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tv   Key Capitol Hill Hearings  CSPAN  May 24, 2016 2:00am-4:01am EDT

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most homes lack the design features that would allow people to stay longer 3.8 percent of housing units are suitable for individuals the difficulties end communities? senior friendly infrastructure such as transportation will maintain streets and affordable closing - - housing said consider the recommendations aimed at the individual and that the community's that are part of the problem that also become more aware of finances nearly 40 percent of individuals over 62 will have financial assets of
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$25,000 or less. . .
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to do this we have a lot of discussion that we can't come too important recommendations thank you for the opportunity to do this and want to share a quick comment before start my remarks this report has a great deal of information the numbers are very real film matter in each and every community across the country but it does point out solutions that are open to other ideas as well and it is a call to all blast with public policy to
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understand the interaction between health and the communities that we live in and a great opportunity exist if we understand that. there is conversation going: in the health care space to understand how important those factors and reconsider a nontraditional and certainly seniors but the health care that contributes into a premature mortality the physical environment and makes a great deal of impact on your individual health the greater importance for greater americans to spend a great portion of their time in their home increasingly seen as care those that have
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health and wellness services for those with chronic conditions with the rapid expansion more and more americans are living with multiple chronic conditions and limitations of daily living. 68% of medicare beneficiaries have multiple chronic conditions and as a result 93 percent of medicare spending is spent on these people some understand of multiple chronic conditions to provide care for seniors has the potential to improve outcomes to reduce that in significant ways one is
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there is evidence that this works and it is growing attention across the country. the at home model that housing when combined with support and services can slow the rate of growth of medicare spending and johns hopkins shows how taylor, interventionist can help to avoid hospitalization and. in the innovative ways in to build on the strong foundation to read so great housing and learning from all of these different elevations bidders alien to
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much bigger numbers. the task force including key actors in the national health care system of course, medicaid and medicare with medicare advantage plans to tackle some of these issues head-on and health care professionals quite simply the report is a call to action to the entire health care community and to go through a few of the opportunities that we think that can make a difference first for the most of vulnerable seniors with the enhanced care coordination
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and there are 1.three ranchers who live in subsidized housing the vast majority is duly eligible for medicare and medicaid. they recommend the center's for medicaid services or cms has innovation in coordinating health care and long-term care services for medicare beneficiaries living in public housing. health care providers have partnership would implement evidence based care models to be accountable for the al comes in reducing cost eligible applicants would receive payments of the beneficiary on a monthly
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basis to make investment of care coordination and infrastructure including supporting housing services. second had an opportunity to help poor outcomes in seniors to be very specific is one out of three older adults paul each year but sometimes quite dramatically resulting in 2.5 million emergency department visits with 700,000 hospitalizations and $34 billion of the annual health care cost it is very disruptive and difficult and sometimes a life ending experience for them and tragic many are preventable
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but yet most occur in the home. that is why we strongly recommend that medicare reducing false a top priority opportunity exists to incentivize and provide technical assistance cdc has that steady as a great resource and also looking at the system the providers to be held accountable and there are opportunities for false based prevention programs with an effort to modify homes as they talk about the upside is enormous
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with fitness and movement as that turns out to be real issue. so some very simple examples if you have an older adults and your family the third example the task force spent examining the role of technology in the home setting of healthy aging with an online survey of house and stakeholders to ask the question which are effective and scalable? interesting results about this they are included there
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but they can benefit considerably that patient monitoring to improve health outcomes. there are numerous barriers and costs that need to be reduced the prevent the adoption of a new technology in these barriers should be removed. so i will close by saying that this is an enormous opportunity as we know and we care deeply seniors over 65 so look out for each other and in a way to improve that reduces cost
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and and and it enables those senior stage successfully over many years. thank you. [applause] thanks to the cochairs for your remarks and if you could please join us on stage. >> i am hoping we will have time for question and answer but i wanted to ask a couple of questions on the minds of
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many of you watching so maybe we should jump right in the first talk about the cost implications of the recommendations and there are some items with respect to cost of health care system specs i am happy to say a few words but thank u.s. the leader of the task force of any other team of researchers and writers if we could take a moment to recognize those who are involved. [applause]
