where you had an apellet court, and then the north carolina supreme court denied review and the question was do you issue the writ, and this court decided, and, the justice said we want to give practitioners, and end the confusing about this. there's no difference. >> you're saying in that case or in other cases. if so, which other cases, we nonetheless addressed the reasoning of the intermediate court. >> you did, in sears versus upton, a case out of georgia. that was to the court of georgia. it came up on the same posture of our case. >> is there a argument that petition could go to the trial court?

i mean our statute says it goes to the highest court in which review could have been had. which sounds like the georgia supreme court. and justice scalia said, the director, their attention to the issues before us. i'm not sure, to me it's an option, to -- to go to the georgia trial court. or is that incorrect? >> well, what this court has said, both in the r.j. reynolds case and brady versus north carolina last year, 2015 this year, once again, there was an inter me yet court decision denied by the north carolina supreme court. i mean i can remember back to 1960 there was thompson versus louisville, it was in louisville kentucky. no court could take the case

because the fine was less than $25. these cases decided by the court, 1986 and this year -- >> putting together two rules that you say we've established. one is, justice said to end the confusing, the petition should be addressed to the supreme court. and then you said we have cases, look through cases, if the supreme court has said, denied, nothing more than denied, we look back, to the last recent decision. those are both decisions of this court, and that's what you are relying on. >> well, and they're not mutually exclusive surf. this court can look back to the last recent decision in making its decision in this case. and i can that's what it should do at the same time, the court's opinions appear us to, on the quick research we did, that, r.j. reynolds and the subsequent

case say that the would issue to the georgia supreme court. we listed it that way. and then, it was listed at the lower court was the superior court. >> what is the state supreme court wrote 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 merit to this and then you say it was a correct application is the issue that we have to decide? >> i think, in r.j. reynolds that's the law, yes. >> could i ask you another question about another issue before you get to the underlying question in the case? the superior court, said, on page 175 of the joint appendix that, the issue of the violation was not reviewable.

and then, it later said, this is 192, that, it will review the claim as to whether petitioner has shown any change in the facts sufficient to overcome the raise judah cat take bar. 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 claim. what is your response to that. >> the state doesn't argue that. the reason for that, is because the court said we're moving, the court is going to address step three, and it is said it is without merit. >> is it a question of federal or state law as to whether or not the petitioner has shown a change in facts?

page 192 language. is that state law? >> that's a state law question. here -- the court decided t. >> well, if it's a state law question, what are you -- what do you have to argue? >> no, in order to decide it, the, exactly like oklahoma, where the court, the oklahoma court had to decide the federal question in order to decide whether it had jurisdiction over the issue and this court held, that where the court has to decide the federal issue and it did. it found that the claim had no merit. so it is decided, the federal issue. there's no contest about that. >> explain to me why decision the federal issue was essential to its decision the state resolution judah data issue. >> because, it fraimentd the question as being that it would

look at the -- they would look at the claim. and, that, if there was mayortroit that claim then the court would grant the writ on it >> if it found that there was not merit. >> you think it was saying whether there was resolution judah cat take or not, whether the new claim has any merit. that's a very strange application. >> well, whether or not there were changed facts, sufficient enough -- >> well, the law is that you can bring an issue that's been litigated before direct appeal. in how about we us -- >> even, right, even if it would produce a different result. >> if the facts are such that it would produce a different result

>> it was going to do step three. >> that's a ruling on the merits. court said, the claim is without merit. that seems like a ruling on the merits to me. >> well, i think, it said, afte- >> after considering these other facts. i think there was some legal errors there. the court said, that, the claim was without merit. 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, that's -- you must take that as what happened. they did not apply a resolution judah cat take. >> no, this court said when the resolution of the state procedural law question depends

upon a federal constitutional ruling the state law is not independent of the federal claim. this court has jurisdiction. page 75. >> i don't want to belabor the point. are you arguing that georgia resolution judah cat take law is this, if someone comes up with any new fact, the thinnest new fact, that is sufficient to wipe out the resolution judah cat take and allow the court to get to the mayor ritz was claim. is that your argument? >> my understanding is the evidence has to be sufficient enough that the court does, and rule on the merits of the issue that's what happened here. this was into the matter of just adding one more leave -- >> we want you to the get to the mayor rites. why is that -- justice scalia question. why is that an issue of federal law.

