Legal Case Summary

We will hear argument first this morning in case 148349, Foster versus Chapman. Mr. Bright. Mr. Chief Justice, in May, please the Court, the prosecutors in this case came to court on the morning of jury selection to determine to strike all the black perspective jurors. Mr. Bright, maybe you could address first the question we raised on Friday with respect to which court, the searcher area I should be directed to. Yes, Your Honor. We filed this petition originally, searcher area to the Supreme Court of Georgia. And of course, this court in Sears versus Upton had issued searcher area, this is in 2010 to the Supreme Court of George in a similar situation. It appears to us from looking at this over the weekend that RJ Reynolds, tobacco company versus Durham County, which the Court decided in 1986, the Court said that unless there was positive assurance that the decision was not a ruling on the merits, then the writ went to the State Supreme Court. And the Georgia Court, while it has rules and statutes and its own opinions that are not totally in harmony with one another, the rule nonetheless is that a certificate of problem pause, which is what was denied in this case, is to be granted if there is arguable merit to the case. Do you think that affects the scope of our review? In other words, are we addressing just whether there is arguable merit to the claim or we addressing the claim on its own merits? I think what this Court has done in all these cases is apply Yields versus Nunamek, or to look through to the last reasoned decision. And that would be the decision of the habeas corpus court. In Georgia, typically the habeas court rules, an application is made for certificate of problem cause to the Georgia Supreme Court, and that is often denied summarily. It is denied summarily, as it was in this case. You really don't understand that. You say we would be reversing the Georgia Supreme Court, not the habeas court, right? And all that the Georgia Supreme Court held is that there is that there was no arguable basis for its accepting review. So if we reverse that decision, we tell the Georgia Supreme Court, you're wrong. There is an arguable basis for your 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, that's what happened in Archea Reynolds. I mean, there you had almost identical situation where you had an intermediate appellate court that had ruled, and then you had the North Carolina Supreme Court denied review. And the question was, do you issue the writ to the intermediate appellate court or to the North Carolina Supreme Court? And this court decided, and Justice Blackwell 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. There is no difference in our situation here in the situation that Archea Reynolds was saying. But you're saying in that case or in other cases, and if so, which other cases, that in that situation we nonetheless addressed the reasoning of the intermediate court, is that what you're saying? You did in Sirius V. Up in case out of Georgia, 5.61 U.S. Fort 945 in 2010, that was Sertiorari to the Supreme Court of Georgia, but it came up in exactly the same posture of Archea. Is there an argument that the petition for Sertiorari could go to the trial court? I mean, our statute says it goes to the IAS Court in which review could have been had, I think, as the State Treasury, which sounds like the Georgia Supreme Court

. On the other hand, as Justice Scalia said that he haven't really directed their attention to the issues before us. It's not sure to me that it's an option to go to the, to the Georgia trial court. Or is that incorrect? Well, what this Court has said, both in the Archea Reynolds case, and then that was followed in Grady versus North Carolina last 2015 case this year, in which once again there was an intermediate court decision denied by the North Carolina Supreme Court. I mean, I can't remember all the way back to 1960. There was Thompson versus Louisville, where Sertiorari was to the police court in Louisville Kentucky, because no court in Kentucky could take the case because the fine was less than $20. But I think these cases, much more recent, decided by the Court 1986 in this year. You're putting together two rules that you say we've established. One is Justice Blackman said to end the conclusion 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 denied nothing more than denied, we look back to the last reasoned decision. Those are both decisions of this Court and that's what you're relying on. Well, and they're not mutually exclusive. This Court can look back through to the last reasoned decision in making its decision in this case, and I believe that's what it should do. But at the same time, the Court's opinions appear to us on the quick research we did over the weekend on this, that RJ Reynolds and the subsequent case say that Sertiorari would issue to the George Supreme Court. And we listed it that way, and then when the case was docketed here, it was listed that the lower court was the Superior Court about its count. Now, what if the State Supreme Court wrote a very short opinion and said, we're not going to determine whether there was, in fact, the only issue we're going to determine is whether there's any arguable merit to this. And then you say that the whole issue of whether it was a correct application of batsons is the issue that we have to decide. I think in RJ Reynolds, I think that's the Scorched Law. Yes. Could I ask you another question about another preliminary issue before you get to the underlying question in the case. The Superior Court said on page 175 of the Joint Appendix that the issue of the batson violation was not reviewable based on the doctrine of race judicata. And then it later said, and this is 192 of the Joint Appendix, that it will review the batson claim as to whether petitioner has shown any change in the facts efficient to overcome the race judicata bar. Now, if you put those two together, you could argue that the Superior Court decided only a question of State law, namely whether the situation here was such that there could be review of the batson claim. What is your response to that? Well, the State doesn't argue that. And I think the reason for that is because the Court said the Court is going to dress step three of batson, and it said Fosters batson claim is without merit. Well, is it a question of Federal or State law as to whether or not the petitioner has shown a change in fact sufficient to overcome the race judicata bar? The page 192, the language that Justice Alito quoted, is that a State law question? Or a State law question? And here the Court decided it, but I would point out Justice. Well, if it's a State law question, they resolve it against you. What do you, then what do you have to argue? I don't know. I think it's a Federal question. No, in order to decide it, this is exactly like eight versus Oklahoma, where the Court, the Oklahoma Court had to decide the Federal question in order to decide whether it had jurisdiction over the issue. And this Court held an ache that where the Court has to decide the Federal issue, and it did in this case, it clearly decided the Federal issue and found that the batson claim had no merit. So it has decided the Federal issue, and there's no contest about that in the explain

. Explain to me why deciding the Federal issue was essential to its deciding the State residue to cut an issue. Because it framed the question as being that it would look at the ache versus, excuse me, they would look at the batson versus Kentucky claim, and that if there was merit to that claim, then the Court would grant the red on it. On the other hand, if it found that there was not merit on it, then you think it was saying whether there's a residue to cut it or not depends on whether a new claim has any merit? I think it's a very strange application of residue to cut it seems to me. Well, I thought it was whether there were changed facts sufficient enough. Well, the Georgia Law is that you can bring an issue that's been litigated already before direct appeal in habeas if there are. Even if it would, you know, produce a different result, right? Right. If the facts are such that it would produce a different result. Right. But did the Court in your judgment do the novel review? I didn't say that it did, basically, it was going to do step three of the batson chart. Yes, that's exactly what the Court said. Yes. And so that's a ruling on the merits. I think it's, I think the Court said the batson claim is without merit. That seems like a ruling on the merits to me. Well, I think it said after to do, after redoing. After considering these other facts. And we think there were some legal errors made there, but yes, after considering these facts, the Court said that the claim was without merit. The Court said that it would reach step three again on the basis of the new evidence presented. And so they did it all over. And I guess that's, we must take that as what happened. They did not apply a raise due to kind of bar. No. I mean, in eighth, this Court said, when the resolution of the State procedural law question depends upon a federal constitutional ruling, the State law prong is not independent of the federal claim. And this Court has jurisdiction. That's on page 75 of 475 United States. Well, I don't want to be labor of the point too much, but you are arguing that Georgia raised you to kind of law is this. If someone comes up with any new fact, the, the, the smooth, the thinnest new fact, that is sufficient to wipe out the raised due to kind of bar and allow the Court to get to the merits of the claim. Is that your argument? That's your understanding of Georgia raised due to kind of law. And some matters to me are saying is the evidence has to be sufficient enough that the Court does what it did in this case and rule on the merits of the issue. And that's what happened here. This was not a matter of just adding one more leaf to the basket. And we really want you to get to the merits, but why is that a conjunction with the Justice Scalia question? Why is that issue of federal law? Well, because the Court decided that that's an issue to decide the underlying state law issue

. And I think Aik is pretty clear on this. And I commend it to the Court's attention. We didn't, it wouldn't, since the State didn't raise this, either in their opposition to serve or in their brief, it's not brief before this Court. But I think that's the deciding case on this. Thanks, Kahn. So I think we have your argument on the point. Thank you. Okay. Thank you very much if I could just say what happened here was that the prosecutors had identified the African-Americans by race. They had raided them against each other. In case it came down to having to select a black juror. The prosecutor said the reason for concentrating on the black jurors was that you had informed them you would present a baton challenge. And therefore it was necessary for them to see if there was a race neutral ground for disqualifying. Two answers to that, Justice Ginsburg. I mean, what the lawyers did here. There's these lawyers that practice here for a long time in Rome, Georgia. They said the prosecutor always strikes all the blacks in the jury. That's been the historic practice. We think they're going to strike all the blacks in the jury in our case. But last year the Supreme Court of the United States decided bats and verses can tuck he and we asked the court not to let that happen in this case. Now, of course, if the prosecutors wanted to avoid a baton challenge, they could have not discriminated. That would have been the first thing to do. But secondly, with regard to the information that's collected here, it doesn't seem like it's information just to exercise strikes when they say if it comes down to having to take in African American, Ms. Harge or in another place, Ms. Garrett might be okay. And the district attorney himself said, Maryland Garrett has the most potential of the black prospective jurors. In other words, the blacks were taken out of the picture here. They were taken and dealt with separately. And over the weekend the jury's questioning ended on a Friday. And the judge said, all right, over the weekend you've got your chance to decide who you're going to strike. And you knew exactly who they're going to strike because the jurors are listed in order. And the state goes first, and if it accepts the jurors, and the state accepts, and that jurors on, there's no going back

. There's no backstriking. There's no striking people here in there. They developed three strike lists. And one of those strike lists was a list headed definite notes. These are the people absolutely are not going to be on this jury. There are only six jurors listed on the list of definite notes. And the first five are African Americans. The sixth is a juror who made clear during the Waddeer process that she could not impose the death penalty under any circumstances. The state moved to strike her for cause. The judge probably aired in not granting that strike. But even she ranked behind the black jurors in terms of the priorities that the prosecution had for striking. At the time, Mr. Leneer said they weren't striking the jurors because of race. They were striking them because they were women. And I guess three out of the four African-Americans were who were struck were women. How does that and then that explanation has just kind of fallen out of the case. How does that affect the analysis? You did accept women, though, as well if, bare with him just a moment. Of course, I did not yet have the bats in applies to the court. The court had not yet held in J.E.B. that bats and applied to women. But the court did say in J.E.B. that, of course, it could be used as a pretext of women for striking on the basis of race. In this case, the prosecutor struck three white jurors and then he struck the three black jurors, women, the three black women and the three white women. The final. Mr. Leneer answered yes during the trial. When he was asked whether he had done, I don't know if it was on the motion for a 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 shirt? No, the only, what that's talking about and the investigator said this in his deposition was the color-race-coded color list, those first four lists you have in the joint appendix, in which the blacks are marked with a B and a highlighted in green with a marker up at the corner in green designated black

. So, your understanding of that statement was that all he had only done an extensive search on the blacks on the list? Well, it's clear, Mr. Lundy had prepared a list of notes in which you talked about just the black jurors in the case. And I think the State concedes in its brief that the focus was on the black jurors. During the trial, did defense counsel when he made his initial bats in trial? It's not in the papers, but at trial. Did he again say that this was part and parcel of the prosecutor's pattern? He didn't say that, but I point this interesting thing out. When they discussed the bats in motion before trial, there was never a suggestion that there wouldn't be a bats in hearing. Everybody knew what was going to happen, that all the blacks would be struck, and then they'd have a hearing after that happened. But the defense had basically put their motion in writing and relied upon that throughout the jury. I was just surprised that we didn't hear about this preparation for a bats in hearing until the habeas. The defense lawyers at trial didn't move for the prosecution's notes, and the prosecution opposed that. They very strict and not give them their notes. Then when the prosecutor testified on the motion for new trial, he did something I've never seen a lawyer do before. He cut a bargain sort of with the judge and the lawyer saying, I will testify, but only if I don't have to show them my notes. I mean, basic rules of evidence are you testify and rely upon notes, the other side can see the notes. But here, these notes were guarded until 2006 when we obtained them through a freedom of information or what they call open record sacking in Georgia. The prosecutor said that you, they said we never, we never wrote, so authorized overlight on those notes. And you didn't call the prosecutor's attest the veracity of that assertion. But all the prosecutor talked about were the color highlighted notes. Each prosecutor filed an affidavit which are in the joint appendix at 168. And all they said was we didn't highlight it in green and we didn't tell anybody else to highlight it in green. And then Mr. Leneer says, and I don't have anything else to say beyond what I said at the bat's and hearing and the motion for new trial. Mr. Pullen said the only other thing he says is I didn't use those green highlighted lists in choosing the jury. But of course, that's just the first few pages. What's damning about this is not so much that, but the definite notes list, the misrepresentation to the trial court that Ms. Garrett, they wanted Ms. Garrett. That's what they told the trial court and the trial court relied upon that in denying the bats' motion that this showed their openness to having. Ms. Garrett was on the definite no list. She was on each of the strike lists

