>> hours series continues next monday with the supreme court 19 52 decision with youngstown

sheet and tube versus sawyer. that president truman acted beyond his authority and seizing control of the nations is steel mills when an imminent strike was threatening to shut down operations. the supreme court ruled it was unauthorized. find out more next monday live c-span,p.m. eastern on c-span3, and c-span radio. learn more about the cases series online by going to c-span.org/landmark cases. you can order the book, featuring background, and highlights of each case written by veteran's supreme court journalist tony mauro. it is available for $8.95 plus shipping.

coming up on c-span, the supreme court oral argument in foster v. chatman. and combatingis extremism. later, organizing for action and comments by president obama. >> is c-span has a full lineup of veterans day programming for you. join us tuesday night starting at 8:00 p.m. eastern. onmer first lady laura bush hiring our heroes, a conference about veterans organized by the chamber of commerce and the george w. bush institute. c-span's washington journal from 10:00 a.m. with the latest and your input via calls, posts, and tweets. conversations with freshmen , beginningcongress with a former marine who served four terms and iran.

and a former army ranger whose unit helped hunt down saddam hussein. the wreath-laying ceremony at the tomb of the unknowns at the arlington national cemetery. a representative talks about his service in iraq as a former navy seal. followed by a harvard graduate who decided to join the marines and fight in iraq. watch all of the veterans day coverage at c-span.org. >> next, the supreme court oral argument in foster v. chatman. it revolves around timothy chatman, who was convicted of killing a woman. they will decide whether the case was racial. this is one hour.

>> we will hear arguments first this morning in foster versus chatman. >> 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 perspective jurors. >> maybe you could address the question we raised on friday with respect to which courts. >> we filed this petition to the supreme court of georgia. it appears to us from looking at this over the weekend that r.j. reynolds tobacco company versus durham county, which the court decided in 1986, the court said unless there was positive assurance that the decision was not a ruling on the merits, the writ went to the supreme court. the georgia court, the rule nonetheless is that a certificate of probable cause is to be granted if there is arguable merit to the case.

>> does that affect the scope of our review? are we addressing the claim on its own merits? >> this court has looked through to the last recent decision, the decision of the habeas corpus court. in georgia, an application is

made for a certificate of probable cause to the georgia supreme court and that is often denied summarily, as it was in this case. >> i really do not understand that. you say we would be reversing the georgia supreme court. all that they held is there was no arguable basis for its review. if we reverse that decision, we tell the georgia supreme court,

you are wrong, there is an arguable basis for you accepting review. we ought to remand to that court requiring them to accept the review. how can we reverse them on an issue they never considered? >> you have the intermediate appellate court. we want to give practitioners, end the confusion about this, it goes to the state supreme court. there is no difference in our situation here. >> in that case or in other cases -- if so, what other cases? we address the reasoning of the intermediate court? >> in sears versus upton, 2010, the supreme court of georgia, but it came up in exactly the same posture. >> is there an argument the petition could go to the trial court? our statute says it goes to the highest court in which review could have been had. it sounds like the georgia supreme court.

the superior court said on page 175 of the joint appendix that the issue of the batson violation was not reviewable based on the docket of res judicata. it later said, and this was page 192 of the joint appendix, that

it will review the batson complain that -- batson claim, -- if you put those two together, you could argue that the superior court decided only the question of state law. namely, whether the situation here was such that there could be review of the batson claim. what is your response to that? >> the state does not argue that and the reason for that is because the court said that the court what address step three of batson and said foster's batson claim was without merit. >> is it a question of federal or state law as to whether or not the petitioner has shown a change sufficient to --is that the state law question?

>> here, -- >> if it is a state law question, then what you have to argue? >> in order to decide it, it is like the case in oklahoma where the court, the oklahoma court had to decide the federal question in order to decide whether it had jurisdiction over the issue area this court held that where the court had to decide the federal issue, and it did in this case, it found that the batson claim had no merit. it is decided, the federal issue. there is no contest about that. >> explained to me why deciding the federal issue was essential to its deciding the state res judicata issue. >> because, it framed the question as being that it would look at the batson versus kentucky claim.

if there was merit to that claim. then the court would grant the writ on it. on the other hand, if there was not merits on it -- >> that is a very strange application of res judicata to me. whether there were changed facts sufficient enough -- >> you can bring an issue that has already been litigated on indirect appeal. >> even if it would produce a different results. >> if the facts are such that it would produce a different results. >> does the court, in your judgment, -- was basically going to do step three of the batson claim.

that is the ruling on the merits. >> the court said that that's claim is without merit. that seems like a ruling on the merit to me. >> i think it said, -- >> after considering, these are the facts. the court said the claim was without merit. >> the court said that it would reach step three on the basis of the new evidence presented. they did it all over. i guess you must take that as what happens. they did not apply res judicata. >> when the resolution of the state proceeds the question and it depends on a federal constitutional ruling, the state law is not independent of the federal claim.