>> because the court decided that's an issue to decide the underlying state law. i think, they are clear on this. since the state didn't raise this, in their brief it's not briefed before this court. but i think that's the decision kise this. >> i think we have your argument on the court. >> thanks, 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 challenge, and therefore, it was necessary for them to see if there was a race neutral ground

for disqualifying. >> whoss, what the lawyers did here, these lawyers have practiced here for a long time. they said the prosecutor always strikes the blacks. we think they're going to strike all the blacks, but last year the supreme court of the united states decided and we asked the court not tolet that happen in this case. now, if the prosecutor is willing to avoid it, but secondly, with regard to the information that's collectedded 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 heart heart or miss garrett might be okay. and the district attorney said, garrett has the most potential of the black perspective jurors.

the blacks were taken out of the picture here. they were dealt with seply. over the weekend, the jury questioning ended on a friday. over the weekend you have your chance to decide who they are going strike. they knew, because the jurors are listed in order. the state goes first and then that juror is o. there's no going back. there's no striking people, here and there. they develop three strike lists and one of those strike lists was a list headed defendant no. these are the people absolutely are not going to be this jury. only six listed on the list of definite no's and the first five are african americans and the six, is that she can't not impose the death pen that willtism the state moved to strike her for cause. the judge probably eared in not

grant that go and she ranked behind the black jurors. >> at the time, he 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 has fallen out of the case. how does that affect the analysis. >> he did accept women, though, as well. bear with me just a moment. >> the court has not yet held, that it applied to women. but the court did say, it could be used as pretext, women, for

striking on the basis of race. in this case, the prosecutor struck 3 white jurors and then he struck the three black jurors, women. the three black women and 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, oh, no, it was on the motion for a new trial hearing. whether he had done the same the same extensive back ground check on all jurors. did you find any evidence of that check. >> the only -- what that is talking about, investigators said this, was the color, race coded color list. those first four lists you have in which the blacks are marked with a b. and highlighted in

green, with a marker at the corner -- >> so your understanding of that statement was that all, he had only done an extensive search on the blacks on the list. >> well, it's clear, mr. lunde had prepared a list, notes in which he talked about just 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 challenge, not in the papers but at trial. did he again say that this was part part-and-parcel of the prosecutor's pattern. >> he didn't say that. but, i point this out when they discussed the motion before trial, there was never a suggestion that there wouldn't ab bat son hearing. everyone knew what was going to happen and all the blacks would be struck.

but, the defense put their motion in writing, and, relied upon that throughout -- >> i was just surprised that we didn't hear about this preparation for a bat son hearing until the how about we us. >> well, the prosecucushion opposed that. and then when the prosecutor testified, he did something i never saw him do, he cut a bargain, with a judge and the lawyer saying i will testify but only if i don't have to show them my notes. you testify, and rely upon notes, the other side can see the notes. but here, these notes were guarded until 2006 when we obtained them through a freedom of the -- what they call open records act. >> the prosecutor said that you -- they said, we never

vote -- authorize orelieed on those notes. and, you didn't call the prosecutors to test the veras aty of that assertion. >> all the prosecutor talked about were the color highlighted notes. they filed a affidavit, and all they said, was we didn't highlight it in green and we didn't tell anybody else to highlight it in green and mr. lanier says i don't have anything else to say beyond what i said at the bat son hearing. mr. pull len said the only other thing i didn't use those green highlights lists in choosing the jury. that's the first few pages. what is damning is not so much of that but the notes list, the misreprepen sayings that miss garrett, they wanted her. that's what they told the trial

court. this showed their openness to having. miss garrett was on the definite no list. she was never in the running to be on this jury. and they represented to the court that because another african-american, shirley powell was excused for cause, there were 5, at the start. but one said, turns out i know somebody in the family. she was exsceufd for cause and had it nt been for that, that miss garrett, would have, and they're still arguing this, that they want they wanted her and didn't want her. they give 11 reasons for why she would not be a good juror. she doesn't respect the court. if you believe all the things 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 false and not a supported by the evidence, including reasons they gave about miss garrett. they were inconsistent. and they applied to white jurors, who the same characteristics, and then lastly, what's so important, they didn't question the jurors about the reasons for striking them. they gave reasons for striking them. one question would have cleared up some of these. and the failure to engage in any meaningful voir deer, about the reasoning, is evidence suggesting that the explanation is a sham. >> mr. bright, i have found some circuit courts who have a rule,

