Foster v. Chatman – Oral Argument – November 02, 2015

Media for Foster v. Chatman

Audio Transcription for Opinion Announcement – May 23, 2016 in Foster v. Chatman

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John G. Roberts, Jr.:

We’ll hear argument first this morning in Case 14-8349, Foster v. Chatman. Mr. Bright.

Stephen B. Bright:

Mr. Chief Justice, and may it please the Court: The prosecutors in this case came to court on the morning of jury selection determined to strike all the black prospective jurors.

John G. Roberts, Jr.:

Mr. Bright, maybe you could address first the — the question we raised on Friday with respect to which court certiorari should be directed to.

Stephen B. Bright:

Yes, Your Honor. We filed this petition originally certiorari to the Supreme Court of Georgia.

And of course this Court in Sears v. Upton had issued certiorari — this is in 2010 — to the Supreme Court of Georgia in a similar situation. It appears to us, from looking at this over the weekend, that R.J. Reynolds Tobacco Company v. Durham County, which the Court has decided in eight — 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 probable cause, which is what was denied in this case, is to be granted if there is arguable merit to the case.

John G. Roberts, Jr.:

Do 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 are we addressing the claim on its own merits?

Stephen B. Bright:

Well, I — I think what this Court has done in — in all these cases is apply Yist v. Nunnemaker 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 probable cause to the Georgia Supreme Court, and that is often denied summarily.

It is denied summarily as it was in this case.

It was denied.

Antonin Scalia:

I really don’t understand that.

You — you say we would be reversing the Georgia Supreme Court, not the — not the habeas court, right? And — 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 reverse that decision, we — 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 — on an issue they — they never considered?

Stephen B. Bright:

Well, that’s what happened in R.J. Reynolds.

I mean, there you had almost an 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 — and this Court decided, and Justice Blackman, 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 and the situation that R.J. Reynolds —

Elena Kagan:

But — 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?

Stephen B. Bright:

You — you did in Sears v. Upton, a case out of Georgia, 561 U.S. 945 in 2010. That was certiorari to the Supreme Court of Georgia, but it came up on exactly the same posture of our — our case.

Anthony M. Kennedy:

Is there an argument that the petition for certiorari could go to the trial court? I mean, our statute says that it goes to the highest court in which review could have — could have been had, I think is the — the statutory phrase, in which sounds like the Georgia Supreme Court. On the other hand, as Justice Scalia said, they haven’t really directed their attention to the issues before us. I — I — I’m not sure to me that it’s an option to — to go to the superior — to the Georgia trial court.

Stephen B. Bright:

Well, let —

Anthony M. Kennedy:

Or — or is that incorrect?

Stephen B. Bright:

Well, what this Court has said, both in the R.J. Reynolds case and then that was followed in Grady v. North Carolina last year — 2015 case, this year, in which, once again, there was an intermediate court decision denied by the — the North Carolina Supreme Court. I mean, I can remember all the way back to 1960.

There was Thompson v. Louisville, where certiorari 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 and this year —

Ruth Bader Ginsburg:

You’re putting together two rules that you say we’ve established.

One is Justice Blackman said, to end the confusion, the petition should be addressed to the Supreme Court. And then you said, we have cases.

Look through cases.

If —

Stephen B. Bright:

Right.

Ruth Bader Ginsburg:

— 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.

Stephen B. Bright:

Well, and — and they’re not mutually exclusive.

Stephen B. Bright:

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 R.J. Reynolds and — and the subsequent case say that certiorari would issue to the Georgia Supreme Court. And — 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 of Butts County.

Samuel A. Alito, Jr.:

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 in Batson is — is the issue that we have to decide?

Stephen B. Bright:

I — I — I think in R.J. Reynolds, I think that’s this Court’s law, yes.

Samuel A. Alito, Jr.:

Could I ask you another — a question about another preliminary issue before you get to the — the — 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 res 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 sufficient to overcome the res 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?

Stephen B. Bright:

Well, the State doesn’t argue that.

And I think the reason for that is because the Court said, we’re moving — the Court is going to address step three of Batson.

And it said, Foster’s Batson claim is without merit.

Anthony M. Kennedy:

Well, but is it question of Federal or State law as to whether or not the Petitioner has shown a change in facts sufficient to overcome the res judicata bar? The one — the page 192 language that Justice Alito quoted, is that — is that a State law question or —

Stephen B. Bright:

That’s a State law question. And here —

Anthony M. Kennedy:

Well —

Stephen B. Bright:

— the Court decided it, but I — I point out, Justice —

Anthony M. Kennedy:

Well, if it’s a State law question and they resolved it against you, what do you have to — then what do you have to argue?

Stephen B. Bright:

No, no, no.

Anthony M. Kennedy:

I think you have to say it’s a Federal question.

Stephen B. Bright:

No.

In order to decide it, the — this is exactly like Ake v. 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 in Ake 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 the — found that the Batson claim had no merit.

So it is decided, the Federal issue, and there’s no contest about that in the —

Antonin Scalia:

Explain to me why deciding the Federal issue was essential to its deciding the State res judicata issue.

