we'll hear argument first this morning in case fourteen eighty three forty nine foster versus chapman mr bright mr chief justice in may it please the court the prosecutors in this case came to court on the morning of jury in a similar situation it appears to us from looking at this over the weekend that r j reynolds tobacco company versus durham county which the court decided and eight in one thousand nine hundred six the court said that unless there was positive assurance that the decision was not a ruling on the merits than 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 and harmony with one another the rule nonetheless is that a certificate of probably cause which is what was denied in this case is to be granted if there is arguable merit to the case you think that affects the scope of our review in other words are we addressing just whether there's 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 your sources newmaker that look through to the last reasoned decision and that would be the decision of the heaviest corpus court in georgia typically the a b s court rules an application is made for certificate   and all that the georgia supreme court held is that there there is that there was no arguable basis for for its accepting review so if we first that decision we told the georgia supreme court your long there is an arguable basis for your accepting review so we ought to remain to that court requiring them to accept review it would seem to me 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 blackmun 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 is no difference in our situation here and a situation that r j reynolds would figure saying in that case or in other cases and if so which other cases that in that situation we nonetheless address the reasoning of the intermediate court is what you're saying you did in serious versus up in a case out of georgia five sixty one u s forty nine forty five in two thousand and ten that was certain right of the supreme court  georgia but it came up in exactly the same posture of our arcade is there an argument that the petition for certiorari could go to the trial court i mean our statute says it goes to the highest court in which review option to go to the superior to the georgia trial court or limit or is that incorrect well what this court has said both in the r j reynolds case and then that was followed and brady versus north carolina last year two there was thompson versus louisville where search a right was to the police court in louisville kentucky because no court in kentucky could take the case because the fine was less than twenty dollars but i think these cases much more recent decided by the court  and we listed it that way and then when the case was docketed here it was listed at the lower court was this a peer court about scott 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 bad science is the issue that we have to decide i think r j reynolds i think that can i ask another question about another preliminary issue before you get to that the underlying question in the case the superior court said on page one seventy five of the joint appendix  that the issue of the bateson violation was not reviewable based on the doctrine of race judicata and then it later sad and this is one ninety two of the joint appendix that it will review the batson claim as to whether petitioner has shown any change in the facts of fission 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 bateson claim what is your response to that well the state doesn't argue that and i think the reason for oklahoma court had to decide the federal question in order to decide whether it had jurisdiction over the issue and this court held in a way that where the court has to decide the federal issue and it did in this case it clearly decided the federal issue and felt that found that the bats and plame had no merit so it is decided the federal issue and there's no contest about that explain to me why deciding the federal issue was essential to i if there was merit to that point then the court would grant the writ on it on the other hand if it found that there was not married on it then you think it was seeing whether there's ritu to connor or not depends on whether can bring an issue that's been litigated already before any direct appeal right in a b s if there are you can even write even if it would you know produce a different result right if if the facts are such that it would produce a again on the basis of the new evidence presented here and so they did it all over and i guess that's the mistake that and what happened they did not apply a time no i mean an eight this court said when the resolution of the state proceed to a look question depends upon a federal constitutional ruling the state law prong is not independent of the federal c n and this court has jurisdiction and it's on page seventy five of four seven united states i don't want to belabor the point too much but you are you arguing that georgia race to the caught a lot is this if someone comes up with any new fact the the smoke the thinnest new fact that is sufficient to wipe out the race judicata bar and allow the court to get to the merits of the claim is that your argument that your understanding of georgia 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 to the bass and we really wanted to get to the merits but why is that well senate with justice scalia question why is that issue of federal law because the court decided batson issue to decide the underlying state law issue and i think it is pretty clear in this  and i committed to the court's attention we didn't since the stated raise this either in their opposition to search or in the brief it's not briefed before this court but i think that's the deciding case on this thanks consul i think we have your argument on the point thank you ok thank you very much if i could just say what happened here was that the prosecutors