appeal or on habeas, which is if they can find one legitimate reason for striking a juror, that's enough to defeat a bat son challenge. do you believe that's a appropriate rule? are you suggesting a different approach to the question? >> well, i would suggest, it can't possibly be. because this court said, snyder versus louisiana, where the strike was shown to have been motivated by race, that, it cotton non sustained. excuse me. i would suggest, it shouldn't even really say substantial because if this court, as it said so many times is engaged, in efforts to end race discrimination, in the criminal courts, then strike, the strike

motivated by race cannot be tolerable. of course, as pointed out here, this as serious problem, not just in this case but in other cases where people come to court, with their reasons, and read them off. that happened in this case. one of the reasons that was given, were taken verbatim out of a reported case. so you don't have the reason for the lawyer. he said my personal preference. it was the preference of some u.s. attorney in mississippi. and then it was upheld on appeal. but, we would suggest that, the standard is at least what snyder says, because when you have both, you can always have as he recognized. >> in response, to the question, if the prosecutor argues a laundry-list of reasons for striking the black juror and

some of those are reasonable, and some are im plausible, how should the court approach it. >> the court looks at which reasons are protected, and, the court should scrutinize the reasons. what the court is going to do, is just encourage prosecutors or any party, in case, just give as many reasons as possible and hope that one will be acceptable. >> don't you think this is the case-by-case thing? suppose there's one reason that's a killer reason. like this individual has numerous prior felony convictions and then the prosecutor says, and this person didn't, he looks down at the floor, in answering the questions, and didn't seem to pause and understand some of the questions. under a circumstance like that,

the court could say, that's one reason, it is clearly a justification for a strike. we don't have to determine whether there's evidence that the person was looking down at the floor. >> of course, bat son says, you look at all relevant circumstances, it may be that the are there you would come to the conclusion, that of those two reasons that there was a valid reason. i would suggest where you have, like we have here. we have an arsonnal of smoking guns. >> a lot of them were in the original decisions, by the georgia courts. it seems to me, what you would will 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 violation, the new smoking guns, would tip the scale. isn't that the issue?

>> well -- when the new smoking gun tells you that the prosecutor misreported facts and gave reasons that were false, and those are not clear, before, but you have that now. i mean, bat son turns on the credibility -- >> all i'm saying, and you seem to be agreeing is that it is not the overall judgment that's before us but, rather, the judge meant that the new evidence did not suffice to create a bat son violation where none existed before. >> our position is when you look at the new evidence, with all the evidence at trial, that, all relevant circumstances considered together. a lot of these reasons we know from the notes, that there were misrepre sen tastings. the georgia supreme court, upheld the strike, of miss garrett on two bases.

she was a social work examiner and her cousin had been arrested for drugs. she was into the social worker. and the prosecutor didn't find out until after trial about her cousin's arrest. it couldn't have been a reason for the strike. >> you're saying, that, when you read the notes those notes, cast doubt on some of the prosecutor's justification. >> they do that and they show misrepresentations to the court and they show a goal of separating out the african-american citizens, putting them on this list of no. >> all the notes in the files were new is that right. >> new to this case yes. >> there were three people. two prosecutors and the investigator who put those together. >> thank you.

>> miss burton. >> may it please the court, i believe there are two important knack tors in this case when reviewing the entirety of the evidence. one, the petitioner bears the burden. >> i'll ask you as well, to address the question, first. >> respectfully, i disagree with the counsel on this issue. >> i believe the western railway, which is this court's opinion indicates or states that, if there is an issue raced in the lower court and it is raised in the highest court, the georgia supreme court, and denies review then it is before this court, from the lower court. >> the problem is, i don't think this isdess discretionary review. the 11 circuit found it is not. it seems pretty grounded in the

stated law of georgia. >> yes, and that is, that's a hot-button issue in the state federal courts in georgia. but our position, in that, those cases, and i think there was a case before this court, is that georgia statute, specifically says that is a discretionary appeal. the habeas corpus act made it, because it was just getting inundated. >> has the georgia supreme court ever said anything as to whether it is discretionary or not. >> in two of their cases. reed versus hopper, and smith versus nichols, 270, they both state those. but they have not answered, a certified question. >> could you give meet reed. >> yes, 219 southeastern 2nd,

