlights are there. there's a rome explanation, just as -- a reasonable explanation, just as mr. foster has given speculation. >> what's the reasonable explanation? >> the reasonable explanation is four months prior to trial, as was previously argued, bastion just came out. batson is knew. four months prior to trial defense counsel files a motion and says the strike of any black juror, we're filing a batson challenge two weeks prior to trial he says -- he files a motion and says, there's a racial disparate in 179 jurors

and that's the list that is challenged, the 179. there's racial disparity of the blacks on the list. the day of trial he refiles that. so i would be more surprised if there wasn't some sort of highlighting or -- >> in other words, the argue. you're making is that the reason he highlighted all the block jurors in green and said, black, what about the black jurors and all these different things-was because he was preparing a defense in case of a batson challenge. >> correct. >> so was this argument made before your main brief in this case? >> it was not, and that's -- >> it was not. so if that had been his real reason, why isn't it a little surprising that he never thought of it or didn't tell anybody? until you raise this argue in your main brief? >> and i would say that's on state habeas counsel.

well relied on our res judicata bar throughout state habeas, and then after that basically defended the factual findings 0 -- >> i think we have two arguments. one is the argument he never thought to tell you until quite recently, and the other, after years, and so it's hard to believe that's his real reason, and then there's the second argument that he had about four different reasons and at least some of them could be valid. okay. now, if my grandson tells me, i don't want to watch -- i don't want to do my homework tonight because i'm just so tired. and besides i promises my frequented i'd play basketball. and besides that there's a great program on television. and besides that you know i really -- my stomach is upset but i want to eat spaghetti and has now given me five different reasons. what die think of those reasons? >> well, in this case -- again, think this -- >> one may be valid. >> correct. and the other ones also -- day haul may be valid but not as strong as the first one.

but in this case, i think the important part -- >> wait. the point he gave 40 different reasons and the very fact he gives 40 different reasons and many of them are self-contradictory, obviously not applicable, totally different from -- that's why i used my grandchild analogy. so i would say my answer to my grandchild is, look, you're not too tired to do your homework. and i think any reasonable person looking at this would say, no, his reason was a purpose to discriminate on the basis of race. tell me why i'm wrong. >> you have to look at the time period this was done. this was done not a year after bastion came out, and even throughout the transcript, defense council and the prosecutor say we don't know where bastion is going so in this case the prosecutor, dealing with batson, the first time in history anybody has had to put strikes on the record -- >> he is simply wrong. he puts down if it comes down to

having to pick one of the black jurors, miss garrett might be okay. >> that's mr. run del, the investigator. >> that seems to me to undercut the argue. we, they're just -- they made a mistake of -- in batson, sure, it was new but they're wrong. >> well, let me say i think that's why there was a laundry last because he was ease spousing every reason he had. with tornado in lundey's notes -- that was the investigator who said if we have to choose a black juror,s is one. >> the def until no list -- >> the only person that was asked about that was mr. lundey, who supposed he cannot identify who wrote the list. so, we don't -- >> we know it came from the darn's -- d.a.'s office.

>> i don't think that was ranking of jurors because when you lack -- they did score jurors throughout. >> there were five african-american jurors. on the defendant it in -- one of them was miss garrett, said if we have to have one, garrett, but garrett then shows up on the definite no list. >> correct. >> weren't we told that the only three people who did the investigation on batson were the two prosecutors on the case and mr. lundey? if mr. lundey says i didn't make that list, it has to be one of the two prosecutors. >> one of the two prosecutors and one was not there on the day the jury was struck, on mr. lanier was. but if that's not mr. lanier's thought process of the definite no list -- i don't see that gets you to clear error in the striking of mr. hood or miss

garrett. >> seems an out and out false statement. the reason was given -- one of the reasons for garrett being struck is that her cousin was arrested. then the prosecutor doesn't know that at the time of the voir dire. he doesn't know until after the voir dire. that the cousin was arrested how could it possibly be a rope at the time of the voir dire. >> don't think the record bears that out if the highlighted notes that petitioner wants to say these were used during voir dire, these were used during the strike, in those notes --ing this is that joint appendix page 256 -- angela is written beside miss garrett's name in mr. lundey's notes where he said he wrote down things he knew prior to the strikes, prior to voir dire, what he knew about individual jurors, he wrote down, as to marilyn garrett,