this court has jurisdiction. that is on page 75. >> i don't want to belabor the point that are you arguing that the 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 argument? >> my understanding is that the evidence has to be sufficient enough that the course does what it did in this case and rule on the merits of the issue. that is what happened in this case. it is not -- >> we want you to get to the merits -- why is that issue of federal law? >> because the court decided that that's an issue to decide the underlying state law issue.

i think it is pretty clear on this. i commended to the courts attention. since the state has raised it, it is not briefed before this court but i think that is a deciding case on this. >> i think we have your argument on the point. if i could just say what happened here was that the prosecutors had identified the african-americans}, they had rated them against each other in case it came down to having to select a black juror. >> the prosecutor said the reason -- you had informed them that you would present a batson challenge and therefore it was necessary for them to see if there was a race neutral ground for disqualifying. >> two answers. what the lawyers did here, these

lawyers have practiced here for a long time. they said the prosecutor always strikes all of the blacks from the jury. we think they are going to strike all of the blacks from this case. last year, we asked the court not to let that happen in this case. if the prosecutor is willing to avoid a batson challenge, he could not discriminate. secondly, with regard to the information that is collected here, it does not seem like it is information just to exercise strikes when they say, it if it comes down to having to take an african-american -- might be ok. the district attorney himself said that maryland gearing has the most potential of the blacks -- the black perspective jurors.

in other words, the blacks were taken out of the picture here. they were taken and dealt with separately. over the weekend, the jury questioning ended on friday. the judge said over the weekend you have a chance to decide who you are going to strike. they knew exactly who they were going to strike because the jurors are listed in order. the state goes first. jurrorccepts, then that is non. is on. juror they developed three strike list. one of those strike list was a list headed -- definite no. there are only six jurors listed on the list of definite no's. the first five are african-americans.

the sixth is a juror who made clear -- the judge probably aired in not granting that strike but even she ranked behind the black jurors in terms of the priority that the prosecution had for striking. >> mr. lanier said that if they were not striking the jury because of race, they were striking them because they were women. three out of the four african-americans were 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 as well. just a moment please. >> the court did say that 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. the three black women and the three white women. the final -- justice sotomayor: mr. bright, mr. linear answered yes when during the trial when he was act -- when he was asked -- if he had done the same extensive that brown checks on all of the jurors. did you find any evidence of that extensive background check? >> the race color-coded list. have first four lists you in which the blacks are marked

with a b and highlighted in green. green designates black. >> your understanding of that statement was that he had only done an extensive search on the blacks on the list. stephen bright: it is clear that mr. linear had prepared a list, notes, where he just discussed the black jurors. the state can see in its brief that the focus was on the black jurors. justice sotomayor: during the trial, did defense counsel, when he made his batson challenge, at trial, did he again say that this was part and parcel of the prosecutor's pattern? stephen bright: he did not say that but i point this out. when they discussed the batson motion before trial, there was never a suggestion that there would not be a batson hearing. everyone knew that all of the blacks would be struck in the would have a hearing after that

happens. the defense basically put their motion in writing and relied upon that. justice sotomayor: i was surprised that we did not hear about the preparation for the batson hearing until the abs. >> the prosecution of those did. -- opposed it. i have never seen a lawyer do it. he cut a bargain between the judge and the lawyer. the rules of -- the other side can see the notes. these notes were guarded until 2006 when we appear and then through a freedom of information or open records act.

justice ginsburg: they prosectuion, they said that we never authorized or relied on those notes. you did not call the prosecutors to test the veracity of that assertion. stephen bright: all the prosecutor did was talk about the colored, highlighted no. an affidavit was filed. it is in the joint appendix. all they said was that we did not highlight it in green and we did not tell anyone else to do that.

mr. lanier said -- i do not have anything else to say beyond what i said at the batson hearing and the motion for a new trial. the other attorney said i did not use those green highlighted list in choosing the jury. what is damning about this is not so much that, but the definite no's list. they wanted miss garrett. she was on the definite no list. she was on each of the strike list. she was never in the running to be on this jury. they represented to the court that because another african-american was excused for cause. there were five african-americans at the start. one said, it turns out that i know someone from the family so she was excused for cause. the prosecutor said that had it not been for that extra strike, that miss garrett would have been strike. 11 reasons for why she would not be a good juror.

she is impudent and does not respect the court. if you believe all of the things that they set about her, you would never want her for a juror. i would submit those things are not valid in terms of the reasons. the reason they gave, many of them were demonstrably false and not supported by the evidence. they were inconsistent. some were completely incredible and they applied to white yours. -- white jurors. some of these reasons applied to white jurors who had the same characteristics as the african-americans who were struck. and lastly, they did not question the jurors. about the reasons for striking. they gave reasons for striking, one question would have cleared up some of these. the failure to engage in any meaningful discussion about the reasons is evidence suggesting that the explanation is as sham and a pretext.

