No court in kentucky could take the case because the fine was less than 20. These cases, much more recent, decided by the court in 1986 and this year, that they are putting together two rules you say we have established. To end the confusion, 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 just was denied, nothing was denied, we look back to the last reasoned decision. Those were both decisions of this court and that is what you are relying on. They are not mutually exclusive. This court can look back through to the last recent decision in making its decision in this case and i believe that is what it should do. At the same time, the courts opinion appears to us on the Quick Research we did on the weekend, was that rj reynolds issued tobsidy was the georgia Supreme Court. We listed it that way. When it was docketed here, it was listed that the lower court with the superior court. If the state Supreme Court wrote a short opinion and said we will not determine whether there was in fact the only issue we will determine is if there were was any arguable merit. You set the whole issue of whether it was a correct application is the issue we have to decide. I think in r. J. Reynolds, that was the courts law. Could i ask you another question about another preliminary issue before we get to the underlying question in the case. Pageuperior court said on 175 of the joint appendix that the issue of the batson violation was not reviewable based on the docket of res judicata. Pageter said, and this was 192 of the joint appendix, that it will review the batson claim,n that batson 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 . Argue thate does not and the reason for that is that thehe court said court what address step three of batson and said fosters batson claim was without merit. Is it a question of federal or state law as to whether or not the petitioner has shown a is thatficient to the state law question . Here, if it is a state law question, then what you have to argue . It, it isr to decide 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 eric on it merits on it that is a very strange application of res judicata to me. Factsr there were changed sufficient enough bring an issue that has already been litigated on indirect appeal. If it would produce a different results. If the facts are such that it would produce a different results. Does the court, in your was basically going to do step three of the batson claim. That is the ruling on the merits. The court said that thats claim is without merit. That seems like a ruling on the merit to me. Said, it after considering, these are the facts. The claim was without merit. That it wouldaid reach step three on the basis of the new evidence presented. They did it all over. That asyou must take what happens. Judicata. Ot apply res when the resolution of the 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 dont 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 why is that issue of federal law . Because the court decided that thats an issue to decide the underlying state law issue. I think it is pretty clear on this. I commended to the courts attention. It,e the state has raised 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 africanamericans}, they had rated them against each other in case it came down to having to select a black juror. The prosecutor said the themn you had informed 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. 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 might be ok. The District Attorney himself said that maryland gearing has the most potential of the blacks the black perspective jurors. 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. Here is no going back there is no back striking. They developed three strike list. One of those strike list was a list headed definite no. There are only six tours listed on the list of definite nose. The first five are africanamericans. The six is a jerk who made clear clear ror who made 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. Linear 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 africanamericans were who were struck were women. That that explanation has fallen out of the case. 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. The prosecutor struck three white jurors and then he struck the three black jurors. Women and thek three white women. Mr. Bright, mr. Linear answered yes when during the when hehe was act 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 ground check . Extensive background check . Race colorcoded list. 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. Linears clear that mr. 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. Did defensee trial, counsel, when he made his batson challenge, at trial, did he again say that this was part and parcel of the prosecutors pattern . 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 bad thing 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. I was surprised that we did not hear about the preparation the batshearing hearing until the abs. The prosecution of those did. It. Pposed seen a lawyer do it. He cut a bargain between the judge and the lawyer. The other side can see the notes. Untilnotes were guarded 2006 when we appear and then through a freedom of information or open records act. Said that we never authorized or relied on those notes. Prosecutorscall the to test the veracity of that assertion. 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. I do not have anything else to say beyond what i said at the batson hearing and the motion for a new trial. 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 nose nos list. They wanted miscarriage. 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 was excused for cause. There were five africanamericans at the start. Out that it turns know someone from the family so she was excused or cause. Said that had it not been for that extra strike, that miss garrett would have been strike. Why she would not be a good juror. She is impeded 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 of theid in terms 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. Some of these reasons applied to white jurors who had the same characteristics as the africanamericans who were struck. And lastly, they did not question the jurors. About the reasons for striking. Gave reasons for striking, one question would have cleared up some of these. Anyfailure to engage in meaningful discussion about the is evidence suggesting that the explanation is as sham and a pretext. I have found some circuit courts who have a rule, an which or a habeas corpus 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 . Suggest that they cannot possibly be because this court said in snyder versus the isisiana that when a strike 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 strike strikes motivated by race cannot be tolerated. This is a serious problem. In just in this case but other cases where people come to court with their cant reasons and read them off. That is what happened in this case. One of the reasons was given was taken verbatim out of a report a reported 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 turkey. We would suggest the fifth circuit. When you have you can always have the product if the prosecutor argues a laundry list of reasons for striking a black juror, then some are unreasonable and improbable, how should the coach approach this . 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 to give as many reasons as possible and hope they will be acceptable. Dont you think this is a casebycase thing . Suppose there is one reason, a killer reason, as this individual has numerous prior convictions. 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, couldnt the court say that there is one reason here that is clearly a justification for a peremptory strike. Evidencehave to have that the person was looking down at the floor. You look atys that all relative circumstances. And you would come to the conclusion that there is a valid reason. We have an arsenal of smoking guns in this case. 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. Isnt 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. Thats interns on the feasibility of the reasons, on the credibility thats in turns 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. 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 cousins 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 prosecutors 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 states highest court, the georgia Supreme Court, and it denies discretionary review, it is before this court. I dont think this is a discretionary review. Found it is not under georgia law. That opinion seems pretty grounded in the states 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. Im 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 africanamerican 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. Isnt this a clear batson violation . I dont 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 isnt 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 selfcontradictory. That is why i used my grandchilds 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 periods 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. Lundys 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 africanamerican 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. Laniers thought process of this definite no list. I dont 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 garretts name. Angela garrett is the cousin. Dnt 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 heres the testimony who is best april to judge whether asserted reasons are phony or not. I dont 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. Doesnt 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 dont 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. Ive 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 thats 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 ive 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 arent we required to assume that the judge went on the federal ground. That is both judge alitos 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 dont 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. Garretts 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 halfmile 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. Thank you counsel. Case is submitted. On the next washington journal, two former indiana representatives talk about campaign 2016. Issue one talks about his article in political magazine looking at the influence of one added 58 families on the political system. David mcintosh, president of the club for growth on conservatives and campaign 2016. Washington journal is live every morning at 7 00 p. M. Eastern on cspan and you can join the conversation with your calls and comments on facebook and twitter. 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