had a dinner if i had the african americans by race they had rated them against each other in case it came down to having to select always strikes all the blacks on the jury that's been the historic practice we think they're going to strike all the backs of the jury in our case but last year the supreme court in states decided that some versus kentucky and we asked the court not to let that happen in this case information just to exercise strikes when they say if it comes down to having to take in african american ms hard or in another place it's garratt might be ok and the district attorney himself s d marilyn garrett has the most potential of the black perspective jurors and other words the blacks were taken out of the picture here they were taken and dealt with separately and over the weekend the jury questioning ended on a friday and the judge said are it over the weekend you've got to chance to decide who you're going to strike you knew exactly who they're going to strike because the the jurors are listed in order their state goes first and if it except the jurors and the state jurors on there's no going back there's no back striking or there's no striking people here is in there they developed three strike us and one of those strike was was a list headed definite no it's these the people absolutely are not going to be on this jury there are only six jurors list on the list of definite nose and the first five are african americans the sixth is the juror who made clear during the one year process that she could not impose the death pony under any circumstances the state moved to strike her for cause the judge probably erred in not granting that's right but even she ranked behind the black jurors in terms of the priorities that the prosecution had african americans were who were struck were women how does that and then that explanation is just kind of fallen out of the case how does that all that the analysis you did except women know as well answered yes when he when during the hague during the trial when he was asked whether he had done i don't know if own know it was on the motion for a new trial hearing whether he had done the same extensive background initial batson schilens 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 bets and motion before trial there was never a suggestion that there wouldn't be about some hearing everybody knew what was going to happen and all the back to 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 journey i was just surprised that we didn't hear about this preparation for a batson hearing until well behaved the defense lawyers a trial didn't move for the prosecution's no and the prosecution opposed that very strict and not not given their notes there when the prosecutor testified on the motion for a new trial he did something i've never seen or do before he cut a bargain sort of with the judge in the water saying i will testify but only if i don't have to show my notes i mean basic rules of evidence are you testified rely upon notes the other side can see the mountains but here these notes were guarded until two thousand and six when we obtained them through in freedom in the joint appendix that one sixty eight and all they said was we didn't highlight it in green and we didn't tell anybody else to highlight green and then mr lanier says and i don't have anything else to say beyond what i said hearing and the motion for to try mr poland said the only thing he says i didn't use those green highlighted lists in choosing the juror but of course that's just the first few pages what's damning about this is not their openness to having miscarriage was on the definite no list she was on each of the strike last miscarriage was never in the running to be on this jury but they represented to the court that because another african american surely powell was excused for cause there were five african americans in the the near at the start when the governor struck the jury but one said turns out i know somebody in the family she was excused for cause  reasons for why miscarriage would not be a good sure but she's impudent and she doesn't respect the court if you believe all the things they said about her they would never want as a juror but those things i would submit are not really  valid in terms of and in terms of the reason because the reasons they gave here many were demonstrably false and not supported by the evidence including reasons they gave about miscarriage 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 ephron americans who were struck and then lastly in what's so important under miller well they didn't question the jurors about the reasons for striking they gave reasons for striking a one question would have cleared up some of these and miller or else says that the failure to engage in any meaningful what dear about whatever your  s 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 are you suggesting a different approach to the question well you can't i would suggest it can't possibly be because this court said in justice alito is opinion snyder versus louisiana because if this court as it said so many times is engaged in unceasing efforts to end race discrimination in the criminal court then a strike that strikes motivated by race cannot be tolerable it and of course this is pointed out here and there miki this is a serious problem not just in this case but in other cases where people come to court with their can't reason as in just read them off it happened in this case where one of the reasons that was given was just taken verbatim out of a report to the reasons given were taken verbatim out of 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 s attorney in mississippi who gave that reason and then it was up held on appeal by by the fifth circuit but i would suggest that the standard is at least what snyder says because when you have both you can always have  should the court approach the batson analysis i think