angela garrett is a cousin, and then mr. lanier testified -- >> did the habeas court provide an excuse and say -- i'm sorry. didn't the habeas court accept he didn't know at the time of trial he just knew that lundey didn't want her? >> the habeas court credited the fact that mr. lundeyed a advisedded trial counsel that angela garrett should not be strike. >> that was his explanation for why the prosecutor didn't know about the prior arrest. >> i think the state habeas court crediteds that as one have the facts of the strike. >> mr. lundey didn't want her. he never credited or never said that he knew this -- that he knew about the arrest. >> actually mr. lanier testified twice, though, that he was aware at the time of jury selection he knew about --

>> mr. run disdid but the prosecutor didn't. >> no. in the motion for new trial, that mr. lanier, the prosecutor, testified and said i knew during voir dire mr. run detold me that. that's the joint appendix 105 and 112. >> didn't he also testify -- this is on 14 of the reply brief -- it is ham could tower attention since the trial of this case that angela garrett was arrested? >> it says on that page of the -- on that part of the transcript, which is cannot explain to you no contrast to the notes it is noted she is the cousin prior to the jury selection, unless that means -- i read it several times -- since that time she has been dismissed from her job. again, it's unclear -- >> what about the giving a prone for dismissing her that she was close in age to the defendant? she is in her 30s and he was

18 or 19. >> when mr. lanier initially explained his strike he does state her age so he is not trying to say she is 23 or -- he states her age as 34. and throughout the overall theme was, we don't want younger jurors. we are looking for older jurors closer to the age of the victim, age 79. so maybe the -- no, it's not the most are articulate flaming of it but i think it's more of a generational, she was younger, and that -- the age -- i don't think was a make or break factor, working at head start with underprivileged children, make ore break factor. a similarly situated white juror also struck for that same purpose. >> miss burton, wouldn't you agree -- a lot of these batson cases you'll have reported justifications which they could support 0 valid per rem tori strike, right? -- premotor re strike but the

question for the court was did they support this valid like what was the prosecutor thinking? batson is a rule about purposeful discrimination, about intent, and so it doesn't really matter that there might have been a bunch of valid reasons out there. it's if it was clear that the prosecutor was thinking about race, you agree with that of. right? >> i think if his intent was to strike based on race. >> right. doesn't matter that he could have had a different intent that would have supported a good peremptory strike, and so the question of whether someone or other might have been properly struck by a prosecutor isn't really the question. the question is on the total amount of evidence before us, including all these prosecutors' notes, what was going on with respect to each of these peremptory strikes, and then you have to deal with not just oh, could have been this or that, but you have to deal with all

this information that what it really was, was they wanted to get the black people off the jury. >> what the notes show, begin with mr. hood and miss garrett -- they're contemporaneous notes taken at the time of trial as to each of these jurors are the reasons they struck them. there's no derogatory comments within the notes. >> where there are other reasons that are plausible but could be phony, surely it's the judge that hears the testimony who is best able to judge whether asserted reasons are phony reasons or not. isn't that right? >> yes, yourself. >> sort of hard for us to do it an cold record -- it's harder. no impossible. >> justice scalia raises a good point but no in a case where all the evidence of intentional discrimination was not before the judge at the time. >> i don't think there's clear

error here on these notes of racial discrimination. their strikes are sound. as 0 mr. hood you would not want mr. hood on the jury regardless of his race. the ron he gives a laundry list, like i said, may well have been because we were in 1987 and you're putting out everything you can because you're not exactly sure what you're supposed to do. >> why weren't the notes turned over earlier. >> the notes were not turned over earlier -- it was brought up in the motion for new trial, in november, right after the trial in 1987, and the prosecutor, mr. lanier, says i will give my notes to the court to look enbank if defense counsel will do the same. defense coup did not do so. that was on direct appeal. the georgia court found it was work product and didn't have to be turned open. when we got to state habeas proceedings they found an open records request and they were immediately turned over.