justice sotomayor: mr. bright, i have found some circuit courts who have a rule, an appeal or a habeas corpus 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? stephen bright: i would suggest that they cannot possibly be because this court said in snyder versus the louisiana that when a strike is shown to be motivated in substantial part by race, it could not be sustained. i would suggest that it should not even say substantial because if this court, as it has said so many times is engaged in unceasing efforts to and race discrimination in the criminal courts, then strikes motivated by race cannot be tolerated. this is a serious problem. not just in this case but in other cases where people come to court with their can't reasons and read them off. that is what happened in this case.

where one of the reasons was given was taken verbatim out of a reported case. so you don't have the reason for the lawyer in this case, he said my personal preference. it was not his personal preference, it was that of some u.s. attorney in mississippi who gave that reason and it was upheld on appeal by the fifth circuit. when you have -- you can always justice kennedy: if the prosecutor argues a laundry list

of reasons for striking a black juror, then some are unreasonable and improbable, how should the court approach this? stephen bright: the fact that there is a laundry list suggests that the court should scrutinize the reasons very carefully. they should be suspect of the reasons. otherwise, what the court will do is simply encourage prosecutors or any party in a case, to give as many reasons as possible and hope they will be acceptable. justice alito: don't you think this is a case-by-case thing? suppose there is one reason, a killer reason, as this individual has numerous prior convictions. and this person looked at the floor when answering the questions and did not seem to pause and did not seem to understand some of the questions. under a circumstance like that, couldn't the court say that there is one reason here that is clearly a justification for a peremptory strike. we don't have to have evidence

that the person was looking down at the floor. stephen bright: well, of course, batson says that you look at all relative circumstances. and you would come to the conclusion that there is a valid reason. but i would suggest, where you have -- we have an arsenal of smoking guns in this case. justice scalia: a lot of these smoking guns were in the original decision by the georgia courts. it seems to me what you would have to establish to reverse the georgia courts is that the new smoking gun assuming that all of the rest were not enough to demonstrate a batson violation, the new smoking guns would tip the scales. isn't that the issue? >> when the new smoking gun tells you that the prosecutor

misrepresented tax and gave reasons that were absolutely false, demonstrably false, and those are not clear -- were not clear before but you have them now. that's interns on the feasibility of the reasons, on the credibility -- that's in -- >> it is rather the judgment that the new evidence did not suffice to create a batson violation where none existed before. >> when you look at the new evidence, all relevant circumstances considered together, a lot of these reasons we now know from the notes, that they are misrepresentations. together, a lot of these reasons we now know from the notes, that they are misrepresentations. when the georgia supreme court upheld the strike of miss grrett

a social worker and secondly, the prosecutor did not find out until after trial about her cousin's arrest very it could not possibly have been a reason for the strike. youou are saying that when have those notes, they cast doubt on some of the prosecutor's justifications. >> they do that and they show disrespect -- mistress -- misrepresentations to the court. >> to make sure i understand, all of the nodes in the prosecutors files were new. >> new to this case. there were three people, the two prosecutors and the investigator. >> thank you council.

>> mr. chief justice, and make it played that please the court. there are two important factors. one -- i will ask you to address this question first. >> respectfully i disagree. --folk western railway indicates or states that if raised in thesue lower court, and it is raised in the state's highest court, the georgia supreme court, and it denies discretionary review, it is before this court. >> i don't think this is a discretionary review. found it is not under georgia law. that opinion seems pretty grounded in the state's law of georgia.

>> that is a hot button issue right now in the state federal courts in georgia. , isposition in those cases that georgia statute specifically says that is a discretionary appeal. the 1975 habeas corpus act made it a discretionary appeal because the court was being inundated with appeals. has the georgia supreme court ever said anything whether it is discretionary or not? cases,wo of its including smith versus nichols, they both state those as discretionary. answered aot certified question on that issue. can you say that case again? >> that was a 1975 case.

>> are certified questions available in georgia? could we certify a question to the georgia supreme court? >> i believe you can. >> i looked at the statue, it -- in a kbss case case that its would not review it unless it has merits. there is a statute that habeas casess -- -- -- they were exactly what i had read and it was from a statute of georgia. , i cannot find it in

my book. the georgia statute said they unless itew the case is without merit. does that ring a bell? >> it does ring about. i do not know the exact words. the exact words is that a certificate of probable cause will be issued when there is probable merit. i believe that is ruled 36 of the georgia supreme court. i believe the statute would trump -- >> from georgia law -- does it -- does itis case govern this case? it states that habeas is