. Ms. Garrett was never in the running to be on this jury, but they represented to the court that because another African American, Shirley Powell, was excused for cause. There were five African Americans in the near at the start when they got ready to struck the jury. But one said, turns out I know somebody in the family, she was excused for cause, and the prosecutor said it made it implied clearly that had it not been for that, that extra strike, that Ms. Garrett would have said. At the same time, and they're still arguing in this both ways that they both wanted her and didn't want her, they give 11 reasons for why Ms. Garrett would not be a good jury, that she's impudent and she doesn't respect the court. If you believe all the things they said about her, they would never want her as a jury. But those things I would submit are not really valid in terms of the reasons, because the reasons they gave here, many were demonstraily false and not supported by the evidence, including reasons they gave about Ms. Garrett. They were inconsistent, some were completely incredible, and they applied to white jurors, some of these reasons applied to white jurors who had the same characteristics as the African Americans who were struck. And then lastly, and what's so important under Miller-L, they didn't question the jurors about the reasons for striking. They gave reasons for striking, and one question would have cleared up some of these. And Miller-L says that the figure to engage in any meaningful voidier about whatever your reason is, is evidence suggesting that the explanation is a sham and a pretext. Mr. Brite, 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, that's enough to defeat a batson challenge. Do you believe that's an appropriate rule? Are you suggesting a different approach to the question? Well, I would suggest it can't possibly be, because this court said, and just as the leader of the opinion in Snyder versus Louisiana, that where the Prymptory strike was shown to have been motivated in some stanchial part by race, that it could not be sustained. And, excuse me, I would suggest you, it shouldn't even really say substantial, because if this court, as it said so many times, is engaged in unceasing efforts to enraged discrimination in the criminal courts, then strikes motivated by race cannot be tolerable. And, of course, it is pointed out here in the Miki. This is a serious problem, not just in this case, but in other cases where people come to court with their canned reasons and just read them off, that happened in this case, where one of the reasons that was given was just taken verbatim out of a report, or two of the reasons given, were 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 wasn't his personal preference, it was the personal preference of some US attorney in Mississippi, who gave that reason, and then it was upheld on appeal by the 5th Circuit. But, we would suggest that the standard is at least what Snyder says, because when you have both, you can always have, as Miller L. recognized. Well, in response to Justice Sotomayor's question, if the prosecutor argues a laundry list of reasons for striking the black cure, and some of those are reasonable and some are implausible, how should the court approach the bats in analysis? I think the Court looks at which reasons are protectional. I think the fact that there is a laundry list suggests in and of itself that the court should scrutinize the reasons very carefully, should be suspect of the reasons, because otherwise what the Court is going to do is just simply encourage prosecutors or any party in a case, since bats and applies to everyone, is going to encourage a party to just give as many reasons as possible and hope that one will be acceptable. And in this case. I think this is a case by case thing. Suppose there is one reason that's a killer reason. Like this individual has numerous prior felony convictions, all right, and then the prosecutor says in addition. And this person didn't, we looked down at the floor and answering the questions and didn't seem to pause and didn't seem to understand some of the questions. So under a circumstance like that, couldn't the Court say, well, there's one reason here that would, it is clearly a justification for a parrump to restrict

. We don't have to determine whether there's evidence that the person was looking down at the floor. Well, of course, bats and says, in this subsequent case is say, you look at all relevant circumstances. It may be if all the circumstances that are there, the ones you said, then you would come to the conclusion that of those two reasons that there was a valid reason. But I would suggest that where you have, in addition like we have here, I mean, we have an arsenal of smoking guns in this case. A lot of those smoking guns were in the original decisions 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 the rest were not enough to demonstrate a bats and violation, the new smoking guns would tip the scale. Isn't that the issue that Georgia courts decided? When the new smoking gun tells you that the prosecutor misrepresented facts and gave reasons, there were absolutely faults, demonstrally false reasons. And those are not clear before. But you have that now. I mean, bats and turns on the feasibility of the reasons, it turns on the credibility. All I'm saying, and you seem to be agreeing, is that it is not the overall bats and judgements that's before us, but rather the judgment that the new evidence did not suffice to create a bats and violation where none existed before. Now, our position is that when you look at the new evidence with all the evidence of trial that all relevant circumstances considered together, considering that a lot of these reasons, we now know from the notes. We now know from the notes that there were misrepresentations with regard to these reasons. I mean, the Georgia Supreme Court, just as an example, Justice Scalia, upheld the strike of Ms. Garrett on two basis that she was a social worker and that her cousin had been arrested for drugs. She was not a social worker, and secondly, the prosecutor didn't find out until after trial about her cousin's arrest, so it couldn't have possibly been a reason for the strike. So, the- You're saying an answer to Justice Scalia that when you had the notes, those notes cast doubt on some of the prosecutor's justifications in the first round. They do that, and they show misrepresentations to the Court, and they show an overarching goal of separating out the African-American citizens, treating them differently, and then putting them on this list of definite notes. And, Mr. Brite, just to make sure I understand all the notes in the prosecutor's files were new. Is that right? No, noot in this case, yes. And there were three people that just involved the two prosecutors and the investigator who put those together. I'd like to reserve the balance of my time. Thank you, counsel. Mr. Burton? Mr. Chief Justice, and may it please the Court, I'll be there two important factors in this case when reviewing the entirety of the evidence. One is Petitioner Bears, the burden of establishing clear-to-earth. I ask you as well to address the search-or-rary question first. And, and, and, respectfully, I disagree with Petitioner's counsel on this issue. I believe Norfolk, Western Railway versus Hiles, which is this Court's opinion, indicates that or states that if there is an issue raised in the lower court, and it is raised in the State's highest court, in this case, the George Supreme Court, but the George Supreme Court denies discretionary review, then it is before this Court on search-or-rary from the lower court. So the problem is, I don't think this is discretionary review

. The 11th Circuit found it's not under Georgia law. Read its opinion, it seems pretty grounded in the State at law of Georgia. Yes, Your Honor. And that is a, that's a pretty hot button issue I know right now in the State Federal Court in Georgia, but our position in that, in that those cases, and in, I think, there's a case before this Court on rehearing on that same issue, is that Georgia statute, the Georgia statute specifically says that is a discretionary appeal. The 1975 Haviest Corpus Act made it a discretionary appeal, I think, because the George Supreme Court was just getting inundated with appeal after appeal. And has the Georgia Supreme Court ever said anything one way or the other is to whether it's discretionary or not? In two of their cases, Reed versus Hopper, which is 219, South Eastern Second, 409, and Smith versus Nichols, which is 270, South Eastern Second, 550, 1999, they both state those as discretionary. But they have not, they have not, sort of, a certified question on that issue. Could you give me the Reed versus would? Yes, Your Honor. 219, South Eastern Second, 409. That's a 1975 case. Are certified questions available in Georgia? Could we certify a question to the Georgia Supreme Court? I believe you can, Your Honor. You did. I looked at the statute. The statute says in a Haviest case, state Haviest, that the Georgia Supreme Court must review it. It says it must review it unless it's without merit. I forget the exact words I was looking for in the. In State Haviest, I think it's 914-52. It takes state Haviest cases out of other appellate review and makes that just discretionary. The Georgia Supreme Court- Well, I've been looking at the wrong place. You heard, your brother here say, he quoted some words. I don't remember the exact words, but they were exactly what I'd read, and it was from a statute in Georgia. And the statute said, I just can't find it in my book here. Sorry. The Georgia statute said they shall review the case unless it's without merit, something like that. Does that ring a bell? Well, there is. Is it ring a bell, what I'm saying? It does ring a bell. What are the exact words? I do not know the exact words, but I believe the- The exact words are that a certificate of probable cause will be issued when there is arguable merit. Yeah. That's it. But I believe that's rule 36 of the Georgia Supreme Court. I think it's 914-52. I hope there have been compliance with that, right? Okay

. Does that govern this case? I believe the statute would trump this. Does the word that the chief justice just read from Georgia law govern this case? The answer is yes or no? I believe it's to do- I do not govern this case. I believe this is- What in your opinion is the Georgia statute that says that those words you just held do not govern this case? I believe it's 914- I'm certainly open to correction. 914-52 states that state habeas is taken out of other appeals, which are normally directly appeals, or prisoner appeals, and they are discretionary. Okay. I suppose that that a court could have discretionary view, but could provide by rule that in the exercise of our discretion we will grant any of these unless it's patently wrong. Could- Maybe that's what's happened here. And if you use your discretion to enact a rule which says you will take cases of a certain court, does the taking of those cases still remain discretionary? That's a nice question, isn't it? I think the taking of the case does remain discretionary if they find it has argument is discretionary, and the two cases outside it specifically reference. You have just decided that you will uniformly exercise your discretion in a certain way. Correct. But maybe I'm misunderstanding what you're saying. You're saying there is no such uniform determination that they will exercise their discretion in a certain way, that they are insistent upon their discretion being discretionary. Is that correct? That is my understanding, because this law applies to not just, obviously, death-own-y cases, but the multitude of non-death-own-y cases. I'm sorry. I'm so confused I can't even. The State Havius process is different than the regular appeal process. That's correct. On the regular appeal process, they look at each case with discretion. On a direct appeal process, it, it, it, and certainly a capital case, it is mandatory review. Okay. In State Havius, they have a rule, an internal rule that says, will take every Havius case unless it has no arguable merit, right? If I may rephrase, I think the rule says that they will take a case if it has arguable merit. Do you believe that they will take a case? Do you believe that they will take a case if it has a arguable merit? Do you believe that they will take a case? I would never say they were too busy to take the case. I'm sorry. I would never say they were too, that would be their reason, but I think they would say, we've looked at this case, because they do have the records before them, and we do have the, we don't see arguable merit to take this case up for, so that is a decision on the merits. There's no arguable merits. I think it is a fun, there's no arguable merit to the application that there has been error below. Okay. If that makes it any clearer. Now it's clear. And in your view, search should have been granted to the Georgia Supreme Court? I believe it, I believe it should have been granted to the State Havius Court, because it wasn't that discretionary review, and because I believe that this Court has said in Michigan versus long, that if it's unclear, it comes from the State Havius Court. Can I just ask one more quick question about this? You made reference. This is an issue that's being litigated in the Georgia courts