the court looks at which reasons are pretextual 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 batson applies to everyone is going to encourage the party to just give as many reasons as possible and hope that want to be acceptable  day like this that this is a case by case thing suppose there is one reason that's a killer reason like this this individual has numerous prior felony convictions all right and then the prosecutor says in addition and this this person didn't he looked down at the floor answering the questions and didn't seem to pause and didn't seem to understand some of the questions so on and under circumstances like that couldn't the court say well the one read there's one reason here that would is clearly a justification for a peremptory strike we don't have to determine whether there's evidence that the person was looking down the floor well first button says in the subsequent cases say you look at all relevant circumstances it may be of all the circumstances that are there that one has said that he would come to conclusion that of those two reasons that there was a valid reason but i would suggest that where you have in dishes like we have here i mean we have an arsenal of smoking guns in this case  the guns were in the original decision by 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 were were not enough to demonstrate a batson violation the new smoking guns would tip the scale isn't isn't that the issue well when you watch a court's when cited when the new smoking gun tells you that the prosecutor misrepresented facts and gave reasons there were absolutely false demonstrably false reasons and those are not clear before but you have that now i mean batson turns on the feasibility of the reasons  turns on the credibility of us all anderson all i'm saying and you seem to be agreeing is that it is not the overall action judgment that's before us but rather the judgment that that the new evidence did not now know from the notes we now know from the notes that there were misrepresentations with regard to these reasons when the georgia supreme court this is an example justice scalia upheld a strike of miscarriage 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 could have possibly been a reason for the strike so a you 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 all of definite no and mr bright just to make sure i understand all the notes in the prosecutor's files  that question first and and respect what i disagree with petitioners counsel on this issue i believe in 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 georgia supreme court with the door swearing or denies discretionary review then it is before this court answers right from the lower courts so the problem so i don't think this is discretionary review the eleventh circuit found it's not an under georgia law read it's opinion it seems pretty grounded in the state law of georgia yes your honor and that is a pretty hot button issue right now right now in the state federal courts and in georgia but our position in that in that those cases and i think there's a case before this court only hearing on that same issue is that georgia statute georgia statute specifically says that is a discretionary appeal the nine hundred seventy five corpus act made it a discretionary appeal i think because the door supreme court was just getting inundated with appeal after a appeal and has the georgia supreme court haven't ever said anything one way or the other as to whether it's discretionary or not in two of their cases read versus hopper which is tonight teen southeastern second for a nine and smith versus nichols which is to seventy southeastern second by fifty ninety nine nine statute the statute says in a hey b s case state hey b s the georgia supreme court must review it it says it must review it unless it's without merit i forget the statute said i just can't find it my book sorry the georgia statute said they shall review the case unless it's without it's totally without merit something like that does that ring a bell well there is a ring a bell what i'm saying it does ring a bell what are the exact words but i do not know the exact words but i believe the exact words are that a certificate of probable cause will be issued when there is arguable  justice just read from georgia law govern this case the answer is yes or no no i believe it's they do not govern this case what in your opinion is the georgia statute that says that those words you just held prisoner appeals and they are discretionary ok thank you i suppose that a court could have a discretionary view but could provide by rule that in the exercise of our discretion we will grant any of these unless it's a complete wrong and that is 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 circuit court does doesn't the taking of those cases still remain discretion it's a question i think i think the taking of the 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're insistent upon their discretion being discretionary is that correct that  rephrase i think the rule says that they will take a case if it has arguable merit generally they got to take in the positive right so what would lead us to believe that they didn't look at the merits and say there was no arguable merit that they just said we're too busy we don't care if there's arguable merit do you believe they did that i were certain i would never say they were too busy to take because i'm sorry but i said i would never say the too that would be the reason but i think they would say we've looked at this case because they do have the records before them and we don't say argue on merit to take this case for it so that is a decision on the merits there's no arguable merits i think it is a funny there's question about this you made reference to this is an issue that's being litigated in the georgia courts is that right in the eleventh circuit that is for this  to what issue is