Jurors because of their race. Foster was convicted of killing a 79yearold white woman by an all white jury. Well hear argument first this morning in case 148349, foster versus chapman. Mr. Bright. Mr. Chief justice and may it please the court. The prosecutors in this case came to court on the day of jury selection determined to strike all the black prospective jurors. Maybe you could address first the question we raised on friday with respect to which court certiorari i should be directed to . Yes, your honor, we filed this originally certiori to the Supreme Court of georgia. Of course this court in sirius versus upton issued certiori in 2010 of the georgia Supreme Court in a similar situation. It appears to us from looking at this over the weekend that r. J. Reynolds Tobacco Company versus durham county, which the court has cited in 1986, the court said unless there was positive assurance that the decision was not a decision on the merits, then the writ went to the spate Supreme Court. And the georgia court, while it has rules and statutes and its own opinions that are not totally in harmony with one another, the rule, nonetheless, that a certificate of probable cause, which is what was denied in this case is to be granted if there is arguable merit to the case. Do you think that effects the scope of our review . Are we addressing arguable merit to the claim or adding on its own merits purchase i think what the court has done in all the cases is look through to the last decision, decision of habeas corpus court. In georgia rules an application is made for certificate of probable cause to the georgia Supreme Court and that is often denied summarily. It is denied summarily as it was in this case. I really dont understand that. You say we would be reversing the georgia Supreme Court not the habeas court, right, and all that the judge of the Supreme Court held is that there was no arguable basis. If we reverse that decision, tell the georgia Supreme Court, youre wrong, there is a arguable basis for accepting review, so we ought to remand to that court requiring them to accept review, it would seem to me. How can we reverse them on an issue they never considered . Well, thats what happened to r. J. Reynolds, a situation with an intermediate Supreme Court that ruled and North CarolinaSupreme Court denied review. The question was do you issue the writ to the intermediate Appellate Court or North CarolinaSupreme Court. This was decided. The justice writing for the court said, we want to give practitioners we want to end the confusion about this. And so it goes to the state Supreme Court. Theres no difference in our situation here. Youre saying in that case and other cases, in that situation we none the the less addressed reasoning of the intermediate court . You did in sirius versus upton case out of georgia in 2010. That was certiori Supreme Court of justice came up in our case. Is there an argument the petition for certiori could go to Supreme Court, a review could have been had, which sounds like georgia Supreme Court. On the other hand Justice Scalia said hadnt really directed their attention to the issue. Im not sure to me its an option to go to the georgia tractortrailer trial court or is that correct . Followed in brady versus North Carolina, 2015 case this year, in which once again there was intermediate Court Decision denied by North CarolinaSupreme Court. I can remember back to 1960, thompson versus louisville where certiori was to police court in louisville, kentucky. No court in kentucky could take the case because the fine was less than 20. I think these cases, much more recent, decided by court 19 w86f this year. Putting together two rules you say weve established. One is Justice Blackman said to end the confusion the petition should be addressed to the Supreme Court. And then you said we have cases lookthrough cases. If the Supreme Court has said denied, nothing more than denied, we look back to the last reasoned decision. Those are both decisions of this court and thats what youre relying on. Well, 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 thats what it should do. At the same time the courts opinions appear to us on the Quick Research we did on the weekend over this, that r. J. Reynolds and subsequently case say that certiori would issue to the georgia Supreme Court and we list thad way. When it was docketed, it was superior court of bucks county. What if the state Supreme Court wrote a very short opinion and said were not going to determine whether there was in fact the only issue were going to determine is whether there was any arguable merit to this, whole issue whether it was a correct application is an issue we have to decide . I think in r. J. Reynolds, i think thats law, yes. Could i ask a question about an underlying issue before we get to the case. The superior court said on page 175 of the joint appendix that the issue of the batson violation was not reviewable based on the doctrine of res judicata. It later said, 192 of joint appendix, it will review the batson claim as to whether petitioner showed any change in the facts sufficient to overcome the res judicata bar. If you put those two together, you could argue that the Supreme Court decided only a 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 . Well, the state doesnt argue that. I think the reason for that is because the court said the court is going to address step three of batson and said the claim was without merit. Is it a question of federal or state law as to whether or not petitioner has shown a change, in fact, sufficient to overcome res judicata bar, what Justice Scalia quoted. Is that a state law question . Thats a state law question. Here the court decided it. If its a state law question and they decided against you, what have