. Is that right in the 11th Circuit? That is correct. This precise issue. This is the issue. Thank you. Two. What issue was that? Is it the issue of which court the search for or I should be directed to? Well, it's the issue of what? What is the issue that is litigated? Am I right that the issue that's being litigated is whether the Supreme Court review in case it's like this is discretionary or not discretionary? That is correct. In those cases, obviously, it's coming up from Federal Court, so we're dealing more with Elst and Harington versus Richter. And a sort of a different scope of things in that regard. And this question is in both the Georgia Supreme Court and in the 11th Circuit. It is currently in the 11th Circuit. I don't believe we have a case pending now in the Georgia Supreme Court on that particular issue. But I do believe there is an issue up here in the case Jones versus Chapman, where they've asked for we hear. Do you think this would be an appropriate case for us to exercise our discretion to certify the question to the Supreme Court? We would certainly like an answer from the Supreme Court on that issue. I think the 11th Circuit would like that as well. I think it would clear up both State and Federal law for a number of things. There's a statute that permits the Georgia Supreme Court to accept certified questions. Do you know anything about the history of request for certification? Some states have such a process, but the State Supreme Court rejects the question. I do not, you're not apologize. What if we hold in this case that it is not discretionary review, and then in these cases that are pending the Georgia Supreme Court says it is discretionary review? Who wins? Is it ultimately a question for us or for the Georgia Supreme Court? I think it's ultimately a question for the George Supreme Court as to what their law is, what the State law is. Why? Me too. Can I go to the merits? Is that all right? Sure. Okay. Unless other people? Okay. Look, 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 perspective jurors as a group that they had basically said we don't want any of these people. Here's the one we want if we really have to take one, but that they're the all the evidence suggests a kind of singling out, which is the very antithesis of the bats in rule. So, you know, I mean, but isn't this is, I'm just going to ask you, isn't this is clear about some violation as a court is ever going to see? I don't think it is. And I think because these notes that we have, they don't undermine any of the findings that were given by the prosecutor in his strikes, particularly of Mr. Hood and Miss Garrett. They certainly can be interpreted in two ways in our response briefed to this court. We don't know, when we say, you know, this is why these highlights are there. There is a reasonable explanation just as Mr. Foster is given speculation of his arguments. We don't know. But when they're- What's the reasonable explanation? The reasonable explanation in this case is four months prior to trial, as was previously argued, bats and had just come out bats and his new four months prior to trial, defense counsel files a motion and says the strike of any black juror were filing a bats and challenge. Two weeks prior to trial, he says he files a motion and says, there's racial disparity in 179 jurors. And that's the- that's the list that's challenged, the 179. There's racial disparity of black prospective jurors on that list. The day of trial, he refiles that. So, I would be more surprised, quite frankly, if there wasn't some sort of highlighting, or- In other words, the argument you're making here is that- That- If not, is that the reason he highlighted all the black jurors in green and said, black, what about the black jurors? And all these different things was because he was preparing a defense in case of a bats and challenge. Correct. All right. Now, if that's correct, why is this the- Is this argument made before your main brief in this case? And it was not- It was not. And that's- It was not. So, if that had been his real reason, why isn't it a little surprising that he never thought of it, or didn't tell anybody? Until you raised this argument in your main brief? And- And I would- I would say that's on State Habiest Council. We relied on our race to Cotta Bar throughout State Habiest, and then after that, basically defended the factual findings of the State Habiest. All right. It seems to me you have two arguments. One is this argument that he never thought of apparently, at least never thought to tell you until quite recently, and the other after years. And so, it's hard to believe that's his real reason. And then there's a second argument that he had about 40 different reasons. And at least some of them could be valid. Okay. Now, if my grandson tells me, I don't want to watch- I don't want to do my homework tonight at 7, because I'm just so tired. And besides, I promised my friend I'd play basketball. And besides that, there's a great program on television. And besides that, you know, I really- My stomach's upset, but I want to eat spaghetti. And so, he's now given me five different reasons. But what do I think of those reasons? Well, in this case, and again, I think this is- One may be valid. Correct. And the other ones also may be- Which one? Well, they all may be valid, but they all may not be as strong as the first one. But in this case, I think the important part- Well, wait, the point is he gave 40 different reasons. And the very fact that he gives 40 different reasons, and many of them are self-contradictory, obviously not applicable, totally different from, you know, that's why I use my grandchild's analogy. All right? And so, I would say my answer to my grandchild is, look, you're not too tired to do your homework

. Foster is given speculation of his arguments. We don't know. But when they're- What's the reasonable explanation? The reasonable explanation in this case is four months prior to trial, as was previously argued, bats and had just come out bats and his new four months prior to trial, defense counsel files a motion and says the strike of any black juror were filing a bats and challenge. Two weeks prior to trial, he says he files a motion and says, there's racial disparity in 179 jurors. And that's the- that's the list that's challenged, the 179. There's racial disparity of black prospective jurors on that list. The day of trial, he refiles that. So, I would be more surprised, quite frankly, if there wasn't some sort of highlighting, or- In other words, the argument you're making here is that- That- If not, is that the reason he highlighted all the black jurors in green and said, black, what about the black jurors? And all these different things was because he was preparing a defense in case of a bats and challenge. Correct. All right. Now, if that's correct, why is this the- Is this argument made before your main brief in this case? And it was not- It was not. And that's- It was not. So, if that had been his real reason, why isn't it a little surprising that he never thought of it, or didn't tell anybody? Until you raised this argument in your main brief? And- And I would- I would say that's on State Habiest Council. We relied on our race to Cotta Bar throughout State Habiest, and then after that, basically defended the factual findings of the State Habiest. All right. It seems to me you have two arguments. One is this argument that he never thought of apparently, at least never thought to tell you until quite recently, and the other after years. And so, it's hard to believe that's his real reason. And then there's a second argument that he had about 40 different reasons. And at least some of them could be valid. Okay. Now, if my grandson tells me, I don't want to watch- I don't want to do my homework tonight at 7, because I'm just so tired. And besides, I promised my friend I'd play basketball. And besides that, there's a great program on television. And besides that, you know, I really- My stomach's upset, but I want to eat spaghetti. And so, he's now given me five different reasons. But what do I think of those reasons? Well, in this case, and again, I think this is- One may be valid. Correct. And the other ones also may be- Which one? Well, they all may be valid, but they all may not be as strong as the first one. But in this case, I think the important part- Well, wait, the point is he gave 40 different reasons. And the very fact that he gives 40 different reasons, and many of them are self-contradictory, obviously not applicable, totally different from, you know, that's why I use my grandchild's analogy. All right? And so, I would say my answer to my grandchild is, look, you're not too tired to do your homework. And I think any reasonable person looking at this would say, no. His reason was a purpose to discriminate on the basis of race. Now, tell me why I'm wrong. I think because you have to look at the time period this was done. This was done not, you know, a year after Batson came out. And even throughout the transcript, people, the Defense Council, and the prosecutor says, we don't really know where Batson's going. So in this case, the prosecutor dealing with Batson for the first time- The first time in history anybody has had to put strikes on the record- But he's simply wrong. He puts down if it comes- It comes down to having to pick one of the blackers, was it Miss Garrett might be okay. And that's Mr. Lund, that's the best thing. Well, but that seems to me to undercut the argument, well, they're just feeding their way and so forth. They've misstaken Batson. Sure, it was new, but they're wrong. Well, first let me say, I think that's why there was a laundry list because he was just espousing every reason he had. But with regard to Mr. Lund, he's notes, and that was the investigator who says, if we have to choose a black juror, she may be the best one. Who is responsible for the definite no list? The definite no list. Nobody, the only person that was asked about that was Mr. Lund, who was deposed and said he could not identify who wrote that list. So we don't- There are only three possible choices. We know it came from the DA's office. And it exists, that's the sacred existence, is definite no. Correct. And I don't think that is- I don't think that was a ranking of jurors because when you look, they did scorers throughout. But they were five African-American jurors on the definite- Well, and one of them was Jarrett. This, as was pointed out, they said, we have to have one. Let it be Jarrett. But Jarrett then chose up on the definite no list. Correct. And- Or we told that the only three people who did the investigation on Batson were the two prosecutors on the case in Mr. Lund. So if Mr

. And I think any reasonable person looking at this would say, no. His reason was a purpose to discriminate on the basis of race. Now, tell me why I'm wrong. I think because you have to look at the time period this was done. This was done not, you know, a year after Batson came out. And even throughout the transcript, people, the Defense Council, and the prosecutor says, we don't really know where Batson's going. So in this case, the prosecutor dealing with Batson for the first time- The first time in history anybody has had to put strikes on the record- But he's simply wrong. He puts down if it comes- It comes down to having to pick one of the blackers, was it Miss Garrett might be okay. And that's Mr. Lund, that's the best thing. Well, but that seems to me to undercut the argument, well, they're just feeding their way and so forth. They've misstaken Batson. Sure, it was new, but they're wrong. Well, first let me say, I think that's why there was a laundry list because he was just espousing every reason he had. But with regard to Mr. Lund, he's notes, and that was the investigator who says, if we have to choose a black juror, she may be the best one. Who is responsible for the definite no list? The definite no list. Nobody, the only person that was asked about that was Mr. Lund, who was deposed and said he could not identify who wrote that list. So we don't- There are only three possible choices. We know it came from the DA's office. And it exists, that's the sacred existence, is definite no. Correct. And I don't think that is- I don't think that was a ranking of jurors because when you look, they did scorers throughout. But they were five African-American jurors on the definite- Well, and one of them was Jarrett. This, as was pointed out, they said, we have to have one. Let it be Jarrett. But Jarrett then chose up on the definite no list. Correct. And- Or we told that the only three people who did the investigation on Batson were the two prosecutors on the case in Mr. Lund. So if Mr. Lund says, I didn't make that list, it has to be one of the two prosecutors. It has to be one of the two prosecutors. And one was not there on the day it was struck. The jury was struck. Only Mr. Lund near was. But if that's not Mr. Lund near's thought process of this definite no list, and I don't see that that gets you to clear error in the striking of Mr. Hood or Mr. Garrett. What do you do with other, it just seems an out and out false statement. The reason that's given one of the reasons for Jarrett being struck is that her cousin was arrested. But then in the prosecutor doesn't know that at the time of the wanted. He doesn't know until after the wanted that the cousin was arrested. So how could it possibly be a reason at the time of the wanted? And I don't think the record bears that out. These note, the highlighted notes that Petitian wants to say, these were used during Vaudier, these were used during the strikes. In those notes, and this is that Joint Appendix, page 256, Angela is written out beside Mr. Garrett's name. In Mr. Lund, he's notes where he said he wrote down things he knew prior to the strikes, prior to what he knew about individual jurors. He wrote down, as to Marilyn Garrett, Angela Garrett is a cousin. So, and then Mr. Lund, here, test the right. The behavior court provided an excuse to say, I'm sorry, no, let's see. Didn't the habeas court say, except that he didn't know at the time of trial? He just knew that Lund didn't want her. The habeas court actually credited the fact that Mr. Lund had advised trial counsel that Angela Garrett should be struck. That was his explanation for why the prosecutor didn't know about the prior arrest, correct? No, I think the State habeas court credited that as one of the facts at the strike. And Mr. Lund did not want her. Excuse me, I'm sorry. That Mr