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>> a good part of the indigenous for this report is in fact, the fact that we are increasingly aware of the role of the cost curve of increasing budget expenditures costs related to medicare/medicaid social security are three of the most important drivers of deficits is a function dramatically as it is a mention 78 billion baby boomers that causes the number of people over 65 years of age to double in 85 triple with increasing medical cost and the most expensive years where they
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find themselves in lowe's expensing housing ever have a nursing home in the medicare law dash medical care needs so anything we can do as a country by enabling people to stay home longer to have care and home peace of mind as rawl positive aspects it does cost some to extend home services to create the support system but the expectation is that those costs are less than what can
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be saved for the most expensive form of care. there are numerous studies done over the years this spoke about trying to create a plateau by what they call compression of the years of morbidity the standard expectations that there is a steady decline and a cost increase over a steady period. that if you can find ways there is a shorter period in which we all concede to the frailties of life and those
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concepts are all implicit in this report to mention the personal experience two summers ago mother lives in the home that she and my dad bought when they were married and raised five children 69 years and cannot be talked about leaving the house even after i bother died it would have taken dynamite she knew the birds and was her garden and her house. and she fell down of 2014 and it went downhill from there. in the lost her by november so there is a four month period that was very difficult the she had been at her home perfectly happy in functional at 90 until
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that moment so i lived through the implications of% sustained in a place where they can be happy with an inevitable difficulty but if we could create those circumstances for more americans they would be better off in the country as a whole would be better off as well. >> talk about the role of the private sector we know about the low income housing tax credit in leveraging the private sector investments and their other recommendations engaged in an affordable housing and modification had we get the private sector more involved ?
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>> they strike a great balance with the potential of savings as well as in gauging the private sector of what would be considered of a low income tax credit i had the pleasure to work with senator mitchell he prides itself as being at the birth of the tax credit and one of the successes is there is a tremendous desire for investment for the benefit they received so some of these recommendations psycho modification if you make it more suitable for someone to live in the home and 90 but so often that is not the case because of the constraints and there is so many things to be a tremendous opportunity with
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the role of technology. still looking at those areas of opportunity remember the not-for-profit sector and the private sector will be engaged in a way that i think can create a much more sustainable program. when we have the experience of local government had to look to another program in a better and smarter way with that tax credit with the recommendation we made a couple of years ago has been picked up by senator hatch who is chairman of finance
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so it's a bipartisan opportunity for something good to happen where over the years people say i would invest thousands or millions more if i could have the extension so we need to keep that in mind going forward as we try to think of solutions for the long haul to make it more sustainable and also realize that it will require all of the above not just not-for-profit in order to get it done in a way that is sustainable with tremendous challenges. >> focusing on health care the task force makes a number of recommendations from the medicare vantage plan nonprofit hospitals with the recommendations
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that you outlined as removed from volume to value and then realizes outcomes is this the time to become a top priority? >> there is a great deal of conversation about all the social and environmental and situational factors that relate to health care that people simply cannot get to the hospital they can't fill the prescription because they cannot make it there or as if they had cataract surgery be he knew he had space to take care of him when he got home and was afraid to get it done but
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the fact is that someone went to his home to talk to him to say we will help you with the eye drops to make sure you know, what is being done to make sure you have a successful outcome that can have been over and over also referring to a community partners who can provide these services as the invite the caretakers into their homes or for the families that may not be functioning but they also say this is a stress on the system to provide all this care so we have to think about health care dollars
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being spent with critical visits in the home it is wonderfully successful with nurse practitioners and independent health care providers and bringing health care and house calls back again and not requiring them to come to the hospital so it's an interesting time and time for innovation. to make sure the financing model is extremely important and obviously with managed-care because it was just continue to grow with the dramatic impact on families with successful and healthy aging they can stay healthy longer and those who are newly 65 and happens
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every day hopes that is the case that they are relying on policy makers to talk about the community partnership to allow payment for services and look at what is happening in medicaid or a variety of states to look at the best practices. >> that is great. we're living in interesting political tide in the final six months of when congress and administration of a powerful presidential election. [laughter] so how feasible is it for the next congress to take on
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the recommendation called for today? >> we have of a couple of reasons people may be negative about that one is general dysfunction and the other is the inability of congress to come up with big ideas with budgetary problems because we can't talk about this for a long time that both of those will get better from our standpoint that may not be true for every policy area but some and you remember the famous economist.