409. 1975 case. >> are the questions available in georgia? >> can we certify questions to the georgia supreme court. >> i believe you can. >> i looked at at the stat stit, the stat stitute says, that the georgia supreme court must review it. it says it must review it unless it's without merit. i forget the exact words. >> in state -- >> well, i think it's 914, 52. state habeas cases out of other appellate review and makes that discretionary. >> i've been looking at the wrong place. you heard, him say, that he quoted some words. but they were what i read, it was from a statute in georgia.

georgia statute said, "i just can't find it. sorry. the georgia sphawt toot said they shall review the case unless it is without -- it's totally without merit. does that ring a bell. >> what i'm saying. >> it does ring a bell. >> what are the exact words? >> i do not know. >> a certificate of probable cause will be issued when there is arguable merit. >> i believe that's rule 36 of the georgia supreme court. >> 914, 52 -- >> in compliance with that. okay. >> does that govern this case. >> i believe the statute. >> the worth that the chief justice just read from georgia law, the answer is yes or no. >> no. i believe -- >> they do not. >> what in your opinion is the

georgia statute that says those words, do not govern this case. >> i believe it is, i'm -- 1914, 52, states that state habeas is taken out of other appeals which are directly appeals and they are discretionary. >> i suppose, that, a court could have discraig nair view and could provide by rule that in the exercise of our discretion we will grant any of these, unless it is wrong. maybe that's what's happened here. if you use your discretion, to enact a rule which says you will take cases after certain court, does the taking of those cases still remain discretionary? that's a nice question. isn't it? [laughter]

>> i think the taking of the case does remain discretionary, and the two cases, that i find, it referenced. >> just decided that you will exercise your discretion, in a certain way. >> correct. >> but, maybe i'm misunderstanding what you are saying. you are saying there is no such uniform determination that they will exercise their discretion. is that correct? [laughter] >> that's my understanding, because the -- this law applies to not only death but a multitude of. >> i'm so confused i can't even -- [laughter] >> the state habeas process is different than the regular appeal process. >> that's correct. on the regular appeal process, they look at each case with discretion. >> direct appeal process, and

capital it is mandatory review. >> okay. in state habeas they have a rule that says, we'll take every habeas case unless it has no merit, right. >> if i may rephrase i think the rule says they will take a case if it has merit. >> the positive. so, what would lend us to believe, that they didn't look at the merits and say there was no merit? >> that they just said we're too busy we don't care? do you believe they did that? >> i would never say they were too busy to take the case. >> i would never say, that would be the reason. but they would say we have looked that the case. they do have the records, before them. and we don't see merit.

>> so that is a decision on the merits. >> i think it is a -- no arguable merit to the application, that there has been error below. >> okay. now it is clear. >> in your view, it should have been granted to the georgia supreme court. >> i believe it should have been granted to the state hieb we us court. because of that review, and because i believe, that this court has said, in michigan versus long, that if it is unclear, it comes from the state. q.can i ask one quick question. this is an issue that is being lit take gated in the georgia courts is that right? >> that's correct. >> this precise issue. >> yes. >> thank you. >> to -- >> what issue is that? [laughter] >> is it issue of which court, should be directed to? >> well -- >> the issue of what?

>> am i right that the issue is whether the supreme court review, in case he is like this, is discretionary or not. >> that's correct. >> it is come up from federal court so we're dealing more with the different scope of things in, that regard. i don't believe we have a case pending now in the georgia supreme court. >> on that particular issue. >> i do believe there's an issue up here in the case, jones, versus chapman -- >> do you think this would be an appropriate case for us to authorize our discretion? >> we would like an answer from the georgia supreme court on that issue. i think the 11th circuit would like that as well.