. Lund says, I didn't make that list, it has to be one of the two prosecutors. It has to be one of the two prosecutors. And one was not there on the day it was struck. The jury was struck. Only Mr. Lund near was. But if that's not Mr. Lund near's thought process of this definite no list, and I don't see that that gets you to clear error in the striking of Mr. Hood or Mr. Garrett. What do you do with other, it just seems an out and out false statement. The reason that's given one of the reasons for Jarrett being struck is that her cousin was arrested. But then in the prosecutor doesn't know that at the time of the wanted. He doesn't know until after the wanted that the cousin was arrested. So how could it possibly be a reason at the time of the wanted? And I don't think the record bears that out. These note, the highlighted notes that Petitian wants to say, these were used during Vaudier, these were used during the strikes. In those notes, and this is that Joint Appendix, page 256, Angela is written out beside Mr. Garrett's name. In Mr. Lund, he's notes where he said he wrote down things he knew prior to the strikes, prior to what he knew about individual jurors. He wrote down, as to Marilyn Garrett, Angela Garrett is a cousin. So, and then Mr. Lund, here, test the right. The behavior court provided an excuse to say, I'm sorry, no, let's see. Didn't the habeas court say, except that he didn't know at the time of trial? He just knew that Lund didn't want her. The habeas court actually credited the fact that Mr. Lund had advised trial counsel that Angela Garrett should be struck. That was his explanation for why the prosecutor didn't know about the prior arrest, correct? No, I think the State habeas court credited that as one of the facts at the strike. And Mr. Lund did not want her. Excuse me, I'm sorry. That Mr. Lund did not want her. He never credited or never said that he knew this, that he knew about the arrest. Mr. actually, Mr. Lund, he testified twice though that he was aware at the time of jury selection that he knew about. Mr. Lund did, but the prosecutor didn't. Well, no. In the motion of due trial, Mr. Lund, the prosecutor testified and said, I knew during Voidier, Mr. Lund told me that. That said, join appendix 105 and 112. Did he also testify, this is on 14 of the reply brief, it has come to our attention since the trial of this case that Angela Garrett was arrested? It says on that in the page of the transcript, which I cannot explain to you in contrast to in the notes, it is noted that she is the cousin prior to the jury selection. Unless that means, and I've read it several times, since that time she's been dismissed from her job. Again, it's unclear as to what about the giving a reason for dismissing her that she was close in age to the defendant? When in a- She was in her 30s, he was 18 or 19. And when he initially strikes, when Mr. Lund here initially explains his strikes, he does state her age. So he is not trying to say she's 23 or he states her age is 34. And throughout the overall theme was, we don't want younger jurors. We're looking for older jurors closer to the age of the victim age 79. So I think, you know, maybe the Martin-no, it's not the most articulate framing of it, but I think it's more of a generational she was younger. And that, the age, I don't think, was a make or break factor. Working at head start with underprivileged children, a make or break factor, a similarly situated whiteger also struck for that same purpose. But Ms. Burton, I mean, wouldn't you agree? In a lot of these bats in cases, you'll have reported justifications, which they could support a valid preemptory strike, right? But the question for a court is, well, but did they support this valid preemptory strike? In other words, what was the prosecutor thinking? Batzen is a rule about purposeful discrimination, about intent. And so it doesn't really matter that there might have been a bunch of valid reasons out there if it was clear that the prosecutor was thinking about race. You agree with that, right? I think if this intent was to strike based on race. Yeah, if it isn't done with the strike based on race, it doesn't matter that he could have had a different intent that would have supported a good preemptory strike. And so the question of whether someone or other might have been properly struck by a prosecutor isn't really the question. The question is on the total amount of evidence before us, including all these prosecutors and notes, what was going on with respect to each of these preemptory strikes. And then you have to deal with not just, oh, it could have been this or it could have been that, but you have to deal with all this information that what it really was was, they wanted to get the black people off the jury. And I don't think these notes show that

. Lund did not want her. He never credited or never said that he knew this, that he knew about the arrest. Mr. actually, Mr. Lund, he testified twice though that he was aware at the time of jury selection that he knew about. Mr. Lund did, but the prosecutor didn't. Well, no. In the motion of due trial, Mr. Lund, the prosecutor testified and said, I knew during Voidier, Mr. Lund told me that. That said, join appendix 105 and 112. Did he also testify, this is on 14 of the reply brief, it has come to our attention since the trial of this case that Angela Garrett was arrested? It says on that in the page of the transcript, which I cannot explain to you in contrast to in the notes, it is noted that she is the cousin prior to the jury selection. Unless that means, and I've read it several times, since that time she's been dismissed from her job. Again, it's unclear as to what about the giving a reason for dismissing her that she was close in age to the defendant? When in a- She was in her 30s, he was 18 or 19. And when he initially strikes, when Mr. Lund here initially explains his strikes, he does state her age. So he is not trying to say she's 23 or he states her age is 34. And throughout the overall theme was, we don't want younger jurors. We're looking for older jurors closer to the age of the victim age 79. So I think, you know, maybe the Martin-no, it's not the most articulate framing of it, but I think it's more of a generational she was younger. And that, the age, I don't think, was a make or break factor. Working at head start with underprivileged children, a make or break factor, a similarly situated whiteger also struck for that same purpose. But Ms. Burton, I mean, wouldn't you agree? In a lot of these bats in cases, you'll have reported justifications, which they could support a valid preemptory strike, right? But the question for a court is, well, but did they support this valid preemptory strike? In other words, what was the prosecutor thinking? Batzen is a rule about purposeful discrimination, about intent. And so it doesn't really matter that there might have been a bunch of valid reasons out there if it was clear that the prosecutor was thinking about race. You agree with that, right? I think if this intent was to strike based on race. Yeah, if it isn't done with the strike based on race, it doesn't matter that he could have had a different intent that would have supported a good preemptory strike. And so the question of whether someone or other might have been properly struck by a prosecutor isn't really the question. The question is on the total amount of evidence before us, including all these prosecutors and notes, what was going on with respect to each of these preemptory strikes. And then you have to deal with not just, oh, it could have been this or it could have been that, but you have to deal with all this information that what it really was was, they wanted to get the black people off the jury. And I don't think these notes show that. What the notes show, again, with Mr. Hood and Mr. Garrett, that their contemporaneous notes taken at the time of trial as to each of these jurors are the reasons they struck them. I mean, there's no derogatory comments within those notes. Where there are, you know, other reasons that are plausible but could be phony. Surely it's the judge that hears the testimony who's best able to judge whether asserted reasons or phony reasons are not. Isn't that right? Yes, sir. And I don't believe that. Sort of hard for us to do it on a cold record. I mean, it's harder. It's harder, not impossible, but. It just, obviously, it raises, of course, a very good point in the mind-run of cases, but not in a case where all the evidence of intentional discrimination was not before the judge at the time. And again, I don't think there's, I don't think there's clear error here on these notes of racial discrimination. Their strikes are sound. As to Mr. Hood, you would not want Mr. Hood on the jury regardless of his race based on his reasons. The reason that he gives a laundry list, like I said, may well have been because we were in 1987 and you're just putting out everything you can because you're not exactly sure what you're supposed to do. Well, we're in the notes turned over earlier. The notes were not turned over earlier, although it was brought up in the motion for new trial in November, right after the trial in 1987. And the prosecutor, Mr. Lanier, says, I will give my notes to the court to look at in bank if defense counsel will do the same. Defense counsel chose not to do so. That issue was raised on appeal to the George Supreme Court, Direct Appeal. The George Court, George Supreme Court found it was work product. It didn't have to be turned over. When we got to State habeas proceedings, they found an open records request under Georgia law. And they were immediately turned over. I don't think there was any argument about it at that point. What would you do with the failure to ask Ms. Garrett any questions about the issues that troubled the troubled, for example, her cousins arrest. There's an assumption that she has a relationship with this cousin

. What the notes show, again, with Mr. Hood and Mr. Garrett, that their contemporaneous notes taken at the time of trial as to each of these jurors are the reasons they struck them. I mean, there's no derogatory comments within those notes. Where there are, you know, other reasons that are plausible but could be phony. Surely it's the judge that hears the testimony who's best able to judge whether asserted reasons or phony reasons are not. Isn't that right? Yes, sir. And I don't believe that. Sort of hard for us to do it on a cold record. I mean, it's harder. It's harder, not impossible, but. It just, obviously, it raises, of course, a very good point in the mind-run of cases, but not in a case where all the evidence of intentional discrimination was not before the judge at the time. And again, I don't think there's, I don't think there's clear error here on these notes of racial discrimination. Their strikes are sound. As to Mr. Hood, you would not want Mr. Hood on the jury regardless of his race based on his reasons. The reason that he gives a laundry list, like I said, may well have been because we were in 1987 and you're just putting out everything you can because you're not exactly sure what you're supposed to do. Well, we're in the notes turned over earlier. The notes were not turned over earlier, although it was brought up in the motion for new trial in November, right after the trial in 1987. And the prosecutor, Mr. Lanier, says, I will give my notes to the court to look at in bank if defense counsel will do the same. Defense counsel chose not to do so. That issue was raised on appeal to the George Supreme Court, Direct Appeal. The George Court, George Supreme Court found it was work product. It didn't have to be turned over. When we got to State habeas proceedings, they found an open records request under Georgia law. And they were immediately turned over. I don't think there was any argument about it at that point. What would you do with the failure to ask Ms. Garrett any questions about the issues that troubled the troubled, for example, her cousins arrest. There's an assumption that she has a relationship with this cousin. I have cousins who I know have been arrested, but I have no idea where they're in jail. I hardly, I don't know them. So, but he didn't ask any questions. Doesn't that show pretext? I don't, I'm not going to inquire because she might get off the hook on that. Well, I think a number of times, and I know this Court's precedent on not asking questions, is particularly in Vodere as people, but as to a number of issues, I think when you're in Vodere and you're asking questions, you don't necessarily care what the answer is. Because with regard to Mr. Hood, if he had said, yes, I have a son that's been arrested, it's not going to bother me a bit that you prosecute him, my son. And he may be. Stealing hookpaps in my mind is decidedly different than murdering people or attacking them the way this case was about. I can imagine a fault. Why can't you imagine a father saying it was stealing hookpaps? And he should have been punished. And he may well have it, but it's a risk. I don't, the prosecutor. That's when the record supports. Well, it's a risk the prosecutor didn't have to take. If you have somebody, as I said, Mr. Hood could very well have said that, very well have met that, never have been lying, but in my mind, I'm thinking he's going to get back there and he's going to think, I don't know about that. I want to ask you a different question before your time is up. And I'd like you to respond to the question that Justice Alito initially asked. Okay. And that is, is there an independent state ground here? Now, you're familiar with the record, and I read on page 192 of your record, the decision. And the first paragraph supports the view that you would like to hold, I think, that this is based upon Race, Judicolor, which is a state matter. And then there is the paragraph that was read to on page 195 and 196, where the judge says, the reason that I reach that conclusion is because the note that Justice Alito's and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race was the basis. Okay. That sounds like Batson to me. And then he goes on to say, and in addition, there is no good reason given now or then. And then he concludes, accordingly, the Court finds the renewed Batson claim is without merit. So if I read just that paragraph, I would think the reason that the judge found in your favor is he decided the Batson claim in your favor. He didn't have to. He could have gone on some other ground, but that's the ground he did go on. But at worst, why isn't it ambiguous? And if it is ambiguous, then why don't we take, you know, I think it's what's long, you know, all those cases. If it's ambiguous, then aren't we required to assume that the judge went on the federal ground? Okay

. I have cousins who I know have been arrested, but I have no idea where they're in jail. I hardly, I don't know them. So, but he didn't ask any questions. Doesn't that show pretext? I don't, I'm not going to inquire because she might get off the hook on that. Well, I think a number of times, and I know this Court's precedent on not asking questions, is particularly in Vodere as people, but as to a number of issues, I think when you're in Vodere and you're asking questions, you don't necessarily care what the answer is. Because with regard to Mr. Hood, if he had said, yes, I have a son that's been arrested, it's not going to bother me a bit that you prosecute him, my son. And he may be. Stealing hookpaps in my mind is decidedly different than murdering people or attacking them the way this case was about. I can imagine a fault. Why can't you imagine a father saying it was stealing hookpaps? And he should have been punished. And he may well have it, but it's a risk. I don't, the prosecutor. That's when the record supports. Well, it's a risk the prosecutor didn't have to take. If you have somebody, as I said, Mr. Hood could very well have said that, very well have met that, never have been lying, but in my mind, I'm thinking he's going to get back there and he's going to think, I don't know about that. I want to ask you a different question before your time is up. And I'd like you to respond to the question that Justice Alito initially asked. Okay. And that is, is there an independent state ground here? Now, you're familiar with the record, and I read on page 192 of your record, the decision. And the first paragraph supports the view that you would like to hold, I think, that this is based upon Race, Judicolor, which is a state matter. And then there is the paragraph that was read to on page 195 and 196, where the judge says, the reason that I reach that conclusion is because the note that Justice Alito's and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race was the basis. Okay. That sounds like Batson to me. And then he goes on to say, and in addition, there is no good reason given now or then. And then he concludes, accordingly, the Court finds the renewed Batson claim is without merit. So if I read just that paragraph, I would think the reason that the judge found in your favor is he decided the Batson claim in your favor. He didn't have to. He could have gone on some other ground, but that's the ground he did go on. But at worst, why isn't it ambiguous? And if it is ambiguous, then why don't we take, you know, I think it's what's long, you know, all those cases. If it's ambiguous, then aren't we required to assume that the judge went on the federal ground? Okay. Now, that's both Alito's question. It's what I think is the hardest point for you to overcome, and I want to hear your response. I actually agree that it's unclear. I think that's the end of it, isn't it? It is the end of it. I think it's unclear. One other issue. What do you think is Georgia raised you to cut a law? I think in Georgia, if you have new facts or new evidence, the rest of you to cut a goes out the window. Then the court gets to look at the issue and go beyond. And I think in this case, once you have new facts or new evidence, if the court, and in this case, finds that they can review the evidence of new and a new review is hired, then I think you are beyond that bar. I don't understand what you've just said. Save again. Okay. If the issue has been decided on direct appeal, and then you cannot go back to it. A spear court obviously can't overturn the state's highest court. But when you have new evidence such as in this case, and it is strong evidence that the court feels like it has to go, it has to look at that evidence. In this case, it did. Then I think you will be on the raised you to cut a bar. I mean, I think that that's exactly how the decision is framed, right? Because the decision talks about claims that are not reviewable due to raised you to cut a. It lists many, many, many claims. And then it lists a whole bunch of claims that are procedurally defaulted. And then this is in a separate section, the bats in issue, and it's in a section that's with all the other claims that there were merits determinations being made about. And the court is very clear. First sentence, last sentence, first sentence, the court finds the prosecution did not violate bats and versus Kentucky. Last sentence, on the merits, the person, the petitioner loses. So as much as I would like it. As much as I would like it to be an adequate and independent state law ground, I'm not sure I clearly. What do you make of the statement on 175 as a preliminary matter? This court notes that as cited by the respondent, the following claims are not reviewable based on the doctrine of raised you to cut a. And the first one it lists is the bats in claim. Does that suggest maybe the court had two reasons for what it did? It's barred by raised you to cut a and it would fail even if it were not. No, but that? Well, I'd like the count. I'm sorry. Sorry