Stephen B. Bright:

Because it — it — it framed the question as being that it would look at the Ake v. — excuse me — they would look at the Batson v. Kentucky claim and that, if there was merit to that claim, then the court would grant the writ on it.

On the other hand, if it found that there was not merit on it, then —

Antonin Scalia:

There — you think it was saying whether there’s res judicata or not depends on whether the new claim has any merit?

Stephen B. Bright:

I think — I think it’s exactly —

Antonin Scalia:

That’s a very strange application of res judicata, it seems to me.

Stephen B. Bright:

Well —

Antonin Scalia:

I thought it was whether there — there were changed facts sufficient enough.

Stephen B. Bright:

Well, the Georgia law is that you can bring an issue that’s been litigated already before direct appeal.

Antonin Scalia:

Right.

Right.

Stephen B. Bright:

In habeas, if there are —

Antonin Scalia:

Even — even — right. Even if it would, you know, produce a different result, right?

Stephen B. Bright:

Right.

If the — if the facts are such that it would produce a different result, right.

Sonia Sotomayor:

Mr. Bright, did the court, in your judgment, do de novo review? Didn’t it say that it did — basically, it was going to do step three of the Batson charge — challenge?

Stephen B. Bright:

Yes, that’s exactly what the court said, yes.

Sonia Sotomayor:

So that’s a ruling on the merits.

Stephen B. Bright:

I think — I think the court said the Batson claim is without merit.

That seems like a ruling on the merits to me. (Laughter.)

Sonia Sotomayor:

Well, it — I think it said after — after redoing —

Stephen B. Bright:

After considering these other facts.

And we think there was some legal errors made there.

But yes, after considering these facts, the court said that the claim was without merit.

Ruth Bader Ginsburg:

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 res judicata bar.

Stephen B. Bright:

No.

I mean, in Ake 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 47 United States.

Samuel A. Alito, Jr.:

Well, I don’t want to belabor the point too much, but you — are you arguing that Georgia res judicata law is this: If someone comes up with any new fact, the — the — the thinnest new fact, that is sufficient to wipe out the res judicata bar and allow the court to get to the merits of the claim? Is that your argument? That’s your understanding of Georgia res judicata law?

Stephen B. Bright:

That’s not my understanding. My understanding 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.

Anthony M. Kennedy:

And we really want you to get to the merits, but why is that — in conjunction with —

Stephen B. Bright:

We will.

Anthony M. Kennedy:

— with Justice Scalia’s question, why is that an issue of Federal law?

Stephen B. Bright:

Because the court decided the Batson issue to decide the underlying State law issue. And I think Ake is pretty clear on this, and I commend it to the Court’s attention.

We didn’t — it wasn’t — since the State had raised this, either in their opposition to cert or in their brief, it’s not briefed before this Court, but I think that’s the deciding case on this.

John G. Roberts, Jr.:

Thanks, counsel.

I think we have your argument on the point.

John G. Roberts, Jr.:

Thank you.

Stephen B. Bright:

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 rated them against each other in case it came down to having to select a black juror.

Ruth Bader Ginsburg:

The prosecutors said the reason for concentrating on the black jurors was that you had informed them you would present a Batson challenge, and therefore, it was necessary for them to see if there was a race-neutral ground for disqualifying that case.

Stephen B. Bright:

Right.

Two answers to that, Justice Ginsburg. I mean, what the lawyers did here was these lawyers have practiced here for a long time in Rome, Georgia.

They said the prosecutor always strikes all the blacks from the jury.

That’s been the historic practice.

We think they’re going to strike all the blacks on the jury in our case.

But last year the Supreme Court of the United States decided Batson v. Kentucky, and we asked the Court not to let that happen in this case. Now, of course, if the prosecutor is willing to avoid a Batson challenge, they could have not discriminated.

That would have been the first thing to do. But — 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 an African-American, Ms. Hardge, or in another place, Ms. Garrett, might be okay.

And the district attorney himself said Marilyn 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 — and dealt with separately.

And over the weekend, the jury — the 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 they knew exactly who they were going to strike because the — the — the jurors are listed in order.

The State goes first, and if it accepts a juror, then the State accepts, and that juror is on.

There’s no going back. There’s no backstriking or there’s no striking people here and there. They developed three strike lists.

And one of those strike lists was a list headed “Definite NOs.” These are the people absolutely are not going to be on this jury.

There are only six jurors listed on the list of “Definite NOs,” and the first five are African-Americans.

The sixth is a juror who made clear during the voir dire process that she could not impose the death penalty under any circumstances.

The State moved to strike her for cause.

The judge probably erred in not granting that strike.

But even she ranked behind the black jurors in terms of the priorities that the prosecution had for — for striking.

John G. Roberts, Jr.:

Counsel, at this —

Sonia Sotomayor:

Mr. Bright —

John G. Roberts, Jr.:

— at the time, Mr. Lanier said they weren’t striking the — the jurors because of race.

They were striking them because they were women.

And I guess three — three out of the four — (Laughter.)

John G. Roberts, Jr.:

— African-Americans were — who were struck were — were women.

How does that — and then that explanation is just kind of fallen out of the case. How — how does that affect the analysis?

Stephen B. Bright:

Well, he — he did accept women, though, as — as well.

If — bear with me a — just a moment.