you got to argue . I thought you would say a federal question. In order to decide it, its exactly like versus oklahoma where the court the Oklahoma Court had to decide the federal question in order to decide whether it had jurisdiction othover the issue. The court held in eight the federal court had to decide the issue. It did, decided the issue, found the batson claim had no merit. It is decided federally issue explain to me why deciding the federal issue was essential toist deciding the state res judicata issue. Because it framed the question as being that it would look excuse me. They would look atbatson versus kentucky, if there was merit the court would grant the writ on it. On the other hand if they found there was not merit. You think they were saying whether res judicata or not is whether the claim has any merit . I think exactly. Thats a very strange application of res judicata, seems to me. I thought it was whether there were changed facts sufficient enough. Georgia law is that you can bring an issue litigated already before direct appeal. Right. In habeas. Right, even if it would, you know, produce a different result, right . If the facts are such it would produce a different result. Did the court in your judgment do denuovo review, step three of the batson thats exactly what the court said. Thats your ruling on the merits . I think the court said the batson claim is without merit. That seems like a ruling on the merits to me. I think it said after after considering these other facts. We think there were some legal errors made there. Yes, after considering these facts, the court said that the claim was without merit. The court said that it would again on the basis of new evidence presented so they did it all over, and i guess thats you must take that as what happened. They did not apply res judicata. 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 client. This court has jurisdiction page 475. I dont want to belabor the point too much. Are you arguing georgia race judd cat, a is this. That is sufficient to allow them to wipe out and get to the merits of the claim. Is that your argument . Your understanding of res judicata law . Has to be sufficient enough the court did what it did in this case and rule on the issue. Thats what it did here. This is not a matter of adding one more leaf to the basket. We really want you to get to the basket but why is that in conjunction with Justice Scalias question, why is that an issue of federal law . Because the court decided thats an issue to decide the underlying state issue. I think pretty clear pt since the court raised this in opposition to certificate or brief, its not briefed before this court. I think thats the deciding case on this. Thanks, council. I think we have your argument . If i could just say what happened here, the prosecutors identified the affirms africanamericans by race, rated them against each other in case it came down to selecting a black juror. The reason concentrating on black jurors is that you had informed them you would present a batson challenge, and therefore it was necessary for them to see if there was race neutral for qualifying. To answer that, justice ginsburg, what the lawyers did, these lawyers practiced a long time in rome, georgia. They said the prosecutor always sfrix all the blacks on the juror. Thats been the practice. We think they will strike all the blacks in our case. Supreme court decided batson versus kentucky and we asked the court not to let that happen in this case. If the prosecutors wanted to avoid a batson challenge, they could have not discriminated. But secondly, with regard to information thats collected here, it doesnt seem like its information just to exercise strikes when they say it comes down to having to take an africanamerican, miss hart, or miss garrett might be okay. And the District Attorney himself said Marilyn Garrett has the most potential of the black perspective jo perspective jurors. In other words blacks were taken out and dealt with separate. Over the weekend, a jurys questioning ended on friday. A judge said, all right, over the weekend, you have a chance to decide who youre going to strike. They knew exactly who they were going to strike because the jurors are listed in order. The state goes first. If the state accepts, that juror is on. Theres no going back. Theres no striking people here and there. They develop three strike lists. One of those strike lists was a list headed definite no. These are the people absolutely not going to be on this jury. Theres om six listed on the list of definite nos. The first five were africanamericans. The sixth made it clear she could not impose Death Penalty under any circumstances. The judge moved to strike her for cause. The judge probably erred granting that. She was behind black jurors in terms of striking. Counsel, at the time mr. Lanier said they werent striking the jurors because of race, they were striking them because they were women. I guess three out of the four africanamerican africanamericans who were struck were women. That explanation has fallen out of the case. How does that affect the analysis. He did accept women as well. Bear with me just a moment. The court had not held batson. Did not say it applied to women but could be used as a pretech, women, for striking on the basis of race. In this case, the prosecutor struck three white jurors and then three black jurors. Three white women and flee black women. Mr. Bright, mr. Lanier answered question when a jury in the trial, when he was asked whether he had done oh, no, on the motion for new trial hearing, whether he had done the same extensive background check on all the jurors, white and black. Did you find any evidence of that extensive black background . The the only what thats talking about, and