that the issue of which court sure sure i should be direct not to well it's the issue of what is the issue in my right that the issue that's been litigated is whether the supreme court review in cases like this is discretionary or both the door disappearing but and in the eleventh circuit it is it is currently in the eleventh circuit i don't believe we have a case pending now in the georgia supreme court on that particular issue but i do believe it's up there is an issue appear in the case is not discretionary if you and then in these cases that are pending the georgia supreme court says it is discretionary if you who wi let's other people ok look you have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the african american prospective jurors as a group that they had basically said we don't want any of these people here's the one we want to plea really have to take one but that they're all the evidence suggests a kind of singling out which is  antithesis of the bats and rule so you know i mean isn't this is i'm just going to ask you isn't this is clear a batson 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 particular of mr mr hood a miscarriage they certainly can be interpreted in two wa in our response rate to this court we don't know and we say you know this is why these highlights are there there's a reasonable explanation just as mister foster is given and speculation is his argument we don't know but when the reasonable explanation reasonable explanation in this case is four months prior to trial as was previously argued bezan had just come out bats in his new four months prior to trial defense counsel files a motion and says the strike of any black juror we're filing a batson challenge two weeks prior to trial he says he files a motion and says i'm there's a racial disparity in the one hundred seventy nine jurors and that's the that's the list that challenge the one hundred seventy that there is racial disparity of of prospective jurors on that list the day of trial he refiled that so i would be more surprise quite frankly if there wasn't some sort of highlighting or in other words the argument you're making here is about is that the reason he highlighted the whole the black jurors in green and block what about the black jurors and did all these different things was because he was preparing the defense in case of about correct all right now if that's correct why this is is this the for is it was this argument made before your main brief in this case and it was several years yes it's not and that 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 factual findings of the state where it seems to me are two arguments one is this argument that he never thought of apparently it was never thought to tell you until quite recently and the other after years and so it's hard to believe that his real reason and then there's a second argument that he had about forty different reasons and at least some of them could be valid ok now if my grandson tells me i don't want to watch i don't want to do my homework tonight at seven because i'm just so tired and besides i promised my friend i played 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 giving me five different reasons what do i think of those reasons well in this case and again i think this is one maybe valid correct and the other ones also well they are very valid but they are may not be as strong as is the for is the first one but in this case i think the important part what he did the point is he gave forty different reasons and the very fact that he gives forty different reasons and many of them are self contradictory obviously not applicable totally different from you know that's why i use my grandchild 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 bassett came out and even throughout the transcript people the defense counsel and the prosecutor says we're we don't really know where abouts it's going so in this case the prosecutor dealing with bassem 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 the one of the black  says i didn't make this it has to be one of the to prosecute it has to be one of two prosecutors and one was not there on the day it was struck the jury was struck only mr one near was but if that's not mr lanier's thought process of this definitely this definite false statement the reason that's given one of the reasons for carrots being struck is that her cousin was arrested and then the prosecutor doesn't know that at the time knew prior to the strikes prior to going to europe what he knew about individual jurors he wrote down as to marilyn garrett angela garrett is as a cousin so and then mr or the prosecutor testified and said i knew during why dear mr lundy told me that said join appendix one of five and one twelve that he didn't he also testified this is on fourteen of the reply brief it has come to our attention since the trial of this case that angela garrett was arrested it says on that page of the trend and that part 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 is unclear as what about what age so he is not trying to say she's twenty three or he states her age is thirty four 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 seventy nine and so i think you know maybe the motto is not not the most articulate framing up there 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 in head start with underprivileged children reported justifications which they could support a valid peremptory strike right but that the question for a court is well but did they support this valid peremptory strike in other words what was the prosecutor thinking batson 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 that if if it was clear that the prosecutor was thinking about race you agree with that right i think if his intent was to strike based on race yeah if his intent was just right based on race it doesn't matter that he could have had a different intent that would have supported