. Now, that's both Alito's question. It's what I think is the hardest point for you to overcome, and I want to hear your response. I actually agree that it's unclear. I think that's the end of it, isn't it? It is the end of it. I think it's unclear. One other issue. What do you think is Georgia raised you to cut a law? I think in Georgia, if you have new facts or new evidence, the rest of you to cut a goes out the window. Then the court gets to look at the issue and go beyond. And I think in this case, once you have new facts or new evidence, if the court, and in this case, finds that they can review the evidence of new and a new review is hired, then I think you are beyond that bar. I don't understand what you've just said. Save again. Okay. If the issue has been decided on direct appeal, and then you cannot go back to it. A spear court obviously can't overturn the state's highest court. But when you have new evidence such as in this case, and it is strong evidence that the court feels like it has to go, it has to look at that evidence. In this case, it did. Then I think you will be on the raised you to cut a bar. I mean, I think that that's exactly how the decision is framed, right? Because the decision talks about claims that are not reviewable due to raised you to cut a. It lists many, many, many claims. And then it lists a whole bunch of claims that are procedurally defaulted. And then this is in a separate section, the bats in issue, and it's in a section that's with all the other claims that there were merits determinations being made about. And the court is very clear. First sentence, last sentence, first sentence, the court finds the prosecution did not violate bats and versus Kentucky. Last sentence, on the merits, the person, the petitioner loses. So as much as I would like it. As much as I would like it to be an adequate and independent state law ground, I'm not sure I clearly. What do you make of the statement on 175 as a preliminary matter? This court notes that as cited by the respondent, the following claims are not reviewable based on the doctrine of raised you to cut a. And the first one it lists is the bats in claim. Does that suggest maybe the court had two reasons for what it did? It's barred by raised you to cut a and it would fail even if it were not. No, but that? Well, I'd like the count. I'm sorry. Sorry. Yes, I think if anything, it is an alternate ruling. But does in Georgia have the rule Georgia Supreme Court has said. Georgia law allows claims to be revisited on habeas when new facts have developed since the time of the direct appeal because a claim that is based on facts that did not actually exist at the time of the direct appeal, which is this case, is essentially a different claim. That's what the Georgia Supreme Court said. Yes. New facts is essentially a different claim. Yes, Your Honor. It may be right or wrong as a matter of inclusion law, but that's the law of Georgia. That is the law. Thank you, counsel. Thank you. Mr. Bright, you have two minutes remaining. Thank you very quickly. Let me first say that with regard to what Justice Alito quoted that it has just come to our attention since the trial of the case that Ms. Garrett, Cousin, was arrested. That was on May 1st. That was after the death verdict had been returned in this case. Secondly, if you look at the Joint Appendix on page 56 and 57 where they give the reasons for striking Ms. Garrett, there's no mention of her cousin whatsoever in there. That's the time when she should have been mentioned after the strikes were made. And yet there's no mention of that at all. So I don't think there's any way. And then six months later, there's a motion for new trial. And now the prosecution is adding new reasons that it didn't give at the batson hearing. It's saying she was a social worker. She wasn't a social worker. It's saying her cousin was arrested. They didn't know that at the time they struck the jury. They said she's low income, taking another thing out of a United States versus Carlage. But you can't add reasons on into perpetuity. The reasons of the reasons articulated in Miller, Nebraska's got a standard fall on the reasons

. Yes, I think if anything, it is an alternate ruling. But does in Georgia have the rule Georgia Supreme Court has said. Georgia law allows claims to be revisited on habeas when new facts have developed since the time of the direct appeal because a claim that is based on facts that did not actually exist at the time of the direct appeal, which is this case, is essentially a different claim. That's what the Georgia Supreme Court said. Yes. New facts is essentially a different claim. Yes, Your Honor. It may be right or wrong as a matter of inclusion law, but that's the law of Georgia. That is the law. Thank you, counsel. Thank you. Mr. Bright, you have two minutes remaining. Thank you very quickly. Let me first say that with regard to what Justice Alito quoted that it has just come to our attention since the trial of the case that Ms. Garrett, Cousin, was arrested. That was on May 1st. That was after the death verdict had been returned in this case. Secondly, if you look at the Joint Appendix on page 56 and 57 where they give the reasons for striking Ms. Garrett, there's no mention of her cousin whatsoever in there. That's the time when she should have been mentioned after the strikes were made. And yet there's no mention of that at all. So I don't think there's any way. And then six months later, there's a motion for new trial. And now the prosecution is adding new reasons that it didn't give at the batson hearing. It's saying she was a social worker. She wasn't a social worker. It's saying her cousin was arrested. They didn't know that at the time they struck the jury. They said she's low income, taking another thing out of a United States versus Carlage. But you can't add reasons on into perpetuity. The reasons of the reasons articulated in Miller, Nebraska's got a standard fall on the reasons. With regard to the questions, I just want to make one quick point on that because there's not much time. But with regard to Ms. Garrett and Martha Duncan, who were both teachers' aids, who were at schools that were literally right in the same neighborhood. Ms. Duncan had kindergarten students, Ms. Garrett was head start. No questions. What kind of children do you have? Ms. Duncan. I mean, Ms. Duncan, if you look at the, they also said familiarity with the neighborhood. Ms. Garrett lived like 18 or 20 miles away. Ms. Duncan lived 200, her school was 250 yards away. And she lived a half mile from the school. Both of them answered that they weren't familiar with the area where the victim lived. Now, there have been some more questions after those answers would have provided a difference. But instead, Ms. Garrett is treated as a liar. And Ms. Duncan is accepted and actually serves as a juror in this case. And there are other examples with Mr. Hood particularly with regard to the child. If you had asked, what about your child who's arrested? He was put on probation, he was $180 of, can I have just a second? Well, $180 restitution, and he went off to the, this in the record, went off to the Navy, served this country honorably. Got an honorable discharge and came back. Thank you, counsel. The case is submitted.