taken out of appeals and they are discretionary. court could that a have discretionary view but could provide by rule that in the exercise of discretion, we will grant any of these unless it is patently wrong. maybe that is what has happened here. toyou use your discretion enact a role that says you will ,ake cases of a certain court does the taking of those cases still remain discretionary? it is a nice question? i think it does remain

discretionary if they find it has arguable merit. you have just decided you will uniformly argue your discretion in a certain way. >> maybe i am misunderstanding. you are saying there is no such uniformed determination. that they will exercise their discretion in a certain way. they are insistent on their discretion being discretionary. is that correct? >> that is my understanding. multitudepplies to a of cases. >> i'm sorry. i am so confused. process is different from the regular appeal process. the regular appeal process, they look at each case with discretion. >> on a direct appeal process. state habeas there is an

internal rule that we will take every case unless it has no arguable merit. right? >> i think the rules says they will take a case if it has -- arguableit your merit. believewould lend us to that they did not look at the emirates to say there were no arguable merit. that they just said that they were too busy. say they wereer too busy. that wethey would say have looked at the case and we do not see arguable merit to take this case up. >> that is a decision on the merits. there is no arguable merit to

the application that there has been error below. >> now it is clear. >> in your view, this should have been granted to the georgia supreme court. >> i think it should have been granted to the state habeas courts. the cousin of the discretionary review. -- the cause of the discretionary review. -- this is reference an issue that is being litigated in the georgia courts in the 11th circuit. this precise issue. what issue was that? is it the issue of which court? the issue of what? >> the issue that is being

litigated is whether the supreme court review in cases like this is discretionary or not. >> in most cases, it is coming up from federal court. it is currently in the 11th circuit. pending have a case there in the georgia supreme court on that particular issue. i do believe there is an issue here in the case of jones ursus chatman where they have asked for a rehearing. with this be an appropriate -- with this be an appropriate case? it with clear up -- it would clear up --

do you know anything about the history of request for certification? some states have such a process. the state supreme court rejects the question. hold that this case is not discretionary, and that in these cases that are pending, the georgia supreme court has that it is discretionary. who wins? >> -- it ultimately a question for as or for the georgia supreme court? >> the georgia supreme court. can i go to the merits? you have a lot of new

information here from these files. it suggests that what the prosecutors were doing was looking at the african-american respected jurors as a group. they said that we do not want any of these people. here is the ones -- one that we want if we want to tip -- if we have to take one. isn't this a clear batson violation? >> i don't think it is. they do not undermine any of the findings that were given by the prosecutor. they can be interpreted in two ways. why thet know

highlights were there. we do not know. >> what is the reasonable explanation? trial, months prior to batson had just come out. it is new. the defense counsel filed a motion saying the strike of any black juror, we will file a batson challenge. and said thereon was racial disparity. of black perspective jurors on that list. the day of the trial, he refiled that. i would be more surprised if there was not some sort of highlighting. >> the argument you are making is that the reason he highlighted the black jurors in was because he was

preparing a defense in case of the batson challenge. if that is correct, was this argument made before the brief? it was not. if that had been his real aason, is an -- isn't it little surprising if he had never thought of it or tell anyone until you raised this argument? stateould say that is on habeas counsel. >> since you have two arguments, one is that he never thought to tell you until recently. years, it ister hard to believe that is his real reason. he hadond argument, that about 40 different reasons. and some of them could be valid. if my grandson tells me, i do not want to do my homework

tonight at 7:00 because i am just so tired. and besides, i promised my friend i would plate basketball. and there is a great program on television. and he has now given the five different reasons. what do i think of those reasons? >> -- one may be valid. >> they all may be valid. in this case, the important part -- the part -- he gave a 40is different reasons and many of them are self-contradictory. that is why i used my grandchild's analogy. --answer to my grandchild is you are too tired to do your homework. any reasonable person looking at this would say that his reason

was to discriminate based on race. >> because you have to look at that time period's that this was done. this was done not a year after batson came out. transcript,he people were saying that they did not know where batson was going. -- prosecutor >> it is wrong. to having -- like >> that seems to me to undercut the argument. mistaken a role for batson. >> i think that is why there was a laundry list. he was saying every reason he

had. regarding mr. lundy's note, the investigator that said if we have to choose a black dirt, she may be the best one. black juror, she may be the best one. we know it came from a das office. think that was a ranking of jurors. they did scored jurors throughout. >> there were five african-american jurors. one of them was garrett. if we have to have one, let it garrett.let it be whohe only three people

took the investigation on batson was the two prosecutors on the case. it has to be one of the two prosecutors. if that is not mr. lanier's thought process of this definite no list. i don't think this gets you to clear error in striking. >> it seems a false statement. one of the reasons that was given for garrett being struck was that her cousin was arrested. the prosecutor does not know that at the time. he does not know until after. how could it possibly be a reason at the time?