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with the unsustainable trend is not unsustainable. there is a lot of truth to that. the truth is most members of congress will tell you they don't like the fact that if you talk to them individually or small groups there really want to accomplish things i don't know what exactly precipitates that that will be possible but to do what we talk about today was a basic fact politics drives policy making in the average age is going up that is the other side of the clean the political potency of senior lawyers and their kids to
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have to deal with these problems so there is a constituency and i really believe with the things that we talk about with the broader war arabia of policies the biggest problem as i mentioned it is not that we won't do anything but we will do a little later than may shed in the of thoughtful way and in the way of other expenditures adult think we will go one time responding to the problems to expand the constituency. we could do wrong and in a way that is too expensive that and said subordinating every of their priority so
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it is a great value of the task force to encourage thoughtful action before it becomes a tidal wave. >> those that demand action is a bipartisan consensus so there's almost no words to describe of how potent this is for the country and even has national-security dimensions the very
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character of the country itself it she leaves them with not decent housing so that is truly a global problem we see japan european nations, and that will confront issues with the yen under manpower for social security help system so this is our whole peer group of the industrialized nations and besides that watching people who live their whole lives to for a variety of reasons have not ended up with enough money
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at the end of the day minorities or marginalized when they're the most frail or most dependent it just isn't fair or right to plan so badly so this is truly a powerful need. >> so with experts of housing in the health care policy so there will be discussion of medicare and medicaid would is interesting about those proposals health care system of self and of those factors
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around that individuals. but it does bring together zero word does about communities. they want to stay in their home or in their community. of that bipartisan policy center but those older americans with quite a bit of overlap so are there a whole variety of more affordable levels of housing? and that works for you to.
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and then in the communities as well and i appreciate that. with housing in the home and the place for seniors live. >> we do want to open that up. >> as a clinical psychologist in addition to medical care and shelter that is critical for a healthy life. i wonder when people stay in their own home there is that
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village movement so the home as the site of clinical care and with the fitness to walk to the park to the senior center for the ymca it isn't only about getting their or the exercise. and that is extremely helpful.
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and with that social interaction is difficult. in that is bring you that as well. that they need to assess the situation so with that beneficiary. we're not mandating that people have to stay in place that perhaps the social interaction and the other of
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walking distance as the energy policy those who have gone to the hill to come to washington to do nothing. a but other than that i should have left before i intervened soviet-era is to find one way to make the country better because it thought his comments were so are appropriate but this is something that i'd think we can move forward.
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and there is a number of ideas and i am also an optimist. so now i will have to excuse myself. [applause] >> one or two more then we have to wrap up. >> end with age ended come in the existing resources with those single homes and that is the modification is hard. and that is very important but there are those in the middle income areas that have resources to make those
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middle-class deletions to make good use of dollars her troy and in several forms with the recognition of more appropriately scaled and excessive rise steep new units those who leave the mansion in the suburbs to find something more suitable size wives for the widow after husband has passed or engaging couple so that is one issue so now everybody is excess arising because they have too many stairs or reach up to the cabinet's they cannot reach because they are too high and the
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need to handle to pull that. all those things we need to figure out how we provide assistance for people for homes that are appropriate for their age. with the weather is asian of homes with the loss of heat from houses so why wouldn't we tried to do a home for life conversion a life span on conversion? with assistance to make those changes?
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>> i work for secretary caster on this issue we're convinced there will not be a partisan solution so we feel like this is a crisis to see so clearly before it strikes and that is so rarely end within those public discussions need to maximize the agreement. and aging is a universal aspiration and as such has the ability with a broad base consensus to have the consideration on the solutions for middle america andrea very concerned about
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the amount of mortgage debt and the other piece that they think about are the modifications to those that are not modifiable and what does that mean? and as they are building our rebuilding senior housing? are those other also affordable to seniors? >> she knows more than i do. [laughter] >> there are those blowing prototype homes and then you
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put in a grab bar in the restroom to be a deterrent for younger people you don't put that in now just build a wall strong enough so when the time comes. to be suitable for very fit many families it is not harmful to the interest of those later on. so those of working on the floor plans to do that as a city of all ages but also has workout equipment and they are doing that. chattanooga.
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and places that these are happening and how do you build the city for all ages. how do you build housing if it is in walkable distance and then not put in the pediments. em with the telephone poll right in the middle. end intention maliki and that is non costly the awful way to make the communities better.