Ruth Bader Ginsburg:

The Court had not yet held that Batson applies to —

Stephen B. Bright:

The Court had not held in JEB that Batson applied to women, but the Court did say in JEB that, of course, it could be used as a pretext, women, for striking on the basis of race. In this case, the prosecutor struck three white jurors, and then he struck the three black jurors, women, the three black women and the three white women. The final —

Sonia Sotomayor:

Mr. — Mr. Bright, Mr. Lanier —

Stephen B. Bright:

Yes.

Sonia Sotomayor:

— answered yes when he asked — when during the — during the trial when he was asked whether he had done — I don’t know if it — oh, no, 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 search?

Stephen B. Bright:

No.

The only — what that’s talking about — and — and the investigator said this in his deposition, was the color — race-coded colored list, those first four lists you have in the Joint Appendix in which the blacks are marked with a “B” and are highlighted in green with a marker up at the corner saying green designates black.

Sonia Sotomayor:

So — so your — your understanding of that statement was that all — he had only done an extensive search on the blacks on the list?

Stephen B. Bright:

Well, it’s clear, Mr. Lundy had prepared a — a list, notes in which he talked about just the black jurors in — in the case.

And I think the State concedes in its brief that the focus was on the black jurors.

Sonia Sotomayor:

During the trial, did defense counsel, when he made his initial Batson challenge — not in the papers, but at trial — did he again say that this was part and parcel of the prosecutor’s pattern?

Stephen B. Bright:

He didn’t say that, but I point this interesting thing out.

When they discussed the Batson motion before trial, there was never a suggestion that there wouldn’t be a Batson 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 selection.

Sonia Sotomayor:

I was just surprised that we didn’t hear about this preparation for a Batson hearing until —

Stephen B. Bright:

Well —

Sonia Sotomayor:

— the habeas.

Stephen B. Bright:

The — the defense lawyers at trial did move for the prosecution’s notes.

And the prosecution opposed that.

They’re very strict in not — not giving up their notes.

Then when the prosecutor testified on the motion for a 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 Records Act in Georgia.

Ruth Bader Ginsburg:

The prosecutors said that you — they said, we never — we never wrote or authorized or relied on those notes.

And you didn’t call the prosecutors to test the veracity of that assertion.

Stephen B. Bright:

No, but all the prosecutor talked about were the color-highlighted notes.

Each prosecutor filed an affidavit which are in the — 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. Lanier says — and I don’t have anything else to say beyond what I said at the Batson hearing and the motion for a new trial. Mr. Pullen said — the only other thing he said 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 NOs” list, the misrepresentation to the trial court that Ms. Garrett — that they wanted Ms. Garrett.

That’s what they told the trial court. And the trial court relied upon that in denying the Batson 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 venire at the start when they got ready to instruct the jury.

But one said, turns out I know somebody in the family.

She was excused for cause.

And the prosecutors said — made it — implied clearly that had it not been for that, that extra strike, that Ms. Garrett would have sat. At the same time — and they’re still arguing this both ways, that they both wanted her and didn’t want her — they give eleven reasons for why Ms. Garrett would not be a good juror.

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 juror. But those things, I would submit, are not really valid in terms of — in terms of the reasons, because the reasons they gave here, many were demonstrably 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-El, they didn’t question the jurors about the reasons for striking them.

They gave reasons for striking, and one question would have cleared up some of these.

And Miller-El says that the failure to engage in any meaningful voir dire about whatever your reason is, is evidence suggesting that the explanation is a sham and a pretext.

Sonia Sotomayor:

Mr. Bright —

Stephen B. Bright:

And —

Sonia Sotomayor:

— 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 —

Stephen B. Bright:

Yes.

Sonia Sotomayor:

— 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?

Stephen B. Bright:

Well, it can’t — I — I would suggest it — it can’t possibly be.

Because this Court said in Justice Alito’s opinion in Snyder v. Louisiana that where the peremptory strike was shown to have been motivated in substantial part by race, that it could not be sustained.

And — excuse me — I — I would suggest to you, it shouldn’t even really say substantial. Because if this Court, as it said so many times, is engaged in unceasing efforts to end race discrimination in the criminal courts, then a strike that — strikes motivated by race cannot be tolerable. And, of course, as — as pointed out here in the — in the amici, 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 — 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 U.S. attorney in Mississippi who gave that reason, and then it was upheld on appeal by — by the Fifth Circuit. But I — we would suggest that the standard is at least what Snyder says, because when you have both — you can always have, as Miller-El recognized —

Anthony M. Kennedy:

Well, in — in response to Justice Sotomayor’s question —

Stephen B. Bright:

Right.

Anthony M. Kennedy:

— if the prosecutor argues a laundry list of reasons for striking the black juror and some of those are reasonable and some are implausible, how should the Court approach the Batson analysis?

Stephen B. Bright:

I think the Court looks at which reasons are pretextual.

Stephen B. Bright:

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 a party to just give as many reasons as possible and hope that one will be acceptable.

And in this case —

Samuel A. Alito, Jr.:

Don’t you think this is — this is a case-by-case thing? Suppose there’s 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 in 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, the one — there’s one reason here that would — that is clearly a justification for a peremptory strike? We don’t have to determine whether there’s evidence that the person was looking down at the floor.