>> the record does not bear that out. the highlighted notes that the petitioner wants to say was used for the strikes. in those notes, angela is written out next to garrett's name. angela garrett is the cousin. --dn't the court say except he did not know at the time of the trial. he just knew that she was not wanted. facte court credited the that mr. lundy had advised trial counsel that angela garrett

should be struck. was his explanation as to why the prosecutor did not know. credited thatourt as one of the strikes. mr. lundy did not want her. she never credited or said that he knew about the arrest. mr. lanier testified twice that he was aware -- >> but, the prosecutor did not. mr. lanier, the prosecutor ,estified and said that he knew mr. lundy told me that. testified,e also that it has come to our attention since the trial of this case that angela ehret was arrested. garrett was arrested.

>> i cannot explain that part of the transcript. unless that means -- since that time that she was dismissed from her job. giving a reason for dismissing her that she was close to the age of the defendant. when mr. lanier initially explained his strikes, he did state her age. it was 34. throughout the overall thing, we do not want younger jurors. even though it may not be the --t articulate framing of it

the age was not a make or break factor. headstart with younger children was a make or break factor. , in a lott you agree you will have, supportive justifications which they could support a valid directory strike. the question for a court is -- did they support this valid directory strike? what was the prosecutor thinking? it does not really matter that there might have been if a bunch of valid reasons out there, if it was clear that the prosecutor was thinking about race very you agree with that? >> i think his intent was to strike based on race. mean it --does not

the question of whether someone or other might have been properly struck right a prosecutor is not really the question. totalestion is on the amount of evidence before as including all of these prosecutors notes, what was going on with respect to each of these peremptory strikes. and then coming you have to deal with -- they could have been this or that but you have to deal with all of this information that what it really was was that they wanted to get the black people off of the jury. thatat the notes show is -- the reasons that they struck them. there is no derogatory comments in those notes. >> where there are other plausible reasons -- surely, it

is the judge that here's the testimony who is best april to judge whether asserted reasons are phony or not. >> i don't believe -- >> it is harder for us to do it on a cold record. not in the case where all of the evidence of intentional discrimination was not before the judge at the time. is cleart think there error here on these notes of racial determination. the strikes were sound. you would not want mr. hood on the jury regardless of his race. it may well have been because we were in 1980 seven and you are putting out everything you can. why were the notes not turned over earlier? up in thebrought

motion for a new trial in november. the prosecutor said -- i will give my notes to the court if my defense counsel will do the same thing. the defense counsel chose not to do so. -- when we got to stay proceedings, there was a records request and they were immediately turned over. how do we deal with the anyure to ask ms. garrett questions about the issues that troubled. for example, her cousins arrest. there is an assumption that she has a relationship with this cousin. hasve cousins that i know been arrested but i do not know where they are in jail. he did not ask any questions.

doesn't that show pretext? i am not going to inquire because she may get off of the hook because of that. times --k a number of as to a number of issues, i think when you are asking questions, you do not necessarily care what the answer is. hood, if heto mr. had said yes, i have a son that has been arrested, it does not bother me a bit that you prosecuted my some. >> stealing hubcaps is decidedly different than murdering people were attacking them the way this case was about. i can imagine a father saying that it was stealing hubcaps and he should have been punished. >> he may well have. -- it was a risk the

prosecutor did not have to take. mr. hood could have said that. that mind, i am thinking he will get back there and think -- i don't know about him. >> i went to ask you a different question. i would like you to respond to the question that justice alito initially asked. is there an independent state ground here? familiar with the record. i've read on page 192 of your -- and the first paragraph supports the view that you would like to hold that this is based upon race due to product which is a state matter. and then, there is a paragraph on page 195, where the judge says the reason that i reached that conclusion is because the notes and records submitted by petitioner failed to demonstrate

purposeful dissemination. on the basis of the race -- it sounds like that's in to me. he goes on to say that in addition there is no good reason given. now were them. concludes, accordingly, the court finds the renewed batson claim is without merit. if i've read just that paragraph, i would think the reason that the judge found in your favor is he decided that the batson claim in your favor. he did not have to. he could have gone on some other ground but that was the ground he went on. at worst, why is it ambiguous? not --s, why do we aren't we required to assume that the judge went on the federal ground. that is both judge alito's question and it is the hardest

point for you to overcome and i want to your your response. >> i agree that it is unclear. >> that is the end of it. >> it is unclear. one other issue -- >> what do you think is georgia res judicata law? it goes out the window. >> the court gets to look at the issue and go beyond. case, once you have new facts and new evidence, the --rt finds that it can renew review the evidence anew, you are beyond that bar. >> i don't understand what you have just said. say it again. the issue hasf been decided on direct appeal ,nd you cannot go back to it