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>> ended is not exactly easy to get in and out of philadelphia. and those factors are very difficult for older adults. and can be quite problematic but maybe a are better off if there were no sidewalks to drive 3 miles or 5 miles to get to the supermarket. very different reasons better very isolating and problematic so the most vulnerable usually speak concerned and we recognize that but even those who have resources is extremely expensive if you have
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resources well beyond your means if you go into a retirement community it is not affordable for so many americans and that is a real stress but just don't wait until that moment to figure out how they're in the suburban areas where there is a town center and a main street that doesn't have to be planned for but is available and then you can make up half down to the park to watch the kids so we all need to think about publicly financed and assisting the communities because there will be a lot of seniors out there looking
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for places to live and hopefully. >> i think hud could play a major role i know you're talking about some venues and i see mike in the audience who is formerly assistant secretary of policy development but looking read other departments to take the lead to make a difference like the program that goes to localities why can a portion of that the designated to deal with transformation? you did in silly almost touch a thousand communities across the country with that. may be controversial and
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with congressional consultation but some of that money already exist it just needs to be pressed to a national need. . . nicki will help us close. >> my job is not to keep you in
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your seats too much longer. want to give a few more credits to folks. when you have a year-long effort there are a lot of people to thank, and we've been hard at it. a number of people have been thanked to special thank you to bill hogeland, vice president here and a leader in our effort and hound ground the task force throughout its process to be fiscally sound and aware of all the impacts or recommendations bill we having, putting them out and being responsible in that. also, we tried to practice what we preach in breaking down silos internally at the bipartisan policy center stocker work coastally with our health policy team, katherine hayes, trying to make sure our policy efforts are coordinated, as well as bill mentioned in the production, our economic security team, this kind of response to the last two questions that we're talking about, how to get raid -- get
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ahead of the challenge and what to do about middle income households. on june 9th our commission for retirement security and personal savings will be issuing their report, so please tune in for that. we'll address home-ec witness issues as -- home equity issues as well. really relevant to the topic we excused here today. and thanks to our staff, dennis, helped our process, andy winkler, senior policy analyst, and jake, our project assistant. one other thing i want to say, the effort does not stop here. so, my other job is to say that we, as bpc, are committed to this report and the recommendations we released, and many of you have been a part of our process to get us here, but the effort continues, and we always say when a report comes out here halfway done so likely
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months more of actual advocacy and education work around the recommendations here. so, please reach out to us, dr. park and i, to figure out ways to work together to advance what is in here and the work you're doing using our bipartisan platform. thank you all for coming and for your patience staying overtime. [applause] [inaudible conversations]
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both -- you can always have -- as miller recognizees -- >> well in response to justice sotomayor's question, if the prosecutor argues a laundry list of reasons for striking a black juror and some of those are reason -- some are imapplause able -- implausible, how should the court -- >> the fact there is a laundry list suggests in and of itself that the court should scrutinize the reasons carefully and 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 everybody -- is going to encourage a party to give as many reasons as possible and hope one will be acceptable, and
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in this -- >> don't you think this is case-by-case? suppose there's one reason that is a killer reason. like this individual has numerous prior felony convictions, and then the prosecutor says, in addition, and this person didn't -- 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. under circumstance like that, couldn't the court say, well, there's one reason here that would -- that is clearly a justification for premotor re strike. we don't have to determine whether there's evidence that the person was looking down at the floor. >> well, first batson said and the subsequent cases said you look at all relevant circumstances. it mate be if all the circumstances that are there are the ones you said you would come to the conclusion that of the two reasons there was a valid reason. suggest where you have indicia like we have here -- we have an arsenal of smoking guns in this case.