>> to certify questions. do you know anything about the history of the request for certification. some states have such a process, but. and rejects the question. >> i do not.

you have a lot of new information here from these trials that suggest that what the prosecutors were doing was looking at the african-american prospective jurors as a group and they had basically said we don't want any of these people. here is the one we want it 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 you know i mean, i'm just going to ask you at isn't this as clear a batson violation is this report is ever going to see? >> i don't think it is andy's notes that we have, they don't undermine any of the findings that were given by the prosecutor particularly mr. miscarriage. it certainly can be interpreted in two ways and in our response brief to this court we don't know when we said you know this is why these highlights are

there. there's an explanation mr. foster is giving speculation in the argument really don't know. >> what is the reasonable explanation. >> to reason about explanation was it took four months for trial. the defense counsel for filed a motion strike and a black juror filing a batson. he filed a motion and says there is racial disparity and 171 jurors and that's the batson challenge. there is racial disparity of black perspective jurors on that list. he refiled back so i would be more surprise quite frankly if there wasn't some sort of highlighting. >> in other words the argument you are making is that the reason he highlighted all the back -- black jurors agreed and those in blackwater about the

black jurors and all these different things was because he was preparing a defense in case of a batson challenge? if that's correct with this argument made before your main brief in this case? >> it was not. >> it was not so effective in israel reason is that a little surprising that he never thought of it or didn't tell anybody? shouldn't he raise this argument in your main brief? >> i would say that's on state habeas corpus. we provide to out state hey and then after that basically defended the factual findings. >> we have to arguments. one is this argument that 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 40 different reasons and at least some of them could be valid. if my grandson tells me, i don't

want to do my homework tonight because i'm just so tired and besides i promised my friend i would play basketball besides that there's a great program on television and besides that you know my stomach is upset but i want to eat spaghetti and he gives me five different reasons. what do i think of those reasons? >> will in this case and began. >> one may be valid. >> correct and they all may be valid but they all may not be as strong as the first one but in this case the important part. >> the point is he gave 40 different reasons and the very fact that he gives 40 different reasons and many of them are self-contradictory and obviously not applicable in totally different and that's why i use my grandchild's analogy alrighty? i would say my answer to my grandchild is look you are not too tired to do your homework and i think any reasonable

person looking at this would say this reason was a purpose to discriminate on the basis of race. tell me why i'm wrong. >> i think because you had to look at the time. map this was done. it was done a year after it came out in the year after the transcript defense counsel and the prosecutor says we don't know where batson is going so in this case the prosecutor, the first time in history anybody has had to put a strike on the record they had. >> he puts down, comes down to having to pick one of the black jurors, ms. garrett might be okay. that seems to me to undercut the argument they misstated and they made a mistake in batson. but they are wrong. >> first let me say i think

that's why there was a laundry list because he was spouting the reasons he had but with regard to the investigator who said if we have to choose a black juror she may be the best one. >> who was was on the definite no list? >> the definite no was nobody. the only one that was asked about that was mr. lundy and he couldn't identify who wrote that list. >> those of the possible choices. >> we know it came from the das office. >> and this is a definite no. >> i don't think i was a ranking of jurors because when you look they did score jurors throughout. >> but they found it african-american jurors and one of them was garrett and they said if we have to have one let it be garrett but garrett shows

up on the definite no list. >> correct. >> were retold the only three people who did the investigation on batson for the two prosecutors on the case for mr. lundy so if mr. lundy says i didn't make that it has to be one of the two prosecutors. >> it had to be one of the two prosecutors and one was not there on the day the deal was struck only mr. lanier was. if that is not mr. lanier spot process i don't see that gets you to clear error in the striking of mr. hood or ms. garrett. >> now for the false statement the reason, one of the reasons for garrett being struck is that that -- was arrested and the prosecutor doesn't know that at the time. he doesn't know until after the voir dire that he was arrested.