a good peremptory strike and so the question of whether  you know someone or other might have been properly struck by 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 peremptory 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 he's not sure that what the no show again with misheard mr hood a miscarriage but they're contemporaneous notes taken at the time of trial as to each of these jurors or the reasons they struck them i mean there's no derogatory comments w nodes where there are you know other reasons that are plausible but could be phony surely it's the it's the judge that hears the testimony who is best able to judge whether asserted 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 only notes of racial discrimination there strike sound as to mr hood you would not want mr hood on the jury regardless of his rights based on his reasons for what reason that he gives a laundry list like i said may well have been because we were in one thousand and seven and you're just putting out everything you can because you're not exactly sure what you're supposed to do well here and been no turned over earlier than 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 one thousand eight hundred seven and the prosecutor mr lanier says i said i will give my notes to the court to look at him bank if defense counsel will do the same defense counsel chose not to do so that issue was raised on appeal to the georgia supreme court direct appeal the georgia court found it was miscarriage any questions about the issues that trouble the trouble for example her cousin suresh there's an assumption that she has a relationship with this caus i have cousins who i know have been arrested but i have no idea where they are in jail i hardly i don't know ben so but he didn't ask any questions doesn't that show pretax i don't like i'm not going to require 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 critically important to people but as to a number of issues i think when you're in flood here and you're asking questions you don't necessarily care what the answer is because we were guarding 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 prosecuted my son and he ma very well have said that very well have meant 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 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 ok and that is is there an independent state ground here you're familiar with the record and i read on page one two of the of your record for the decision and the first paragraph supports your view that you would like to hold i think that this is based upon race judicata which is a state matter and then there is the paragraph that was read to you on page one ninety five and one ninety six where the judge says the reason that i reached that conclusion is because the notes and record submitted by petitioner failed to demonstrate purposeful discrimination on the basis that the race was the basis ok 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 into law you know all those cases if it's ambiguous then aren't we required to assume that the judge went on the federal ground ok now that's both a leader'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 or new evidence the rest of the college goes out the window then you then the court gets to look at the issue and go beyond and i think in this case and in this case what you have new facts or new evidence  if you have or if if the issue's been decided on direct appeal and then you cannot go back to it a spear court obviously can't over overturn the state 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 so in this case it did then i think you will be on the roster to kind of are you know 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 race judicata it lists many many many claims and then it's lists a whole bunch of claims that are procedurally defaulted and then this is in a separate section the batson 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 batson versus kentucky last sentence your statement on one seventy five as a preliminary matter this court notes that as cited by the respondent the following claims are not reviewable based on the doctrine every student caught it and the first one it worse is the yes i think if you anything it is an alternate ruling that doesn't want to have the ga the supreme court has said georgia law allows claims to be revisited when new facts have developed since the time of the quickly let me first say that with regard to what justice alito quoted that has just come to our attention since the trial the case that ms garrett cousin was arrested that was on may the first that was after the death verdict had been returned in this case secondly if you look at the joint appendix in page fifty six and fifty seven where they give the reasons for striking miscarriage there's no mention of her cousin whatsoever in there that's the time when she should have been mentioned after the strike for may and yet there's no mention of that at all so i don't think is any what and then six months later there's a motion for a new trial and now the prosecution is adding new reasons that it didn't give it t it's saying she was a social worker she won social work 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 taken another thing out of the united states versus carly but you can't add reasons but with regard to miscarriage and martha duncan who were both teachers aides who were at schools that were literally right in the same neighborhood ms duncan head kindergarten students ms garrett was a head start no questions what kind of was two hundred fifty 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 then 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 would ask what about  child was arrested he was put on probation it was one hundred eighty dollars of and i'm just a second well one hundred eighty dollars 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 council cases submitted