when you have new evidence and it is strong that the court feels like it has to go, it has to look at that evidence. in this case it did. you are beyond the race due to come -- the res judicata bar. >> that is how the decision is framed. claims that are not reviewable. it lists many claims. other claimsists that are procedurally defaulted and then this is in a separate section, and it is in a section with the other claims. that there are merits determinations made about and the board is very clear. first sentence, the court finds the prosecution did not violate batson versus kentucky. the ascends, on the merits petitioner loses. as much as i would like it to

be an adequate state law ground -- the preliminary matter, this court notes that as cited by the respondent, the following claims are not reviewable based on the doctrine of res judicata. the first one it lists is the batson claim. does that suggest that maybe the court had two reasons? if anything, it is an alternate ruling. the georgia supreme court has said that georgia law allows claims to be revisited on habeas when new facts are presented. it essentially is a different claim.

that is the law of georgia. >> thank you counsel. mr. ray, you have two coup minutes remaining. quickly, let me say with regard to what justice alito quoted, that it has just come to our attention that ms. garrett's cousin was arrested, that was on may the first. that was after the verdict had been returned in this case. secondly, if you look at the joint appendix on page 56, where they get the reasons for striking ms. eric, 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. there is no mention of that at all. and then six months later, there is a motion for a new trial. the prosecution is adding new

reasons it did not give at the batson hearing. they are think she is a social worker. she was not. they set her cousin was arrested. they did not know that at the time they structured the jury. they said she is low income. you cannot add reasons on into perpetuity. the reasons are the reasons -- they have to stand or fall on the reason. i want to make one quick point on that because there is not much time. with regard to ms. garrett and martha duncan who were both teachers aides. they were at schools in the same neighborhood. ms. duncan had kindergarten atdents that ms. garrett had her program. , they also said -- -- herduncan lived

school was 250 yards away and she lived a half-mile from the school. both of them answered that they were not familiar with the area where the victim lived or it some more questions after those answers would have provided a difference. is treated. garrett as a liar and his duncan is excepted and serves as a juror in this case. there are other examples. with mr. hood particularly. about his child that was arrested. he went off to the navy and searches country honorably and came back. >> >> c-span fans "landmark cases,"

a guide to the landmark cases series which explores 12 historic supreme court decisions , including mowbray versus madison, round versus the board of education, miranda versus arizona, and roe versus wade. features introductions, background, highlights, in the impact of each case. "landmark cases" is available for $8.95 plus shipping. get your copy today at c-span.org/landmarkcases. >> on the next "washington journal," two former indiana representatives talk about 2016. an article in "politico," about

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>> next, a panel on isis foreign fighter recruitment in international efforts to counter violent extremism. the brookings institution hosted this 90 minute event. >> all right, everyone. welcome. i direct the project on u.s. relations with the islamic world. today we are here to talk about countering violent extremism through early interventions programs. we are doing this in partnership with the partnership on extremism in the institute for

strategic dialogue. is the director of programs on extremism at george washington university. we have a senior fellow at the institute for strategic dialogue. to my left, the deputy director of life after hate. to her left, a fellow at the program on extremism and founder and director of the institute on radicalization and de-radicalization that he's. -- de-radicalization studies. the discussion has been going along for several years now. you, it iss vague to also very vague inside the u.s. government. no one is quite sure what this thing means. i remember when i was working at the state department, i asked another agency to give me a list

of everything that had been justified to the congress as countering violent extremism across all ages into the u.s. government. pretty amazing. everything from building forward operating bases in afghanistan to english-language programs for young mothers. essentially it became away for the government to protect their budgets and their programs. in an effort to become much more focused, we are here today to talk about one slice of this that is often neglected, but i think is the most valuable in the effort to stop or counter recruitment for terrorist organizations, and that is early intervention. i wanted to begin our program tell by asking daniel to us what early interventions programs are, how they differ

from other programs, say de-radicalization for foreign fighters. then we will get to a more wide-ranging discussion. >> thank you for the introduction. i am excited to be here. early intervention as part of countering violent extremism is an interesting term. usually when we look at western european countries or other states and their counterterrorism policies, we see that there are three types of tools that usually use. the first what is prevention. usually, anything that is related to education, civil society, anything that tries to prevent people from ending up in radical groups can be seen as a tool. the second level is repression, containing an existing radical threat, law enforcement, anything related to courts, sting operations. then we see the third level, which is called intervention.