so how could he possibly be there at the time of this lack. >> i don't think the record bears that out. the highlighter knows that the petitioner wants to say they used voir dire. angela is written out besides ms. garrett's name and did mr. lundy's notes were he wrote down things prior to war dear and what he know about jurors he wrote down to maryland garrett, angela garrett a cousin and mr. lanier testified. >> i'm sorry. did the habeas corpus say he didn't know the time of trial? he just knew that lundy had. >> the habeas corpus actually credited the fact that mr. lundy

had advised trial counsel that angela garrett dropped. >> that was his explanation for why the prosecutor didn't know about the prior arrests, correct? >> i think the habeas corpus credit to that is one of the facts of the strike. >> mr. lundy never credited, and he never said that he knew about the arrest. >> mr. lanier to what testified twice that he was aware at the time of jury selection that he knew about it. >> mr. lundy did that but the prosecutor didn't. >> no in the motion to trial the prosecutor testified and said i knew during voir dire mr. lundy told me that told me that and that's joint appendix 105 and 112. >> didn't he also testified, this is on 14 of the reply brief it has come to our attention since the trial of this case that angela garrett was arrested

>> it says on that page of the transcript which i cannot explain to you in contrast, it is noted that she is the cousin of a prior jury selection and i have read it several times, since that times she has been dismissed from her job. again it's unclear. >> what about giving a reason for dismissing her that she was close in age to the defendant? >> she was in her 30s and he was 18 or 19. >> he does stay their age so he is not trying to say she's 23. he states that her age is 34 and throughout the overall theme it was we don't want younger jurors. we are looking for older jurors closer to age 79. it's not the most articulate framing and i think it's more of

a generational she was younger and the age was not a make or break factor. voir dire also was struck for that purpose. >> but ms. burton wouldn't you agree a lot of these batson cases you will have purported justifications which they could support a valid strike but the question for accord is but did they support this ballot preemptory strike in other words what was the prosecutor thinking? the batson ruled about purposeful discrimination about intent so doesn't really matter that there might have been a bunch of valid reasons out there if it was clear the prosecutor was thinking about race. you agree with that, right? >> i think the intent was to

strike based on race. >> it doesn't matter that he could have had a different intent that would have supported a good preemptory strike and so the question of whether you know someone or other might have been properly struck by a prosecutor isn't really the question. the question is on the total amount evidence before us including these prosecutors note what was going on with respect to each of these preemptory strikes and then you have to deal with not just oh at could have been this sort could have been that. you have to deal with all this information of what it really was was they wanted to get the black people off the jury. >> what the it shows with mr. hood and ms. garrett there are contemporaneous notes taken at the time of trial and the reasons we struck them. there are no derogatory comments within those votes. >> were there other reasons that

are plausible but could be phony surely it's the judge that here's the testimony who is best able to judge whether asserted reasons are phony reasons or not. is that right? >> yes sir and i don't believe believe. >> certainly to put it on the record. it's harder, not impossible. >> justice scalia made a very good point but not in the case for all the evidence of intentional discrimination was not before the judge at the time. >> and again i don't think there is clear error here only racial discrimination. their strikes are sound and as to mr. head you would not want mr. hood on the jury regardless of his race. the reason he gives is a laundry list like i said you are just putting out everything you can because you are not exactly sure what you are supposed to do.

>> what were the notes turned over earlier? >> the notes were not turned over earlier although was brought up in the motion for a new trial in november after the trial of 1987 and a prosecutor mr. lanier said i will give my notes to the court if defense counsel will do the same. defense counsel chose not to do so. that issue was raised on direct appeal by the supreme court. they found it was a work product and it did need to be turned over over to over to the over to lew at the state hate these proceedings they had a request under georgia law they were immediately turned over. i don't think there was any argument about it at that point. >> is their failure to ask ms. garrett any questions about the issues that troubled, for example her cousin's arrest. there's an assumption that she has a relationship with his cousin. i know hundreds that i know have been arrested but i have no idea whether they are in jail.

but he didn't ask any questions. does not show pretext. [inaudible question] not going to inquire because she might get off the hook on that. >> well, i think a number of times and i know this court is not asking questions but as to a number of issues i think when you're in lived here and asking questions you don't necessarily care what the answer is because with regard to mr. hood if he had said yes i have a son who's been arrested it's not going to bother me a bit that you prosecutor my son. >> in my mind it's decidedly different than murdering people are attacking them the way this case was about. i'd can imagine, why can't you imagine a father saying he was dealing and he should have been punished.