Stephen B. Bright:

Well, of course, Batson says, and the subsequent cases 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 indicia like we have here, I mean, we have an arsenal of smoking guns in this case.

Antonin Scalia:

A lot of those smoking guns were in the original decisions by — by the Georgia courts.

It seems to me what — 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 Batson violation — the new smoking guns would tip the scale.

Isn’t — isn’t that the issue —

Stephen B. Bright:

Well, when the —

Antonin Scalia:

— that the Georgia courts decided?

Stephen B. Bright:

When the — when the new smoking gun tells you that the prosecutor misrepresented facts and gave reasons that 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.

It turns on the credibility of the prosecutor.

Antonin Scalia:

Yes, but all — all I’m saying — and you seem to be agreeing — is that it is not the overall Batson judgment that’s before us but rather the judgment that the — that the new evidence did not suffice to create a Batson violation where none existed before.

Stephen B. Bright:

No.

Our position is that when you look at the new evidence with all the evidence at 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 on Ms. Garrett on two bases: 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.

Ruth Bader Ginsburg:

Are you saying in 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?

Stephen B. Bright:

They — they do that, and — 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 NOs.”

Elena Kagan:

And Mr. Bright, just to make sure I understand, all the notes in the prosecutor’s files were new; is that right?

Stephen B. Bright:

New.

New to this case, yes.

Elena Kagan:

Yes.

Okay.

Stephen B. Bright:

And there were three people: It just involved the two prosecutors and the investigator who put those together. I’d like to reserve the balance of my time.

John G. Roberts, Jr.:

Thank you, counsel. Ms. Burton.

Beth A. Burton:

Mr. Chief Justice, and may it please the Court: I believe there are two important factors in this case when reviewing the entirety of the evidence. One is Petitioner bears the burden of establishing clear —

John G. Roberts, Jr.:

I — I’ll ask you as well to address the certiorari question first.

Beth A. Burton:

And — and respectfully, I disagree with Petitioner’s counsel on this issue.

I believe Norfolk & Western Railway v. 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, but the Georgia Supreme Court denies discretionary review, then it is before this Court on certiorari from the lower court.

Beth A. Burton:

So —

Sonia Sotomayor:

Well, the problem is I don’t think this is discretionary review.

The Eleventh Circuit found it’s not under Georgia law.

Read its opinion.

It seems pretty grounded in the stated law of Georgia.

Beth A. Burton:

Yes, Your Honor, and that is — that’s a pretty hot-button issue I know right now in the State Federal courts in Georgia.

But our position in that — in that — those cases and in — I think there was 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 Habeas Corpus Act made it a discretionary appeal, I think, because the Georgia Supreme Court was just getting inundated with appeal after appeal.

Elena Kagan:

And has the Georgia Supreme Court ever — ever said anything one way or the other as to whether it’s discretionary or not?

Beth A. Burton:

In two of their cases, Reed v. Hopper, which is 219 S.E.2d 409, and Smith v. Nichols, which is 270 S.E.2d 550, 1999.

They both state those as discretionary.

But they have not — they have not answered a — a certified question on that issue.

Sonia Sotomayor:

Could you give me the — the Reed v. — what?

Beth A. Burton:

Yes, Your Honor.

219 S.E.2d 409.

That’s a 1975 case.

Antonin Scalia:

Are certified questions available in Georgia? Could — could we certify a question to the Georgia Supreme Court?

Beth A. Burton:

I — I believe you can, Your Honor.

Stephen G. Breyer:

You did — we — I — I — we looked at — I looked at the statute.

The statute says in a habeas case, State habeas, 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 them.

Beth A. Burton:

Well, the — in State habeas —

Stephen G. Breyer:

Do they state that?

Beth A. Burton:

Well, in the State habeas, I think it’s 9-14-52 —

Stephen G. Breyer:

Yes.

Beth A. Burton:

— the statute takes State habeas cases out of other appellate review and makes that just discretionary.

The Georgia Supreme Court —

Stephen G. Breyer:

Well, wait, wait, wait. Then I’ve been looking at the wrong place. You heard your brother here say — he quoted some words.

Stephen G. Breyer:

I don’t remember the exact words, but they were exactly what I’d read, and it was from a statute in Georgia.

Beth A. Burton:

Well, it’s —

Stephen G. Breyer:

And the Georgia 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 — it’s totally without merit. Something like that. I — does that ring a bell?

Beth A. Burton:

Well, there is —

Stephen G. Breyer:

Does it ring a bell, what I’m saying?

Beth A. Burton:

It — it does ring a bell.

Stephen G. Breyer:

Or what are the exact words?

Beth A. Burton:

I — I — I do not know the exact words.

But I believe the —

John G. Roberts, Jr.:

The exact words are that a certificate of probable cause will be issued when there is arguable merit.

Stephen G. Breyer:

Yes.

That’s it.

Beth A. Burton:

But I believe that’s Rule 36 of the Georgia Supreme Court.

Stephen G. Breyer:

Right.

Right — that doesn’t —

John G. Roberts, Jr.:

I think it’s 9-14-52.

Or if there had been compliance with that, right? Okay.