early intervention would mean that we actually have someone who is in the process, in the early process, of potentially violent radicalization, but has some connection to it, to a radical group, to radical ideology, is on a path that is considered dangerous. tools, wherethose d radicalization programs, counseling programs, are part o f. early intervention programs are tools usually focus on the so cial environment of those persons who are about to be, violent radical. we know from terrorism studies that there is a phenomenon called leakage, where many persons leak some kind of information, sign, directly or indirectly to their friends or families are colleagues are employers, anyone around them. ons are usually the

first ones to notice a change, the potential threat. in most cases, these so-called out topers do not reach authorities, do not reach out to the police or anyone else, because they feel a strong sense of loyalty and obligation to their runs and family members. they fear what might happen to them. the fear that maybe they are making matters worse. maybe they are the ones responsible for their son or daughter being put into jail for 20 years. we need to figure out a way to give these families, friends, gatekeepers, a neutral third it, theyt can address can turn to for assessment or advice, but also for some sort of intermediary between social services and health services, to give them an understanding, an

assessment of why this is happening in their family. these early intervention tools, those that focus on friends and family, colleagues, give them the tools as early as possible to reach out and ask for help. later tools would be hard-core d radicalization programs, or those who are already in prison. those programs are much more specialized focus on an individual level. early intervention tools are more the effects of social tools . family counseling, specialized training for teachers, for police officers, for community leaders. >> daniel, to my mind, these kind of programs make a lot of because it is a small population that you are working with. they have already demonstrated they are interested in radical ideas, but generally they have

not committed any violent crimes yet. so you are working very close to the problem, and the game is to try and make sure that these folks don't go over the line and commit a criminal act, particularly of violent criminal act. but these programs have been -- they haven't caught on in other places, particularly here in the united states. when we talk about encountering violent extremism, it runs the gamut. but this is not part of it. working in this space is usually, for my experience, often left to law enforcement, people that are already entertaining radical ideas, or security risks. then have these early interventions. give us a scene from europe. how does that compare with the united states ? >> it is very different. and thank you for asking us here.

it is good to have this conversation in a way that we can partner. comes toience that europe -- that is why we decided to bring people from the european asked areas -- the european experience. we have had 10 or 15 years of this kind of experience. everybody makes whatever they want out of it. a lot of the attention in the u.s. has been vocus on -- has been focused on the large target, the counter narratives, the engagement to communities, which is also extremely important. europeans have done that kind of work, with the never-ending dilemma of whether integration is linked to radicalization. there is some social engineering havehe europeans thas spent a lot of money on -- it is difficult to prove a negative, that what you are doing stops people from radicalizing.

what we have seen is that the europeans have focused more on the one-on-one intervention. out,e u.s., as you pointed that has not been the case. we have seen a lot of messaging, whether it is the foreign state department, or on the engagement of communities, which is what we have been on the domestic front. >> can you explain for the audience what we mean by engagement with communities, what that ends up looking like? >> this is what dhs and the buildingf -- trusting dialogues and relationships with communities. right, wesolutely have to specify that this is one of the points of contention, one of the most debated points, that it is unfortunately limited to the muslim community. it is limited to targeting what

is traditionally known as al qaeda, isis-inspired radicalization. there is a never-ending debate on whether it is correct and whether we should focus on others. i think most people would agree are 99% of the resources dedicated to religious inspired extremism. in the u.s., we have been limited to engagement. we are starting to see signs that we are working on this one-on-one intervention. tailoredof -- interventions, which are quite cost-effective. it is much easier to prove the effectiveness. not very easy, but easier than larger programs. they can be very effective. the european experience tells us that.

it depends on what degree of involvement the government and a variety of other factors. in the u.s., we are starting now to talk about utilizing these tools. traditionally we have seen a law-enforcement-based approach, the traditional use of sound, law enforcement techniques. if the european approach on individuals who are clearly radicalized but operating in a criminal space, the european approach is to push people into a pretty radicalization stage. -- into a pre-radicalization stage. have the process go further in a controlled setting, the fbi controlling everything and arresting the individual. there are a variety of factors that contribute to that, but there is a growing realization in the state buthat the tech tatactic cannot be used all

the time. it has a very high success rate in court but it cannot always be used. we are seeing more and more cases of minors being attracted to isis ideology. there are legal and ethical regions with minors. the numbers are also very high. we heard the fbi talk about 900 investigations opened nationwide on individuals linked to syria, mostly to isis. that is a very big number. it is difficult to tackle all these cases with a traditional law enforcement tool. that is something that the dhs understands that is trying to explore alternative tools. just this morning, we had meetings with the department of justice about a particular working group trying to find alternatives to prosecution, because we understand we cannot

arrest our way out of this problem. was usefulul -- it to introduce the tactics that are used in europe. obviously, not all the tactics have been used in europe can be used, transported and adopted here. that, are a lot of ideas with the proper caveats, could be used. >> daniel, i want to come back to you to get a sense of what's going on here. i know in terms of early intervention programs it is uneven across the continent. some countries embracing this, some not. which country would you hold up as the exemplar, including early intervention programs, and why? >> that's impossible to answer, because most western