>> and he may well have but it's a risk. it's a risk the prosecutor did not to take. as i said mr. hood could very well have said that but in my mind i'm thinking he is going to get back there and he's going to think i don't know about that. >> i know i would ask it different question for your wrap this up and i would like you to respond to the question that justice alito initially asked and that is there an independent state ground here? you are familiar with the record and i read on page 192 of your record the decision and the first paragraph supports the view that you would like to hold i think that this is based on race which is a state map and then there was the paragraph which was read on page 195 and 196 where the judge says the reason that i reached that conclusion is because the notes

and records submitted by the petitioner failed to demonstrate purposeful discrimination on the basis that the race was the basis, okay? then he goes on to say in addition there's no good reason now or then. and then you conclude accordingly the court finds the renewed hats and claim is without merit so if i readjust that paragraph i would think the reason that the judge found in your favor if he decided the batson claim. he didn't have to. he could have gone on some other ground but that's a ground to did go on but at first why isn't it ambiguous? if it's ambiguous why don't we take no. i think if it's ambiguous then are we required to assume that the judge -- on the federal

ground. that is alito's question which is the hardest point for you to overcome and i want to hear your response. >> i actually agree that it's unclear. >> that's the end of it is that? >> it is the end of it. i think it's unclear but one other issue. >> in georgia if you have new facts or new evidence stevemack arrests giuda, goes out the window. >> been the court can look at the issue and go beyond. in this case once you have new facts or new evidence if the court in this case finds that they can review the evidence of a new in the new review has had been i think you are beyond that are. >> i don't believe what you just said. said again. >> okay. if the issue has been decided on direct appeal and you cannot go back to it and can't obviously

overturn the states highest corporate branding have new evidence such in this case and it is strong evidence that the court feels that it has to go, tester look at that evidence in this case it did then i think you will be in the counter bar. >> i think that's how the decision was framed because the decision talk about race papayans. this is in a separate issue the batson issue ended this section with auditor plans that there were determinations being made about it the first sentence unless and as my% and claims the prosecution did not violate batson versus kentucky and the last sentence on the merits the person that petitioner loses.

>> as much as i would like it to be on the state law ground i'm not sure i can clearly. >> would you base the student -- has cited by the respondent the following claims are not reviewable based on the race but giuda caught up. it's barred by raise giuda qaeda and it would fail even if it were not. >> yes, if anything it is an alternate ruling. >> the supreme court has said georgia law allows claims to be revisited when the new benefit develops in most of the time direct appeal based on facts that did not exist at the time

of the direct appeal. it's potentially a different claim. that's what the supreme court said. this action is essentially different claim. >> yes your honor. >> thank you counsel. mr. bright you have two minutes remaining. >> thank you very quickly let me first say with regard to what justice alito said that is just come to our attention since the case that ms. garrett's cousin was arrested that was on may the first in dallas after the death verdict had been returned in this case. secondly if you look at the joint appendix on page 56 and 57 where they give the reasons for striking ms. garrett there is no mention of her cousin whatsoever in there. that's the time when she should have been mentioned after the strikes are made and yet there is no mention of that at all so i don't think, and then six months later there is a motion

for new trial and now the prosecution is adding new reasons that it didn't give at the batson hearing. it's saying she was a social worker. she wasn't a social worker. they are saying her cousin was arrested and they didn't know that at the time of the jury. they say she's low income but you can't add reasons on into perpetuity. the reasons articulated the prosecutor has to stand or fall on the reasons. with regard to the questions i want to make one quick point on that because there's not much time but with regard to ms. garrett and martha duncan who were both teachers aides who were in schools that were literally right in the same neighborhood ms. duncan had kindergarten students and ms. garrett was -- no question to you what kind of children do you have ms. duncan? ms. duncan if you look they also said familiarity with the

neighborhood ms. garrett is 15 or 20 miles away and ms. duncan, her school was taught in 50 yards away and she lived a half-mile from the school. both of them answered that they were familiar with the area where the victims lived. now some more questions after those answers would have provided a difference but instead ms. garrett is treated as a liar and ms. duncan is accepted and serves as a juror in this case. there are other examples. with mr. hood particularly with regard to the child but if you have asked what about your child who was arrested ex-$180, just a second. $180 restitution and it went off to the navy served his country honorably and got an honorable discharge and came back. >> thank you counsel. the case is submitted.