Stephen G. Breyer:

Okay.

Does that govern this case?

Beth A. Burton:

I — I believe the statute would trump it.

Stephen G. Breyer:

Does the word that he — that the Chief Justice just read from Georgia law govern this case? The answer is yes or no.

Beth A. Burton:

I — no, I believe it’s discretionary.

Stephen G. Breyer:

They do not govern this case.

Beth A. Burton:

I believe the State —

Stephen G. Breyer:

Okay.

What, in your opinion, is the Georgia statute that says that those words you just held do not govern this case?

Beth A. Burton:

I believe it’s — and — and correct.

I — I’m certainly open to correction. 19-14-52 states that State habeas is taken out of other appeals, which are normally directly appeals, or prisoner appeals, and they are discretionary.

Stephen G. Breyer:

Okay.

Stephen G. Breyer:

Thank you.

Antonin Scalia:

Well, I — I suppose that — that — 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 patently wrong. Could — couldn’t — and — is — maybe that’s what’s happened here.

And if — if you use your discretion to enact a rule which says you will take cases of a certain court, does — does the taking of those cases still remain discretionary? That’s a nice question, isn’t it? (Laughter.)

Beth A. Burton:

I think the — I think the taking of the case does remain discretionary.

If they find it has arguable merit, it is discretionary.

And — and the two cases I cited specifically reference —

Elena Kagan:

Well, why would we —

Antonin Scalia:

You’ve — you’ve just decided that you will uniformly exercise your discretion in a certain way.

Beth A. Burton:

Correct.

Antonin Scalia:

Yes.

Elena Kagan:

But — but I — 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 insisting upon their discretion being discretionary. Is that correct? (Laughter.)

Beth A. Burton:

That is — that is my understanding.

Because these — this — this law applies to not just, obviously, death-only cases but the multitude of non-death-only cases.

Sonia Sotomayor:

I’m sorry.

I’m so confused I can’t even — (Laughter.)

The State habeas process is different than the regular appeal process.

Beth A. Burton:

That’s correct.

Sonia Sotomayor:

On the regular appeal process, they look at each case — each case with discretion.

Beth A. Burton:

On a direct appeal process, it — it — and certainly a capital case, it is mandatory review.

Sonia Sotomayor:

Okay.

In State habeas they have a rule, an internal rule that says, we’ll take every habeas case unless it’s — has no arguable merit, right?

Beth A. Burton:

I — if I may rephrase: I think the rule says that they will take a case if it has arguable merit.

Generally they would not take —

Sonia Sotomayor:

In the positive.

Beth A. Burton:

Right, right.

Sonia Sotomayor:

So what would lend 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 is arguable merit. Do you believe they did that?

Beth A. Burton:

I would never — I would never say they were too busy to take the case.

Sonia Sotomayor:

I’m sorry.

Sonia Sotomayor:

What?

Beth A. Burton:

But — I said I would never say they were too — that 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 see arguable merit to take this case up.

Sonia Sotomayor:

So that is a decision on the merits.

There is no arguable merits.

Beth A. Burton:

I think it is a fine — there is no arguable merit to the application that there has been error below.

Sonia Sotomayor:

Okay.

Beth A. Burton:

If that makes it any clearer.

Sonia Sotomayor:

Now it’s clear.

Anthony M. Kennedy:

And in your view, cert should have been granted to the Georgia Supreme Court?

Beth A. Burton:

I believe in my — I believe it should have been granted to the State habeas court because of that discretionary review and because I believe that this Court has said, in Michigan v. Long, that if it’s —

Anthony M. Kennedy:

All right.

Beth A. Burton:

— if it’s unclear, it comes from the State habeas court.

Elena Kagan:

Can I just ask one more quick question about this.

Beth A. Burton:

Sure.

Elena Kagan:

You — you made reference — this is an issue that’s being litigated in the Georgia courts, is that right, in the Eleventh Circuit?

Beth A. Burton:

That is correct.

Elena Kagan:

This precise issue?

Beth A. Burton:

This — this issue.

Elena Kagan:

Thank you.

Beth A. Burton:

To —

Antonin Scalia:

What — what issue is that?

Beth A. Burton:

The — (Laughter.)

Antonin Scalia:

Is it — is it the issue of which court the certiorari should be directed to?

Beth A. Burton:

Well, I — I — it’s — it’s —

Antonin Scalia:

The issue of what? What is the issue that is being litigated?

Elena Kagan:

Well, I’ll — I’ll — am I right that the issue that is being litigated is whether the Supreme Court review, in cases like this, is discretionary or not discretionary?

Beth A. Burton:

That is correct.

Antonin Scalia:

All right.

Beth A. Burton:

And in those cases, obviously, it’s coming up from Federal court.

So we’re dealing more with Elst and Richter — Harrison — Harrington v. Richter in — in a — in a sort of a different scope of things in that regard.

Ruth Bader Ginsburg:

And this question is in both the Georgia Supreme Court and in the Eleventh Circuit?

Beth A. Burton:

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 — I do believe it’s up — there is an issue up here in a case, Jones v. Chatman, where it is they’ve asked for rehearing —

Anthony M. Kennedy:

Do you think this would be an appropriate case for us to exercise our discretion to certify the question to the Supreme Court?