european countries -- you can have a country like germany, where they have almost 20 years of experience in practical work against the far right, and they have at least at last count, 12 to 15 specialized de-radicalization programs, and they all have very different approaches. you can have a country like denmark, with the very state centralizedice run, d radicalization program, where everything runs through the police. you can have countries like sweden, where they have one or two strong ngos doing that work in cooperation with the u.k. where or the they have a strong civil society component, or france with intelligence led -- >> it depends on the political culture. >> absolutely. whether or not ideology should be part of the program. they talk about dismantling a radical ideology -- it is not

that popular in denmark or the u.k., very strong in germany. i would say that de-radicalization can be ranked are classified according to three criteria. first, the ideology. technically spoken, do we have the disengagement program, or just a physical role change? getting someone out to do or to stop committing criminal acts, versus the radicalization, -- v ersus de-radicalization. second criterion, is it state or nonstate? is it organized by a government body, like the police or social services? or is it nongovernmental? thirdly, is it active? is it actively reaching out to the target group in prison or just knocking on the door? some programs do that in germany. they have a list of were neo-nazis live, and a knock on

the door and ask if they want to leave. they are waiting to be contacted by those who want to get out. veryrope, we have seen wide, broad array of different programs. i would argue that the most promising aspect -- usually, some are being done more effective by government bodies, and the other way around, more effectively done by civil societies. we have seen several attempts in germany and sweden in the u.k. where the government bodies start at the core, like hotline, incorporating civil society organizations with long-term counseling. in a specified framework like ideology, how long should it take. i would say germany and denmark are definitely on the forefront of that. >> thank you very much.

i want to try and give ebola sense of how one of these programs really works in practice. you work antonin asian that focuses on the are right extremism. i would like for you to talk about how early intervention works with somebody who hasn't yet broken the law. but i also wonder if you could say a few thoughts about the role of ideology. not necessarily in terms of -- when you are doing these kinds of interventions, do you really need to deal with the ideology, or do you focus on other things first? >> well, it's been a little slow going. we don't have instability programs are now. but with what we've done, we are out there, doing interventions, doing counter messaging. for us personally, we have not found that it is successful to

immediately go in and aggressively attack ideology. what we do is share very real, raw human experience and connect on a different level. i think it is important to mention that we really have to be aware of what propels people into these. what is broken? what is the underlying issue that made them feel they were missing out on something, that they needed to belong? that could be trauma. they could be abuse. it could be a variety of factors that really push people into it. when we go in and we talk to an andividual, we have understanding of what drove them there. that kind of gives us the foundation and the base that we work from. we draw on our own experience. founded andate was

is completely run by former violent extremists. so instead of judging the individual, instead of attacking the ideology had on, we ask them personal questions. what has affected them in their lives? what is important to them? what are they interested in? what are their goals? from there, we fall back on our own personally. in share that -- on our own personal experiences and share that they are not the only one, that it is absolutely possible to disengage and de-radicalized, but they are not concerned with being de-radicalized necessarily. the referrals that we get come from a variety of places, whether it is apparent worried about the child getting involved, some government referrals, human rights, and people who contact us on their own and say, listen, i am

thinking about getting involved in this, i have a certain belief about a certain thing, or a have this experience that is really pushing me in this direction. but i don't know. i'm not sure. can you talk to me about why i shouldn't? what are the consequences? things like that. it has been in that way that we have been able to go out and start having successful interventions. these are literally people who, by their own account, are on the verge of committing acts of violence, and are prevented from doing so. >> are you doing any of these interventions purely online, or is there always a real-world component? >> both. there have been cases where we have traveled in and done face-to-face sit down interventions. we contacted a lot via social

media, via our website. we definitely don't have the funds to travel the country and do personal face-to-face every time, but it's part of what we offer, one-on-one mentoring, whether it is phone calls, text messages, social media. we get these individuals involved. thatve a private group consists of almost 30 former violent extremists, and these individuals, some of them have been disengaged for decades. some have just now come out, literally within days or weeks. we are using that network as a means of support, as a means of talking through issues. some of the issues that propelled them in the first place. of the supportd that daniel talked about,

whether it is a family or community that has supported, that is not there to say you were horrible because you believe these things. let me share my experience and how i got beyond that, finding that common ground. >> have you ever encountered anyone who was radicalized purely by what they had read? normal in every way, high functioning, but just consumed a lot of hate literature? there is always something else underlying it? >> every case is different. some of the information we are finding out is that not every person suffered trauma or abuse or has mental health some people came from perfectly stable, loving homes and for some reason, felt the need to belong better way.

a small percentage where raised in an extremist environment. they were taught violence. they are individuals who were raised in a prejudiced household or they were taught racism as children. some will grow up and rebel against that and others will grow up looking for a place and say, this is what i was taught. there are individuals who will have maybe one experience that, punm that point on, upon intended, it will color their view of the world from that point on. and some will react to history. they will see something unfairly or that one group is represented more than another. we cannot classify across the board. it is case-by-case. >> i want