don't the there was any argument at that point. >> what do we do with the failure to ask miss garrett any questions about the issues that troubled the -- for example, he cousin's arrest. there's an assumption that she has a relationship with this cousin. i have cousins who i know have been arrested but have no idea where they're in jail. don't know them. so, he didn't ask any questions. doesn't that show pretext? i'm not going to inquire because she might get off the hook on that. >> well, i think a number of times -- ill know this court's precedent on not asking questions, particularly in voyeur voir dire but as to a number of issues, when you're in voir dire and asking questions you don't necessarily care what the answer is because with regard to mr. hood, if he had said, yes, have a son that's been arrested, it's not going to

bother me a built you prosecuted my son. >> well, stealing hub caps in my mind is decidedly different than murdering people or attacking them the way this case was -- this case was about. i can imagine a father -- why can't you imagine a father saying, it was stealing hub caps. he should have been punished. >> he may well have -- >> the restaurant sports -- >> a risk the prosecutor didn't have to take. if you have somebody -- as i said mr. hood could very well have said that and meant that and never have been lying but in any mind i'm thinking he's going to get black and think, oh, i don't know about this. ...

>> >> on the basis of race. that he goes on to say in addition there is no good reason now or then and says accordingly the court finds the fact of claim is without merit such as the paragraph i would think the reason the

judge found it in your favor there is absent a claim in your favor he could've gone on another ground but at worst why isn't it ambiguous? then why do we take note then aren't we required that the judges on the federal ground? that is justice alito question and the hardest point feet over cut and i want to hear your response. >> i agree it is unclear. >> that is the end of it. >> that is the end of it. it is not clear but one other issue. >> in georgia if you have tax or evidence. >> then the court gets to

look at the issue and go beyond. >> was to have new evidence the court finds that they can be viewed the evidence then i take your beyond the bar. >> i don't think it is what you said say bad again. [laughter] if the issue has been decided on direct appeal and you cannot go back to and that you cannot overturn the state's highest court but if you have new evidence such as this case and it is strong evidence the court feels it has to look at that evidence and it did the you are beyond that race. >> that is exactly how it is framed because it talks about the claims that it lists many claims and then a

bunch of claims that have defaulted and then this is in a separate issue with all the other claims that there are very determination's be made the first sentence of my sentence are very clear the court finds the prosecution did not violate. the last sentence on the merits the petitioner loses. >> as much as ever bite that to be adequate. >> as a preliminary matter we note the following are not reviewable in the first is the claim that suggest maybe the court has two reasons?

and it would fail even if not? >> yes. if anything it is an alternate ruling. >> the supreme court has said georgia law allows that claims for when you fax develop because of a claim that is based on facts the did not exist at the time of the direct appeal is a different claim you fax is a different claim is essentially. >> yes your honor that is the law of georgia. >> counseled you have two minutes remaining cemetery quickly let me first say first is what justice alito'' did it has just come

true our attention that since the cousin was arrested that was made first after the verdict was returned in this case and second if you look at the joy dependents where they give the reasons there is no mention of her cousin whatsoever in there that is the time when she should have been mentioned after the strikes were made and there is no mention at all soweto think but then six months later moving for a new trial now the prosecution gives reasons that they didn't give before to say she was a social worker but she was not in her cousin was arrested but they did not know that at the time and she is loaded, but you cannot add reasons into perpetuity the reasons

those were listed is regarded to the questions that i just want to make one quick point but with regard to mark that dumb kid who had both teachers' aides and literally right in the same neighborhood they had kinder-care and students no questions what kind of children do you have? the also said familiarity with the neighborhood eight cater 20 miles away. and they lived half a mile. so now some more questions to provide a difference within to be treated as a

liar and there are others examples. in regards to the child if you would have passed and he was put on probation. $180 restitution with an honorable discharge from the navy then came back. >> the case is submitted.

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