Beth A. Burton:

We would certainly like an answer from the Georgia Supreme Court on that issue.

I think — I think the Eleventh Circuit would like that as — as well.

I think it would clear up both State and Federal law for — for a number of things.

Ruth Bader Ginsburg:

There’s a statute that permits the — the Georgia Supreme Court to accept certified questions.

Do you know anything about the history of requests for certification? Some states have such a process, but the State supreme court rejects the question.

Beth A. Burton:

I do not, Your Honor.

And I — I apologize for that.

Antonin Scalia:

What — 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? (Laughter.)

Is it ultimately a question for us or for the Georgia Supreme Court?

Beth A. Burton:

I think it’s ultimately a question for the Georgia Supreme Court as to what — what their law is, what the State law is.

Sonia Sotomayor:

Why?

Elena Kagan:

Me too. Can I — can I go to the merits? Is that — is that all right?

Beth A. Burton:

Sure.

Elena Kagan:

Okay.

Unless other people — Okay. 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 is the one we want if we really have to take one.

But that there — the — all the evidence suggests a kind of singling out, which is the very antithesis of the Batson rule. So, you know, I mean — well, isn’t this as — I’m just going to ask you: Isn’t this as clear a Batson violation as a court is ever going to see?

Beth A. Burton:

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. — Mr. Hood and Ms. Garrett. They certainly can be interpreted in two ways.

In — in our response brief 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 in his arguments.

We don’t know. But when they’re —

Stephen G. Breyer:

What is the reasonable explanation?

Beth A. Burton:

The reasonable explanation in this case is, four months prior to trial, as was previously argued, Batson had just come out.

Beth A. Burton:

Batson is 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 racial disparity in 179 jurors.

And that’s the — that’s the list that’s challenged, the 179.

There is racial disparity of black prospective jurors on that list. The day of trial, he re-files that.

So I would be more surprised, quite frankly, if there wasn’t some sort of highlighting, or if —

Stephen G. Breyer:

In other words, the argument you’re making here —

Beth A. Burton:

Exactly.

Stephen G. Breyer:

— is that — is that the reason he highlighted all the black jurors in green and thus said black — what about the black jurors and did all these different things was because he was preparing a defense in case of a Batson challenge.

Beth A. Burton:

Correct.

Stephen G. Breyer:

All right.

Now, if that’s correct, why this is — is this the first — is it — was this argument made before your main brief in this case?

Beth A. Burton:

And it was not — JUSTICE BREYER? It’s been several years. Yes or no?

And it was not.

And that’s — and —

Stephen G. Breyer:

It was not. So if that had been his real reason, isn’t it a little surprising that he never thought of it — (Laughter.)

— or didn’t tell anybody until you raise this argument in your main brief?

Beth A. Burton:

And — and I — I would — I would say that’s on State habeas counsel.

We relied on our res judicata bar throughout State habeas; and then after that, basically defended the factual findings of the State habeas.

Stephen G. Breyer:

All right.

It seems to me you have two arguments. One is this argument that he never thought of, apparently, or 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 the 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 7:00 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 is upset, but I want to eat spaghetti.

And so he’s now given me five different reasons. What do I think of those reasons?

Beth A. Burton:

Well, in this case — and again, I think this is —

Stephen G. Breyer:

One may be valid.

Beth A. Burton:

Correct, and the other ones also may be —

Stephen G. Breyer:

Which one?

Beth A. Burton:

Well, they all may be valid, but they all may not be as strong as — as the — as the first one.

But in this case, I think the important part —

Stephen G. Breyer:

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 used 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.

Beth A. Burton:

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 — defense counsel and the prosecutor says, we’re — we don’t really know where Batson is 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.

Anthony M. Kennedy:

But he’s simply wrong.

He puts down, if it comes — if it comes down to having to pick one of the black jurors — was it Ms. Garrett? — might be okay.

Beth A. Burton:

And that’s — that’s Mr. Lundy. That’s the investigator.

Anthony M. Kennedy:

So it — it — it — well, but that seems to me to undercut the argument, well, they’re just feeling their way and so forth.

They’ve — they’ve made a mistake — they’ve made a mistake of — in Batson.

Sure it was new; but they’re wrong.

Beth A. Burton:

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. Lundy’s, notes, and that was the investigator who said if we have to choose a black juror, she may be the best one.

Ruth Bader Ginsburg:

Who was responsible for the definite no list?

Beth A. Burton:

The definite no list, nobody — the only person that was asked about that was Mr. Lundy, who was deposed and said he could not identify who wrote that list.

So we don’t —

Ruth Bader Ginsburg:

There are only three possible choices.

Beth A. Burton:

We — right.

We know it came from the D.A.’s office.

Ruth Bader Ginsburg:

And it — and it exists — the paper exists.

It says “Definite NO.”

Beth A. Burton:

Correct.

And I don’t think that is — I don’t think that was a ranking of jurors, because when you look, they did score jurors throughout.

Ruth Bader Ginsburg:

But there were five African-American jurors —

Beth A. Burton:

Correct.

Ruth Bader Ginsburg:

— on the definite — well, one of them was Garrett — this — as was pointed out.