We will hear argument first this morning in case 148349, Foster versus Chapman. Mr. Bright. Mr. Chief Justice, in May, please the Court, the prosecutors in this case came to court on the morning of jury selection to determine to strike all the black perspective jurors. Mr. Bright, maybe you could address first the question we raised on Friday with respect to which court, the searcher area I should be directed to. Yes, Your Honor. We filed this petition originally, searcher area to the Supreme Court of Georgia. And of course, this court in Sears versus Upton had issued searcher area, this is in 2010 to the Supreme Court of George in a similar situation. It appears to us from looking at this over the weekend that RJ Reynolds, tobacco company versus Durham County, which the Court decided in 1986, the Court said that unless there was positive assurance that the decision was not a ruling on the merits, then the writ went to the State Supreme Court. And the Georgia Court, while it has rules and statutes and its own opinions that are not totally in harmony with one another, the rule nonetheless is that a certificate of problem pause, which is what was denied in this case, is to be granted if there is arguable merit to the case. Do you think that affects the scope of our review? In other words, are we addressing just whether there is arguable merit to the claim or we addressing the claim on its own merits? I think what this Court has done in all these cases is apply Yields versus Nunamek, or to look through to the last reasoned decision. And that would be the decision of the habeas corpus court. In Georgia, typically the habeas court rules, an application is made for certificate of problem cause to the Georgia Supreme Court, and that is often denied summarily. It is denied summarily, as it was in this case. You really don't understand that. You say we would be reversing the Georgia Supreme Court, not the habeas court, right? And all that the Georgia Supreme Court held is that there is that there was no arguable basis for its accepting review. So if we reverse that decision, we tell the Georgia Supreme Court, you're wrong. There is an arguable basis for your 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, that's what happened in Archea Reynolds. I mean, there you had almost identical situation where you had an intermediate appellate court that had ruled, and then you had the North Carolina Supreme Court denied review. And the question was, do you issue the writ to the intermediate appellate court or to the North Carolina Supreme Court? And this court decided, and Justice Blackwell 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. There is no difference in our situation here in the situation that Archea Reynolds was saying. But you're saying in that case or in other cases, and if so, which other cases, that in that situation we nonetheless addressed the reasoning of the intermediate court, is that what you're saying? You did in Sirius V. Up in case out of Georgia, 5.61 U.S. Fort 945 in 2010, that was Sertiorari to the Supreme Court of Georgia, but it came up in exactly the same posture of Archea. Is there an argument that the petition for Sertiorari could go to the trial court? I mean, our statute says it goes to the IAS Court in which review could have been had, I think, as the State Treasury, which sounds like the Georgia Supreme Court. On the other hand, as Justice Scalia said that he haven't really directed their attention to the issues before us. It's not sure to me that it's an option to go to the, to the Georgia trial court. Or is that incorrect? Well, what this Court has said, both in the Archea Reynolds case, and then that was followed in Grady versus North Carolina last 2015 case this year, in which once again there was an intermediate court decision denied by the North Carolina Supreme Court. I mean, I can't remember all the way back to 1960. There was Thompson versus Louisville, where Sertiorari was to the police court in Louisville Kentucky, because no court in Kentucky could take the case because the fine was less than $20. But I think these cases, much more recent, decided by the Court 1986 in this year. You're putting together two rules that you say we've established. One is Justice Blackman said to end the conclusion 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 denied nothing more than denied, we look back to the last reasoned decision. Those are both decisions of this Court and that's what you're relying on. Well, and they're not mutually exclusive. This Court can look back through to the last reasoned decision in making its decision in this case, and I believe that's what it should do. But at the same time, the Court's opinions appear to us on the quick research we did over the weekend on this, that RJ Reynolds and the subsequent case say that Sertiorari would issue to the George Supreme Court. And we listed it that way, and then when the case was docketed here, it was listed that the lower court was the Superior Court about its count. Now, what if the State Supreme Court wrote a very short opinion and said, we're not going to determine whether there was, in fact, the only issue we're going to determine is whether there's any arguable merit to this. And then you say that the whole issue of whether it was a correct application of batsons is the issue that we have to decide. I think in RJ Reynolds, I think that's the Scorched Law. Yes. Could I ask you another question about another preliminary issue before you get to the underlying question in the case. The Superior Court said on page 175 of the Joint Appendix that the issue of the batson violation was not reviewable based on the doctrine of race judicata. And then it later said, and this is 192 of the Joint Appendix, that it will review the batson claim as to whether petitioner has shown any change in the facts efficient to overcome the race judicata bar. Now, if you put those two together, you could argue that the Superior Court decided only a question of State law, namely whether the situation here was such that there could be review of the batson claim. What is your response to that? Well, the State doesn't argue that. And I think the reason for that is because the Court said the Court is going to dress step three of batson, and it said Fosters batson claim is without merit. Well, is it a question of Federal or State law as to whether or not the petitioner has shown a change in fact sufficient to overcome the race judicata bar? The page 192, the language that Justice Alito quoted, is that a State law question? Or a State law question? And here the Court decided it, but I would point out Justice. Well, if it's a State law question, they resolve it against you. What do you, then what do you have to argue? I don't know. I think it's a Federal question. No, in order to decide it, this is exactly like eight versus Oklahoma, where the Court, the Oklahoma Court had to decide the Federal question in order to decide whether it had jurisdiction over the issue. And this Court held an ache that where the Court has to decide the Federal issue, and it did in this case, it clearly decided the Federal issue and found that the batson claim had no merit. So it has decided the Federal issue, and there's no contest about that in the explain. Explain to me why deciding the Federal issue was essential to its deciding the State residue to cut an issue. Because it framed the question as being that it would look at the ache versus, excuse me, they would look at the batson versus Kentucky claim, and that if there was merit to that claim, then the Court would grant the red on it. On the other hand, if it found that there was not merit on it, then you think it was saying whether there's a residue to cut it or not depends on whether a new claim has any merit? I think it's a very strange application of residue to cut it seems to me. Well, I thought it was whether there were changed facts sufficient enough. Well, the Georgia Law is that you can bring an issue that's been litigated already before direct appeal in habeas if there are. Even if it would, you know, produce a different result, right? Right. If the facts are such that it would produce a different result. Right. But did the Court in your judgment do the novel review? I didn't say that it did, basically, it was going to do step three of the batson chart. Yes, that's exactly what the Court said. Yes. And so that's a ruling on the merits. I think it's, I think the Court said the batson claim is without merit. That seems like a ruling on the merits to me. Well, I think it said after to do, after redoing. After considering these other facts. And we think there were some legal errors made there, but yes, after considering these facts, the Court said that the claim was without merit. The Court said that it would reach step three again on the basis of the new evidence presented. And so they did it all over. And I guess that's, we must take that as what happened. They did not apply a raise due to kind of bar. No. I mean, in eighth, this Court said, when the resolution of the State procedural law question depends upon a federal constitutional ruling, the State law prong is not independent of the federal claim. And this Court has jurisdiction. That's on page 75 of 475 United States. Well, I don't want to be labor of the point too much, but you are arguing that Georgia raised you to kind of law is this. If someone comes up with any new fact, the, the, the smooth, the thinnest new fact, that is sufficient to wipe out the raised due to kind of bar and allow the Court to get to the merits of the claim. Is that your argument? That's your understanding of Georgia raised due to kind of law. And some matters to me are saying is the evidence has to be sufficient enough that the Court does what it did in this case and rule on the merits of the issue. And that's what happened here. This was not a matter of just adding one more leaf to the basket. And we really want you to get to the merits, but why is that a conjunction with the Justice Scalia question? Why is that issue of federal law? Well, because the Court decided that that's an issue to decide the underlying state law issue. And I think Aik is pretty clear on this. And I commend it to the Court's attention. We didn't, it wouldn't, since the State didn't raise this, either in their opposition to serve or in their brief, it's not brief before this Court. But I think that's the deciding case on this. Thanks, Kahn. So I think we have your argument on the point. Thank you. Okay. Thank you very much if I could just say what happened here was that the prosecutors had identified the African-Americans by race. They had raided them against each other. In case it came down to having to select a black juror. The prosecutor said the reason for concentrating on the black jurors was that you had informed them you would present a baton challenge. And therefore it was necessary for them to see if there was a race neutral ground for disqualifying. Two answers to that, Justice Ginsburg. I mean, what the lawyers did here. There's these lawyers that practice here for a long time in Rome, Georgia. They said the prosecutor always strikes all the blacks in the jury. That's been the historic practice. We think they're going to strike all the blacks in the jury in our case. But last year the Supreme Court of the United States decided bats and verses can tuck he and we asked the court not to let that happen in this case. Now, of course, if the prosecutors wanted to avoid a baton challenge, they could have not discriminated. That would have been the first thing to do. But secondly, with regard to the information that's collected here, it doesn't seem like it's information just to exercise strikes when they say if it comes down to having to take in African American, Ms. Harge or in another place, Ms. Garrett might be okay. And the district attorney himself said, Maryland Garrett has the most potential of the black prospective jurors. In other words, the blacks were taken out of the picture here. They were taken and dealt with separately. And over the weekend the jury's questioning ended on a Friday. And the judge said, all right, over the weekend you've got your chance to decide who you're going to strike. And you knew exactly who they're going to strike because the jurors are listed in order. And the state goes first, and if it accepts the jurors, and the state accepts, and that jurors on, there's no going back. There's no backstriking. There's no striking people here in there. They developed three strike lists. And one of those strike lists was a list headed definite notes. These are the people absolutely are not going to be on this jury. There are only six jurors listed on the list of definite notes. And the first five are African Americans. The sixth is a juror who made clear during the Waddeer process that she could not impose the death penalty under any circumstances. The state moved to strike her for cause. The judge probably aired in not granting that strike. But even she ranked behind the black jurors in terms of the priorities that the prosecution had for striking. At the time, Mr. Leneer said they weren't striking the jurors because of race. They were striking them because they were women. And I guess three out of the four African-Americans were who were struck were women. How does that and then that explanation has just kind of fallen out of the case. How does that affect the analysis? You did accept women, though, as well if, bare with him just a moment. Of course, I did not yet have the bats in applies to the court. The court had not yet held in J.E.B. that bats and applied to women. But the court did say in J.E.B. that, of course, it could be used as a pretext of women for striking on the basis of race. In this case, the prosecutor struck three white jurors and then he struck the three black jurors, women, the three black women and the three white women. The final. Mr. Leneer answered yes during the trial. When he was asked whether he had done, I don't know if it was on the motion for a 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 shirt? No, the only, what that's talking about and the investigator said this in his deposition was the color-race-coded color list, those first four lists you have in the joint appendix, in which the blacks are marked with a B and a highlighted in green with a marker up at the corner in green designated black. So, your understanding of that statement was that all he had only done an extensive search on the blacks on the list? Well, it's clear, Mr. Lundy had prepared a list of notes in which you talked about just the black jurors in the case. And I think the State concedes in its brief that the focus was on the black jurors. During the trial, did defense counsel when he made his initial bats in trial? It's not in the papers, but at trial. Did he again say that this was part and parcel of the prosecutor's pattern? He didn't say that, but I point this interesting thing out. When they discussed the bats in motion before trial, there was never a suggestion that there wouldn't be a bats in hearing. Everybody knew what was going to happen, that all the blacks would be struck, and then they'd have a hearing after that happened. But the defense had basically put their motion in writing and relied upon that throughout the jury. I was just surprised that we didn't hear about this preparation for a bats in hearing until the habeas. The defense lawyers at trial didn't move for the prosecution's notes, and the prosecution opposed that. They very strict and not give them their notes. Then when the prosecutor testified on the motion for new trial, he did something I've never seen a lawyer do before. He cut a bargain sort of with the judge and the lawyer saying, I will testify, but only if I don't have to show them my notes. I mean, basic rules of evidence are you testify and rely upon notes, the other side can see the notes. But here, these notes were guarded until 2006 when we obtained them through a freedom of information or what they call open record sacking in Georgia. The prosecutor said that you, they said we never, we never wrote, so authorized overlight on those notes. And you didn't call the prosecutor's attest the veracity of that assertion. But all the prosecutor talked about were the color highlighted notes. Each prosecutor filed an affidavit which are in the joint appendix at 168. And all they said was we didn't highlight it in green and we didn't tell anybody else to highlight it in green. And then Mr. Leneer says, and I don't have anything else to say beyond what I said at the bat's and hearing and the motion for new trial. Mr. Pullen said the only other thing he says is I didn't use those green highlighted lists in choosing the jury. But of course, that's just the first few pages. What's damning about this is not so much that, but the definite notes list, the misrepresentation to the trial court that Ms. Garrett, they wanted Ms. Garrett. That's what they told the trial court and the trial court relied upon that in denying the bats' motion that this showed their openness to having. Ms. Garrett was on the definite no list. She was on each of the strike lists. Ms. Garrett was never in the running to be on this jury, but they represented to the court that because another African American, Shirley Powell, was excused for cause. There were five African Americans in the near at the start when they got ready to struck the jury. But one said, turns out I know somebody in the family, she was excused for cause, and the prosecutor said it made it implied clearly that had it not been for that, that extra strike, that Ms. Garrett would have said. At the same time, and they're still arguing in this both ways that they both wanted her and didn't want her, they give 11 reasons for why Ms. Garrett would not be a