the investigator said this in his deposition was the color, race coded color list, those first four lists you have in joint appendix, in which blacks are marked with a b and highlighted in green with a marker up at the corner saying green designates black. So your understanding is that he had only done an extensive search on the blacks. It was clear mr. Lundy had prepared a list of notes in which you talk about just the black jurors in the list. The state concedes in the brief that was focus was on the black joos jooshs. During the trial did defense counsel when he made batson challenge, in the in the paper but the trial, did he say this was part and parcel of the prosecutors pattern . He didnt say that i point this interesting thing out. When they discuss the batson motion before trial, there was never a suggestion there wouldnt be a batson hearing. Everyone knew what happened, all the blacks would be struck and then they would have a hearing. They put it in writing and relied on that. I was just surprised we didnt hear about this preparation for batson hearing until habeas. They didnt move for the notes and prosecution opposed that. They were very strict not giving up the notes. Then prosecutor testified on motion for new trial he did something ive never seen a lawyer did, cut a bargain saying i will testify but only if i dont have to show them my notes. Basic rules of evidence, you testify and rely on notes, the other side can see the notes. But here these notes were guarded until 2006 when we obtained them through a freedom of information. Said we never wrote, saw, authorized or relied on those notes. And you didnt call the prosecutor to test the veracity of that assertion. All they talked about was color highlighted notes. Joint appendix, 168, all they said was we didnt highlight it in green and we didnt tell anybody else to highlight it in green. Mr. Lanier says i dont have anything else to say beyond what i said at the batson hearing and motion for new trial. Mr. Pullon said, only thing he said, i didnt use those green highlighted lists in choosing the jury. Of course thats just the first few pages. Whats damming about this is not so much that but the definite no list, misrepresentation to the tractortrailer they wanted miss garrett, thats what they told the trial court and the relied on that showing the the batson motion. She was on the no list, each of the strike list, miss garrett was never in the running to be on this jury but they represented to the court that because of another africanamerican Shirley Powell was excused for cause, there were five when they got ready to instruct the jury but one said, turns out i know somebody in the family. She was excused for cause. The prosecutor implied clearly had it not been for that, that extra strike, miss garrett would have fit. They argued both ways, they wanted her and didnt want her. They give 11 reasons for why miss garrett would not be a good juror. Imp dent, does not respect the court. If you believed all those things she said, they would not want her. Those things are not really valid in terms of the reasons, because the reasons they gave here, many were demonstrably false, not supported by the evidence, including reasons given about miss garrett, inconsistent, completely incredible, applied to white jurors, some of these reasons applied to white jurors who had same characteristics as africanamericans who were struck. Lastly, whats so important, they didnt question the jurors about the reasons for striking. They gave reasons for striking. One question would have cleared up some of these. Miller l says the failure to engage in any meaningful voir dire about what your reason is is evidence suggesting the explanation is a sham and a pretext. Mr. Bright, i have found some circuit courts who have a rule on appeal or on habeas, which is if they can find one legitimate reason for striking a juror, thats enough to defeat a batson challenge. Do you believe thats an appropriate rule . Are you suggesting a different approach to the question . Well, it cant i would suggest it cant possibly be, because this court said, and Justice Alitos opinion, snyder versus louisiana, where shown to be motivated in substantial part by race, that it could not be sustained. Excuse me. I would suggest to you it shouldnt even really say substantial, because this court as it said so many times in unceasing efforts to end race discrimination in the criminal courts, then a strike motivated by race cannot be tolerable. Of course its pointed out here, this is a serious problem, not just in this case but other cases where people come to court with canned reasons and read them off. That happened in this case. One of the reasons given was just taken verbatim two of the reasons given were taken verbatim out of a recorded case. So you dont have the reason for the lawyer in this case. My personal preference. It wasnt his personal preference. It was the personal preference of some u. S. Attorney in mississippi who gave that reason and upheld by appeal in the fifth circuit. We would suggest the standard is at least what snyder said. When you have both you can always have, as miller l. Recognized. In response, if prosecutor has a laundry list of reasons for striking black jurors, some are reasonable and some are implausible, how should the court approach batson analysis. Looks at which is pretextural, the fact there is a laundry list in and of itself that the court should scrutinize the reasons carefully, be suspect of the reasons. Otherwise what the court is going to do encourage prosecutors or any party in the case, batson applies to everyone, encourage a party to give as many reasons as possible and hope they are acceptable. Dont you think this is a case by case thing . Suppose theres one reason thats a ki