They said, if we have to have one, let it be Garrett.

But Garrett then shows up on the definite no list.

Beth A. Burton:

Correct.

And —

Sonia Sotomayor:

Were we told that the only three people who did the investigation on Batson were the two prosecutors on the case and Mr. Lundy? So if Mr. Lundy says I didn’t make that list, it has to be one of the two prosecutors.

Beth A. Burton:

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. Lanier was.

But if that’s not Mr. Lanier’s thought process of this definite — this definite no list — and I don’t see that that gets you to clear error in the striking of Mr. Hood or Ms. Garrett.

Ruth Bader Ginsburg:

What do you do with other — I mean, it just — it seems an out-and-out false statement.

The reason that’s given — one of the reasons for Garrett’s being struck is that her cousin was arrested.

But then the prosecutor doesn’t know that at the time of the voir dire.

He doesn’t know until after the voir dire that the cousin was arrested.

So how could it possibly be a reason at the time of the voir dire?

Beth A. Burton:

And I don’t think the record bears that out.

These notes — the highlighted notes that Petitioner wants to say, these were used during voir dire, these were using during the strikes, in those notes — and this is at Joint Appendix page 256 — Angela is written out beside Ms. Garrett’s name.

In Mr. Lundy’s notes where he said he wrote down things he knew prior to the strikes, prior to voir dire of what he knew about individual jurors, he wrote down as to Marilyn Garrett, Angela Garrett is a cousin.

So — and then, Mr. Lanier testified —

Sonia Sotomayor:

Didn’t the habeas court —

Samuel A. Alito, Jr.:

Did Mr. Lanier testify —

John G. Roberts, Jr.:

Justice.

Sonia Sotomayor:

— provide an excuse and say — I’m sorry.

John G. Roberts, Jr.:

No.

Sonia Sotomayor:

Didn’t the habeas court accept that he didn’t know at the time of trial, but he just knew that Lundy didn’t want her?

Beth A. Burton:

The — what the — the habeas court actually credited the fact that Mr. Lundy had advised trial counsel that Angela Garrett should be struck.

Sonia Sotomayor:

But that was his explanation for why the prosecutor didn’t know about the prior arrest, correct?

Beth A. Burton:

No, I think the — I think the State habeas court credited that as one of the facts of the strike.

Sonia Sotomayor:

That Mr. Lundy didn’t want her.

Beth A. Burton:

Excuse me, I —

Sonia Sotomayor:

That Mr. Lundy didn’t want her.

He never credited or never said that he knew this — that he knew about the arrest.

Beth A. Burton:

Mr. — actually, Mr. Lanier testified twice, though, that he was aware at the time of jury selection that he knew about —

Sonia Sotomayor:

Mr. Lundy did, but the prosecutor didn’t.

Beth A. Burton:

Well, no.

In the motion for a new trial that Mr. Lanier — the prosecutor testified and said, I knew during voir dire; Mr. Lundy told me that.

That’s at Joint Appendix 105 and 112, that he knew —

Samuel A. Alito, Jr.:

Well, didn’t 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?

Beth A. Burton:

It says on — on that page of the — on that part of the transcript, which I — I cannot explain to you in — 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 —

Samuel A. Alito, Jr.:

What about the — what about the giving a reason for dismissing her that she was close in age to the defendant?

Beth A. Burton:

When — and the —

Samuel A. Alito, Jr.:

She was in her 30s.

He was 18 or 19.

Beth A. Burton:

And when he initially strikes — when Mr. Lanier initially explains his strikes, he does state her age, so he is not trying to say she’s 23.

He states her age as 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 — I know it’s not — 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 white juror also struck for that same purpose.

Elena Kagan:

But — but Ms. Burton, wouldn’t you agree, in a lot of these Batson cases, you’ll have purported 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 the — if it was clear that the prosecutor was thinking about race. You agree with that, right?

Beth A. Burton:

I think if his intent was to strike based on race.

Elena Kagan:

Yes, if his intent was to strike 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’ 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.

Beth A. Burton:

And — and I don’t think these notes show that.

What the notes show, again, with Ms. Hood — Mr. Hood and Ms. Garrett, they’re 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.

Antonin Scalia:

Where — 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’s best able to judge whether asserted reasons are phony reasons or not; isn’t that right?

Beth A. Burton:

Yes, Your Honor.

And — and I don’t believe that —

Antonin Scalia:

It’s sort of hard for us to do it on a cold record.

Beth A. Burton:

Well, but —

Antonin Scalia:

I mean, it’s harder.

Antonin Scalia:

It’s harder, not impossible, but harder.

Elena Kagan:

And Justice Scalia raises, of — of course, a good point in the mine run of cases, but not in a case where all the evidence of intentional discrimination was not before the judge at the time.

Beth A. Burton:

And — 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 what — reason that he gives a laundry list, like I said, may well have been because we’re in 1987, and you’re just putting out everything you can because you’re not exactly sure what you’re supposed to do. Well —

Ruth Bader Ginsburg:

Why weren’t the notes turned over earlier?

Beth A. Burton:

The — the notes were not turned over earlier, although it was brought up in the motion for a new trial in November, right after the trial in 1987.