good jury, that she's impudent and she doesn't respect the court. If you believe all the things they said about her, they would never want her as a jury. But those things I would submit are not really valid in terms of the reasons, because the reasons they gave here, many were demonstraily false and not supported by the evidence, including reasons they gave about Ms. Garrett. They were inconsistent, some were completely incredible, and they applied to white jurors, some of these reasons applied to white jurors who had the same characteristics as the African Americans who were struck. And then lastly, and what's so important under Miller-L, they didn't question the jurors about the reasons for striking. They gave reasons for striking, and one question would have cleared up some of these. And Miller-L says that the figure to engage in any meaningful voidier about whatever your reason is, is evidence suggesting that the explanation is a sham and a pretext. Mr. Brite, 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, that's enough to defeat a batson challenge. Do you believe that's an appropriate rule? Are you suggesting a different approach to the question? Well, I would suggest it can't possibly be, because this court said, and just as the leader of the opinion in Snyder versus Louisiana, that where the Prymptory strike was shown to have been motivated in some stanchial part by race, that it could not be sustained. And, excuse me, I would suggest you, it shouldn't even really say substantial, because if this court, as it said so many times, is engaged in unceasing efforts to enraged discrimination in the criminal courts, then strikes motivated by race cannot be tolerable. And, of course, it is pointed out here in the Miki. This is a serious problem, not just in this case, but in other cases where people come to court with their canned reasons and just read them off, that happened in this case, where one of the reasons that was given was just taken verbatim out of a report, or two of the reasons given, were 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 wasn't his personal preference, it was the personal preference of some US attorney in Mississippi, who gave that reason, and then it was upheld on appeal by the 5th Circuit. But, we would suggest that the standard is at least what Snyder says, because when you have both, you can always have, as Miller L. recognized. Well, in response to Justice Sotomayor's question, if the prosecutor argues a laundry list of reasons for striking the black cure, and some of those are reasonable and some are implausible, how should the court approach the bats in analysis? I think the Court looks at which reasons are protectional. I think the fact that there is a laundry list suggests in and of itself that the court should scrutinize the reasons very carefully, should be suspect of the reasons, because otherwise what the Court is going to do is just simply encourage prosecutors or any party in a case, since bats and applies to everyone, is going to encourage a party to just give as many reasons as possible and hope that one will be acceptable. And in this case. I think this is a case by case thing. Suppose there is one reason that's a killer reason. Like this individual has numerous prior felony convictions, all right, and then the prosecutor says in addition. And this person didn't, we looked down at the floor and answering the questions and didn't seem to pause and didn't seem to understand some of the questions. So under a circumstance like that, couldn't the Court say, well, there's one reason here that would, it is clearly a justification for a parrump to restrict. We don't have to determine whether there's evidence that the person was looking down at the floor. Well, of course, bats and says, in this subsequent case is say, you look at all relevant circumstances. It may be if all the circumstances that are there, the ones you said, then you would come to the conclusion that of those two reasons that there was a valid reason. But I would suggest that where you have, in addition like we have here, I mean, we have an arsenal of smoking guns in this case. A lot of those smoking guns were in the original decisions 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 the rest were not enough to demonstrate a bats and violation, the new smoking guns would tip the scale. Isn't that the issue that Georgia courts decided? When the new smoking gun tells you that the prosecutor misrepresented facts and gave reasons, there were absolutely faults, demonstrally false reasons. And those are not clear before. But you have that now. I mean, bats and turns on the feasibility of the reasons, it turns on the credibility. All I'm saying, and you seem to be agreeing, is that it is not the overall bats and judgements that's before us, but rather the judgment that the new evidence did not suffice to create a bats and violation where none existed before. Now, our position is that when you look at the new evidence with all the evidence of trial that all relevant circumstances considered together, considering that a lot of these reasons, we now know from the notes. We now know from the notes that there were misrepresentations with regard to these reasons. I mean, the Georgia Supreme Court, just as an example, Justice Scalia, upheld the strike of Ms. Garrett on two basis that she was a social worker and that her cousin had been arrested for drugs. She was not a social worker, and secondly, the prosecutor didn't find out until after trial about her cousin's arrest, so it couldn't have possibly been a reason for the strike. So, the- You're saying an answer to Justice Scalia that when you had the notes, those notes cast doubt on some of the prosecutor's justifications in the first round. They do that, and they show misrepresentations to the Court, and they show an overarching goal of separating out the African-American citizens, treating them differently, and then putting them on this list of definite notes. And, Mr. Brite, just to make sure I understand all the notes in the prosecutor's files were new. Is that right? No, noot in this case, yes. And there were three people that just involved the two prosecutors and the investigator who put those together. I'd like to reserve the balance of my time. Thank you, counsel. Mr. Burton? Mr. Chief Justice, and may it please the Court, I'll be there two important factors in this case when reviewing the entirety of the evidence. One is Petitioner Bears, the burden of establishing clear-to-earth. I ask you as well to address the search-or-rary question first. And, and, and, respectfully, I disagree with Petitioner's counsel on this issue. I believe Norfolk, Western Railway versus Hiles, which is this Court's opinion, indicates that or states that if there is an issue raised in the lower court, and it is raised in the State's highest court, in this case, the George Supreme Court, but the George Supreme Court denies discretionary review, then it is before this Court on search-or-rary from the lower court. So the problem is, I don't think this is discretionary review. The 11th Circuit found it's not under Georgia law. Read its opinion, it seems pretty grounded in the State at law of Georgia. Yes, Your Honor. And that is a, that's a pretty hot button issue I know right now in the State Federal Court in Georgia, but our position in that, in that those cases, and in, I think, there's a case before this Court on rehearing on that same issue, is that Georgia statute, the Georgia statute specifically says that is a discretionary appeal. The 1975 Haviest Corpus Act made it a discretionary appeal, I think, because the George Supreme Court was just getting inundated with appeal after appeal. And has the Georgia Supreme Court ever said anything one way or the other is to whether it's discretionary or not? In two of their cases, Reed versus Hopper, which is 219, South Eastern Second, 409, and Smith versus Nichols, which is 270, South Eastern Second, 550, 1999, they both state those as discretionary. But they have not, they have not, sort of, a certified question on that issue. Could you give me the Reed versus would? Yes, Your Honor. 219, South Eastern Second, 409. That's a 1975 case. Are certified questions available in Georgia? Could we certify a question to the Georgia Supreme Court? I believe you can, Your Honor. You did. I looked at the statute. The statute says in a Haviest case, state Haviest, that the Georgia Supreme Court must review it. It says it must review it unless it's without merit. I forget the exact words I was looking for in the. In State Haviest, I think it's 914-52. It takes state Haviest cases out of other appellate review and makes that just discretionary. The Georgia Supreme Court- Well, I've been looking at the wrong place. You heard, your brother here say, he quoted some words. I don't remember the exact words, but they were exactly what I'd read, and it was from a statute in Georgia. And the statute said, I just can't find it in my book here. Sorry. The Georgia statute said they shall review the case unless it's without merit, something like that. Does that ring a bell? Well, there is. Is it ring a bell, what I'm saying? It does ring a bell. What are the exact words? I do not know the exact words, but I believe the- The exact words are that a certificate of probable cause will be issued when there is arguable merit. Yeah. That's it. But I believe that's rule 36 of the Georgia Supreme Court. I think it's 914-52. I hope there have been compliance with that, right? Okay. Does that govern this case? I believe the statute would trump this. Does the word that the chief justice just read from Georgia law govern this case? The answer is yes or no? I believe it's to do- I do not govern this case. I believe this is- What in your opinion is the Georgia statute that says that those words you just held do not govern this case? I believe it's 914- I'm certainly open to correction. 914-52 states that state habeas is taken out of other appeals, which are normally directly appeals, or prisoner appeals, and they are discretionary. Okay. I suppose that that a court could have discretionary view, but could provide by rule that in the exercise of our discretion we will grant any of these unless it's patently wrong. Could- Maybe that's what's happened here. And if you use your discretion to enact a rule which says you will take cases of a certain court, does the taking of those cases still remain discretionary? That's a nice question, isn't it? I think the taking of the case does remain discretionary if they find it has argument is discretionary, and the two cases outside it specifically reference. You have just decided that you will uniformly exercise your discretion in a certain way. Correct. But maybe I'm misunderstanding what you're saying. You're saying there is no such uniform determination that they will exercise their discretion in a certain way, that they are insistent upon their discretion being discretionary. Is that correct? That is my understanding, because this law applies to not just, obviously, death-own-y cases, but the multitude of non-death-own-y cases. I'm sorry. I'm so confused I can't even. The State Havius process is different than the regular appeal process. That's correct. On the regular appeal process, they look at each case with discretion. On a direct appeal process, it, it, it, and certainly a capital case, it is mandatory review. Okay. In State Havius, they have a rule, an internal rule that says, will take every Havius case unless it has no arguable merit, right? If I may rephrase, I think the rule says that they will take a case if it has arguable merit. Do you believe that they will take a case? Do you believe that they will take a case if it has a arguable merit? Do you believe that they will take a case? I would never say they were too busy to take the case. I'm sorry. I would never say they were too, that would be their reason, but I think they would say, we've looked at this case, because they do have the records before them, and we do have the, we don't see arguable merit to take this case up for, so that is a decision on the merits. There's no arguable merits. I think it is a fun, there's no arguable merit to the application that there has been error below. Okay. If that makes it any clearer. Now it's clear. And in your view, search should have been granted to the Georgia Supreme Court? I believe it, I believe it should have been granted to the State Havius Court, because it wasn't that discretionary review, and because I believe that this Court has said in Michigan versus long, that if it's unclear, it comes from the State Havius Court. Can I just ask one more quick question about this? You made reference. This is an issue that's being litigated in the Georgia courts. Is that right in the 11th Circuit? That is correct. This precise issue. This is the issue. Thank you. Two. What issue was that? Is it the issue of which court the search for or I should be directed to? Well, it's the issue of what? What is the issue that is litigated? Am I right that the issue that's being litigated is whether the Supreme Court review in case it's like this is discretionary or not discretionary? That is correct. In those cases, obviously, it's coming up from Federal Court, so we're dealing more with Elst and Harington versus Richter. And a sort of a different scope of things in that regard. And this question is in both the Georgia Supreme Court and in the 11th Circuit. It is currently in the 11th Circuit. I don't believe we have a case pending now in the Georgia Supreme Court on that particular issue. But I do believe there is an issue up here in the case Jones versus Chapman, where they've asked for we hear. Do you think this would be an appropriate case for us to exercise our discretion to certify the question to the Supreme Court? We would certainly like an answer from the Supreme Court on that issue. I think the 11th Circuit would like that as well. I think it would clear up both State and Federal law for a number of things. There's a statute that permits the Georgia Supreme Court to accept certified questions. Do you know anything about the history of request for certification? Some states have such a process, but the State Supreme Court rejects the question. I do not, you're not apologize. What if we hold in this case that it is not discretionary review, and then in these cases that are pending the Georgia Supreme Court says it is discretionary review? Who wins? Is it ultimately a question for us or for the Georgia Supreme Court? I think it's ultimately a question for the George Supreme Court as to what their law is, what the State law is. Why? Me too. Can I go to the merits? Is that all right? Sure. Okay. Unless other people? Okay. Look, 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 perspective jurors as a group that they had basically said we don't want any of these people. Here's the one we want if we really have to take one, but that they're the all the evidence suggests a kind of singling out, which is the very antithesis of the bats in rule. So, you know, I mean, but isn't this is, I'm just going to ask you, isn't this is clear about some violation as a court is ever going to see? I don't think it is. And I think because these notes that we have, they don't undermine any of the findings that were given by the prosecutor in his strikes, particularly of Mr. Hood and Miss Garrett. They certainly can be interpreted in two ways in our response briefed to this court. We don't know, when we say, you know, this is why these highlights are there. There is a reasonable explanation just as Mr. Foster is given speculation of his arguments. We don't know. But when they're- What's the reasonable explanation? The reasonable explanation in this case is four months prior to trial, as was previously argued, bats and had just come out bats and his new four months prior to trial, defense counsel files a motion and says the strike of any black juror were filing a bats and challenge. Two weeks prior to trial, he says he files a motion and says, there's racial disparity in 179 jurors. And that's the- that's the list that's challenged, the 179. There's racial disparity of black prospective jurors on that list. The day of trial, he refiles that. So, I would be more surprised, quite frankly, if there wasn't some sort of highlighting, or- In other words, the argument you're making here is that- That- If not, is that the reason he highlighted all the black jurors in green and said, black, what about the black jurors? And all these different things was because he was preparing a defense in case of a bats and challenge. Correct. All right. Now, if that's correct, why is this the- Is this argument made before your main brief in this case? And it was not- It was not. And that's- It was not. So, if that had been his real reason, why isn't it a little surprising that he never thought of it, or didn't tell anybody? Until you raised this argument in your main brief? And- And I would- I would say that's on State Habiest Council. We relied on our race to Cotta Bar throughout State Habiest, and then after that, basically defended the factual findings of the State Habiest. All right. It seems to me you have two arguments. One is this argument that he never thought of apparently, at least never thought to tell you until quite recently, and the other after years. And so, it's hard to believe that's his real reason. And then there's a second argument that he had about 40 different reasons. And at least some of them could be valid. Okay. Now, if my grandson tells me, I don't want to watch- I don't want to do my homework tonight at 7, because I'm just so tired. And besides, I promised my friend I'd play basketball. And besides that, there's a great program on television. And besides that, you know, I really- My stomach's