And the prosecutor, Mr. Lanier, says, I will — said, I will give my notes to the court to look at en banc 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 — Georgia 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 — I don’t think there was any argument about it at that point.

Sonia Sotomayor:

What did they do with the failure to ask Ms. Garrett any questions about the issues that troubled the — troubled, for example, her cousin’s 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.

Beth A. Burton:

Well, I think a number of times — and I know this Court’s precedent on not asking questions is particularly in voir dire as to people. But as to a number of issues, I think when you’re in voir dire 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 prosecuted my son.

Sonia Sotomayor:

Well, stealing hubcaps, in my mind, is decidedly different than murdering people or attacking them the way this case was — this case was about.

I — I can imagine a — why can’t you imagine a father saying, it was stealing hubcaps —

Beth A. Burton:

And he —

Sonia Sotomayor:

— he should have been punished?

Beth A. Burton:

And he may well have, but it’s a risk I don’t — the prosecutor —

Sonia Sotomayor:

That’s what the record supports.

Beth A. Burton:

Well, it’s a risk the prosecutor didn’t have to take.

I — if you have somebody — and, as I said, Mr. Hood could 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, oh, I don’t know about —

Stephen G. Breyer:

I — 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.

Beth A. Burton:

Okay.

Stephen G. Breyer:

And that is, is there an independent State ground here? Now, you’re familiar with the record.

Beth A. Burton:

Yes.

Stephen G. Breyer:

And I read on page 192 of the — of your record the decision.

And the first paragraph supports your — the view that you would like to hold, I think, that this is based upon res judicata, which is a State matter. And then there is the paragraph that was read to you on page 195 and 196 where the judge says, “The reason that I reach that conclusion is because the notes and records submitted by Petitioner failed 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 in the — 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.

Beth A. Burton:

I actually agree that it’s unclear.

I think —

Stephen G. Breyer:

Well, that’s the end of it, isn’t it?

Beth A. Burton:

It is — it is the end of it. I think it’s unclear. The other — one other issue —

Samuel A. Alito, Jr.:

What do you think is Georgia res judicata law?

Beth A. Burton:

I think res judicata in — in Georgia, if you have new facts or new evidence —

Samuel A. Alito, Jr.:

The res judicata goes out the window.

Beth A. Burton:

Then you — then the court gets to look at the issue and go beyond.

And I think in this case —

Sonia Sotomayor:

I’m sorry.

I didn’t hear that.

Then this Court?

Beth A. Burton:

In — in — in this case, once you have new facts or new evidence, if the Court in this case finds that they can review the evidence anew and a new review is had, then I think you are beyond that bar.

Antonin Scalia:

I — I don’t understand what you’ve just said.

Say it again.

Beth A. Burton:

Okay. (Laughter.)

If you have — if the issue has been decided on direct appeal and you cannot go back to it — a superior 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 — and in this case it did — then I think you are beyond the res judicata bar.

Elena Kagan:

Yes, 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 res judicata.

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 Batson issue, and it’s in a section that’s with — with all the other claims that there are 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: “On the merits the person, the” — “the” — “the Petitioner loses.” So —

Beth A. Burton:

As much as I would like it —

Elena Kagan:

— it is —

Beth A. Burton:

As much as I would like it to be an adequate and independent State law ground, I’m not sure I clearly have that here —

Samuel A. Alito, Jr.:

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 res judicata”? And the first one it lists is the Batson claim.

Does that suggest maybe the court had two reasons for what it did? It’s barred by res judicata, and it would fail even if it were not.

Elena Kagan:

No.

But that —

Samuel A. Alito, Jr.:

Well, I’d like the — I’m sorry.

I’d like counsel — (Laughter.)

Elena Kagan:

Sorry.

Beth A. Burton:

Yes, I think it — if — if anything, it is an alternate ruling.

Ruth Bader Ginsburg:

But doesn’t Georgia have the rule — Georgia, the 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.

Beth A. Burton:

Yes.

Ruth Bader Ginsburg:

New facts is essentially a different claim.

Beth A. Burton:

Yes, Your Honor.

Ruth Bader Ginsburg:

You may be right or wrong as a matter of conclusion law, but that’s the law of Georgia.

Beth A. Burton:

That is the law.

John G. Roberts, Jr.:

Thank you, counsel. MS. BURTON.

Thank you. Mr. Bright, you have two minutes remaining.

Stephen B. Bright:

Thank you.

Very quickly, let me first say that with regard to what Justice Alito quoted that it’s just come to our attention since the trial of the case that Ms. Garrett cousin was arrested. That was on May the 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 is 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 is no mention of that at all. So I don’t think there’s any way — and then six months later, there is 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 United States v. Cartlidge.

But you can’t add reasons on into perpetuity.

Stephen B. Bright:

The reasons are the reasons articulated in — in Miller-El, and the prosecutor has got to stand or fall on the reasons. With regard to the questions, I — 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 aides, 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 — 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 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 had asked: What about your child who was arrested? He was put on probation — he was — $180 of — can I have just a second? — $180 restitution, and he went off to the — this is in the record — went off to the Navy, served his country honorably, got an honorable discharge, and came back.

That —

John G. Roberts, Jr.:

Thank you, counsel. The case is submitted.