upset, but I want to eat spaghetti. And so, he's now given me five different reasons. But what do I think of those reasons? Well, in this case, and again, I think this is- One may be valid. Correct. And the other ones also may be- Which one? Well, they all may be valid, but they all may not be as strong as the first one. But in this case, I think the important part- Well, wait, the point is he gave 40 different reasons. And the very fact that he gives 40 different reasons, and many of them are self-contradictory, obviously not applicable, totally different from, you know, that's why I use my grandchild's analogy. All right? And so, I would say my answer to my grandchild is, look, you're not too tired to do your homework. And I think any reasonable person looking at this would say, no. His reason was a purpose to discriminate on the basis of race. Now, tell me why I'm wrong. I think because you have to look at the time period this was done. This was done not, you know, a year after Batson came out. And even throughout the transcript, people, the Defense Council, and the prosecutor says, we don't really know where Batson's going. So in this case, the prosecutor dealing with Batson for the first time- The first time in history anybody has had to put strikes on the record- But he's simply wrong. He puts down if it comes- It comes down to having to pick one of the blackers, was it Miss Garrett might be okay. And that's Mr. Lund, that's the best thing. Well, but that seems to me to undercut the argument, well, they're just feeding their way and so forth. They've misstaken Batson. Sure, it was new, but they're wrong. Well, first let me say, I think that's why there was a laundry list because he was just espousing every reason he had. But with regard to Mr. Lund, he's notes, and that was the investigator who says, if we have to choose a black juror, she may be the best one. Who is responsible for the definite no list? The definite no list. Nobody, the only person that was asked about that was Mr. Lund, who was deposed and said he could not identify who wrote that list. So we don't- There are only three possible choices. We know it came from the DA's office. And it exists, that's the sacred existence, is definite no. Correct. And I don't think that is- I don't think that was a ranking of jurors because when you look, they did scorers throughout. But they were five African-American jurors on the definite- Well, and one of them was Jarrett. This, as was pointed out, they said, we have to have one. Let it be Jarrett. But Jarrett then chose up on the definite no list. Correct. And- Or we told that the only three people who did the investigation on Batson were the two prosecutors on the case in Mr. Lund. So if Mr. Lund says, I didn't make that list, it has to be one of the two prosecutors. It has to be one of the two prosecutors. And one was not there on the day it was struck. The jury was struck. Only Mr. Lund near was. But if that's not Mr. Lund near's thought process of this definite no list, and I don't see that that gets you to clear error in the striking of Mr. Hood or Mr. Garrett. What do you do with other, it just seems an out and out false statement. The reason that's given one of the reasons for Jarrett being struck is that her cousin was arrested. But then in the prosecutor doesn't know that at the time of the wanted. He doesn't know until after the wanted that the cousin was arrested. So how could it possibly be a reason at the time of the wanted? And I don't think the record bears that out. These note, the highlighted notes that Petitian wants to say, these were used during Vaudier, these were used during the strikes. In those notes, and this is that Joint Appendix, page 256, Angela is written out beside Mr. Garrett's name. In Mr. Lund, he's notes where he said he wrote down things he knew prior to the strikes, prior to what he knew about individual jurors. He wrote down, as to Marilyn Garrett, Angela Garrett is a cousin. So, and then Mr. Lund, here, test the right. The behavior court provided an excuse to say, I'm sorry, no, let's see. Didn't the habeas court say, except that he didn't know at the time of trial? He just knew that Lund didn't want her. The habeas court actually credited the fact that Mr. Lund had advised trial counsel that Angela Garrett should be struck. That was his explanation for why the prosecutor didn't know about the prior arrest, correct? No, I think the State habeas court credited that as one of the facts at the strike. And Mr. Lund did not want her. Excuse me, I'm sorry. That Mr. Lund did not want her. He never credited or never said that he knew this, that he knew about the arrest. Mr. actually, Mr. Lund, he testified twice though that he was aware at the time of jury selection that he knew about. Mr. Lund did, but the prosecutor didn't. Well, no. In the motion of due trial, Mr. Lund, the prosecutor testified and said, I knew during Voidier, Mr. Lund told me that. That said, join appendix 105 and 112. Did he also testify, this is on 14 of the reply brief, it has come to our attention since the trial of this case that Angela Garrett was arrested? It says on that in the page of the transcript, which I cannot explain to you in contrast to in the notes, it is noted that she is the cousin prior to the jury selection. Unless that means, and I've read it several times, since that time she's been dismissed from her job. Again, it's unclear as to what about the giving a reason for dismissing her that she was close in age to the defendant? When in a- She was in her 30s, he was 18 or 19. And when he initially strikes, when Mr. Lund here initially explains his strikes, he does state her age. So he is not trying to say she's 23 or he states her age is 34. And throughout the overall theme was, we don't want younger jurors. We're looking for older jurors closer to the age of the victim age 79. So I think, you know, maybe the Martin-no, it's not the most articulate framing of it, but I think it's more of a generational she was younger. And that, the age, I don't think, was a make or break factor. Working at head start with underprivileged children, a make or break factor, a similarly situated whiteger also struck for that same purpose. But Ms. Burton, I mean, wouldn't you agree? In a lot of these bats in cases, you'll have reported justifications, which they could support a valid preemptory strike, right? But the question for a court is, well, but did they support this valid preemptory strike? In other words, what was the prosecutor thinking? Batzen is a rule about purposeful discrimination, about intent. And so it doesn't really matter that there might have been a bunch of valid reasons out there if it was clear that the prosecutor was thinking about race. You agree with that, right? I think if this intent was to strike based on race. Yeah, if it isn't done with the strike based on race, it doesn't matter that he could have had a different intent that would have supported a good preemptory strike. And so the question of whether someone or other might have been properly struck by a prosecutor isn't really the question. The question is on the total amount of evidence before us, including all these prosecutors and notes, what was going on with respect to each of these preemptory strikes. And then you have to deal with not just, oh, it could have been this or it could have been that, but you have to deal with all this information that what it really was was, they wanted to get the black people off the jury. And I don't think these notes show that. What the notes show, again, with Mr. Hood and Mr. Garrett, that their contemporaneous notes taken at the time of trial as to each of these jurors are the reasons they struck them. I mean, there's no derogatory comments within those notes. Where there are, you know, other reasons that are plausible but could be phony. Surely it's the judge that hears the testimony who's best able to judge whether asserted reasons or phony reasons are not. Isn't that right? Yes, sir. And I don't believe that. Sort of hard for us to do it on a cold record. I mean, it's harder. It's harder, not impossible, but. It just, obviously, it raises, of course, a very good point in the mind-run of cases, but not in a case where all the evidence of intentional discrimination was not before the judge at the time. And again, I don't think there's, I don't think there's clear error here on these notes of racial discrimination. Their strikes are sound. As to Mr. Hood, you would not want Mr. Hood on the jury regardless of his race based on his reasons. The reason that he gives a laundry list, like I said, may well have been because we were in 1987 and you're just putting out everything you can because you're not exactly sure what you're supposed to do. Well, we're in the notes turned over earlier. The notes were not turned over earlier, although it was brought up in the motion for new trial in November, right after the trial in 1987. And the prosecutor, Mr. Lanier, says, I will give my notes to the court to look at in bank if defense counsel will do the same. Defense counsel chose not to do so. That issue was raised on appeal to the George Supreme Court, Direct Appeal. The George Court, George Supreme Court found it was work product. It didn't have to be turned over. When we got to State habeas proceedings, they found an open records request under Georgia law. And they were immediately turned over. I don't think there was any argument about it at that point. What would you do with the failure to ask Ms. Garrett any questions about the issues that troubled the troubled, for example, her cousins arrest. There's an assumption that she has a relationship with this cousin. I have cousins who I know have been arrested, but I have no idea where they're in jail. I hardly, I don't know them. So, but he didn't ask any questions. Doesn't that show pretext? I don't, I'm not going to inquire because she might get off the hook on that. Well, I think a number of times, and I know this Court's precedent on not asking questions, is particularly in Vodere as people, but as to a number of issues, I think when you're in Vodere and you're asking questions, you don't necessarily care what the answer is. Because with regard to Mr. Hood, if he had said, yes, I have a son that's been arrested, it's not going to bother me a bit that you prosecute him, my son. And he may be. Stealing hookpaps in my mind is decidedly different than murdering people or attacking them the way this case was about. I can imagine a fault. Why can't you imagine a father saying it was stealing hookpaps? And he should have been punished. And he may well have it, but it's a risk. I don't, the prosecutor. That's when the record supports. Well, it's a risk the prosecutor didn't have to take. If you have somebody, as I said, Mr. Hood could very well have said that, very well have met that, never have been lying, but in my mind, I'm thinking he's going to get back there and he's going to think, I don't know about that. I want to ask you a different question before your time is up. And I'd like you to respond to the question that Justice Alito initially asked. Okay. And that is, is there an independent state ground here? Now, you're familiar with the record, and I read on page 192 of your record, the decision. And the first paragraph supports the view that you would like to hold, I think, that this is based upon Race, Judicolor, which is a state matter. And then there is the paragraph that was read to on page 195 and 196, where the judge says, the reason that I reach that conclusion is because the note that Justice Alito's and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race was the basis. Okay. That sounds like Batson to me. And then he goes on to say, and in addition, there is no good reason given now or then. And then he concludes, accordingly, the Court finds the renewed Batson claim is without merit. So if I read just that paragraph, I would think the reason that the judge found in your favor is he decided the Batson claim in your favor. He didn't have to. He could have gone on some other ground, but that's the ground he did go on. But at worst, why isn't it ambiguous? And if it is ambiguous, then why don't we take, you know, I think it's what's long, you know, all those cases. If it's ambiguous, then aren't we required to assume that the judge went on the federal ground? Okay. Now, that's both Alito's question. It's what I think is the hardest point for you to overcome, and I want to hear your response. I actually agree that it's unclear. I think that's the end of it, isn't it? It is the end of it. I think it's unclear. One other issue. What do you think is Georgia raised you to cut a law? I think in Georgia, if you have new facts or new evidence, the rest of you to cut a goes out the window. Then the court gets to look at the issue and go beyond. And I think in this case, once you have new facts or new evidence, if the court, and in this case, finds that they can review the evidence of new and a new review is hired, then I think you are beyond that bar. I don't understand what you've just said. Save again. Okay. If the issue has been decided on direct appeal, and then you cannot go back to it. A spear court obviously can't overturn the state's highest court. But when you have new evidence such as in this case, and it is strong evidence that the court feels like it has to go, it has to look at that evidence. In this case, it did. Then I think you will be on the raised you to cut a bar. I mean, I think that that's exactly how the decision is framed, right? Because the decision talks about claims that are not reviewable due to raised you to cut a. It lists many, many, many claims. And then it lists a whole bunch of claims that are procedurally defaulted. And then this is in a separate section, the bats in issue, and it's in a section that's with all the other claims that there were merits determinations being made about. And the court is very clear. First sentence, last sentence, first sentence, the court finds the prosecution did not violate bats and versus Kentucky. Last sentence, on the merits, the person, the petitioner loses. So as much as I would like it. As much as I would like it to be an adequate and independent state law ground, I'm not sure I clearly. What do you make of the statement on 175 as a preliminary matter? This court notes that as cited by the respondent, the following claims are not reviewable based on the doctrine of raised you to cut a. And the first one it lists is the bats in claim. Does that suggest maybe the court had two reasons for what it did? It's barred by raised you to cut a and it would fail even if it were not. No, but that? Well, I'd like the count. I'm sorry. Sorry. Yes, I think if anything, it is an alternate ruling. But does in Georgia have the rule Georgia Supreme Court has said. Georgia law allows claims to be revisited on habeas when new facts have developed since the time of the direct appeal because a claim that is based on facts that did not actually exist at the time of the direct appeal, which is this case, is essentially a different claim. That's what the Georgia Supreme Court said. Yes. New facts is essentially a different claim. Yes, Your Honor. It may be right or wrong as a matter of inclusion law, but that's the law of Georgia. That is the law. Thank you, counsel. Thank you. Mr. Bright, you have two minutes remaining. Thank you very quickly. Let me first say that with regard to what Justice Alito quoted that it has just come to our attention since the trial of the case that Ms. Garrett, Cousin, was arrested. That was on May 1st. That was after the death verdict had been returned in this case. Secondly, if you look at the Joint Appendix on page 56 and 57 where they give the reasons for striking Ms. Garrett, there's no mention of her cousin whatsoever in there. That's the time when she should have been mentioned after the strikes were made. And yet there's no mention of that at all. So I don't think there's any way. And then six months later, there's a motion for new trial. And now the prosecution is adding new reasons that it didn't give at the batson hearing. It's saying she was a social worker. She wasn't a social worker. It's saying her cousin was arrested. They didn't know that at the time they struck the jury. They said she's low income, taking another thing out of a United States versus Carlage. But you can't add reasons on into perpetuity. The reasons of the reasons articulated in Miller, Nebraska's got a standard fall on the reasons. With regard to the questions, I just want to make one quick point on that because there's not much time. But with regard to Ms. Garrett and Martha Duncan, who were both teachers' aids, who were at schools that were literally right in the same neighborhood. Ms. Duncan had kindergarten students, Ms. Garrett was head start. No questions. What kind of children do you have? Ms. Duncan. I mean, Ms. Duncan, if you look at the, they also said familiarity with the neighborhood. Ms. Garrett lived like 18 or 20 miles away. Ms. Duncan lived 200, her school was 250 yards away. And she lived a half mile from the school. Both of them answered that they weren't familiar with the area where the victim lived. Now, there have been some more questions after those answers would have provided a difference. But instead, Ms. Garrett is treated as a liar. And Ms. Duncan is accepted and actually serves as a juror in this case. And there are other examples with Mr. Hood particularly with regard to the child. If you had asked, what about your child who's arrested? He was put on probation, he was $180 of, can I have just a second? Well, $180 restitution, and he went off to the, this in the record, went off to the Navy, served this country honorably. Got an honorable discharge and came back. Thank you, counsel. The case is submitted