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>> a lot of the smoking guns were in the original considerations by the georgia courts. seems to me what you would have to establish to reverse the georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a batson violation, the new smoking guns would tip the scale. isn't that the issue the georgia courts decided. >> 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, batson turns on the feasibility of the reasons, turns on the credibility -- >> but all i'm saying and you seem to be agreeing, it's not the overall batson judgment that is before us but, rather, the judgment that the new evidence did not suffice to create a
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batson violation where none existed before. >> no. our position is when you look tell new evidence with all the other evidence at trial, that all relevant circumstances considered together, considering it a lot of these reasons we now know from the notes, well now know from the notes there were misrepresents with regard to these ropes. the georgia supreme court, just as an example, justice scalia, upheld the strike of miss garrett on two bases '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 cooperate have possibly been a reason for the strike. >> and you are saying in answer to justice scalia, when you hand the notes, those notes cast doubt on some of the prosecutor's justifications in the first round. >> they do that, and they show misrepresentations to the court and they show an overarching
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goal of separating out the african-american citizens, treating them differently, and then putting them on this list of definite nos. >> mr. bridget, just to make sure i understand, all the notes in the prosecutor's files were new. is that correct? >> yes, knew to this case. there will three people. the two prosecutors and the investigator who put those together. i would like to reserve the balance of my time. >> thank you, counsel. >> miss burton. >> host: mr. chief justice and may it please the court. there are two important factors in this case when reviewing the entirety of the evidence. one is the petitioner bears the burden of establishing clear -- >> i asked you as well to address that certiorari question first. >> and respectfully i disagree with petitioner's counsel on this issue. believe norfolk, western railway, versus miles, the is this court's opinion, indicates
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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, that the georgia supreme court denies discretionary reel view, then it is -- review then it is before the thiscourt on certiorari. >> i don't think this discretionary review. the 11th circuit found it's not under georgia law. reading its opinion seems grounded in the state law of georgia. >> yes, your honor, and that is a hot button issue right now in the state federal courts in georgia. but our position in that -- those cases and i think there's a case before this court on that same issue -- is that georgia's statutes specifically says that is a discretionary appeal. the 1975 habeas corpus act made it's discretionary appeal because the georgia supreme court was getting inundated with appeal after appeal. >> that the georgia supreme
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court ever said anything one way or the other whether it's discretionary or not. >> in two cases, read versus hopper, 219 southeastern 2 inside 409 and smith vs. nickels, 270 southeastern 2nd 2nd 550, 1999, they both state those as discretionary. they heave -- have not answered a certified question on that issue. >> could you give -- >> 219 southeastern 2d409. a 1975 case. >> are certify questionses available? >> i believe so. >> i looked at the statute, the statute says, in habeas case, state habeas, that the georgia supreme court must review it. it says must review it. unless it's without merit. i forget the exact words.
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>> in state -- i think it's 914 52, state habeas cases out of other pel las review and makes that discretionary. the georgia -- >> then i've been looking at the wrong place. you heard -- he quoted some words. i don't remember the exact words, but it was from a statute in georgia, is that georgia statute said -- i just canned 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. does that ring a bell? does it ring a bell. >> it does. >> what are the exact words. >> die not know the exact worlds but i believe -- >> the exact word are that certificate of probable cause will be issued when there is arguable merit. >> but i believe that's rule 36
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of the georgia supreme court. >> i'm thinking of 914 52 in compliance with that. does that govern this case? >> i believe the statute would trump -- >> the chief justice just read from georgia law, govern this case? the answer is,ey or no? >> no, i believe it's -- >> they do not govern this case. >> i believe -- >> what in your opinion is the georgia statute that says that those words you just held do not govern in this case. >> i believe it's 19 -- i'm certainly open to question -- 1914 52 states state habeas is taken out of other appeals which are normally directly appealed or prisoner appeals and they are discretionary. >> i suppose that a court could have discretionary review but could provide by rule that in the exercise of our discretion,
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we will grant any of these unless it's patently wrong. maybe that's what happened here. and if you use your discretion to enact a rule which says you will take cases of a certain court, does the taking of those cases still remain discretionary? that's a nice question, isn't it? >> i think the taking of the case remains discretionary if they find it has arguable merit and the two case is cited specifically reference. >> you just decided to uniformly exercise your discretion in a certain way. >> correct. 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're insistent upon their discretion being discretionary. is that correct? >> that is my understanding.
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because this law applies to not just obviously death penalty cases but the multitude of nondeath penalty cases -- >> seem sorry. i'm so confused i can't even -- the state habeas process is different than the regular appeal process. >> that's correct. >> in the regular appeal process that's look at each case with discretion. >> on a direct appeal process, it certainly capital cases it is mandatory review. >> okay. in state habeas they have a rule, an internal rule, that says, we'll take every habeas case unless it's -- it has no arguable merit. right? >> if i may rephrase. think the rule says they will take a case if it has arguable merit. -- >> in the positive. >> right. >> what would lend us to believe that they didn't look at the merits and say there what no
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arguable merit? that they just said, we're do tao busy we don't care if there's arguable merit do you believe they did that? >> i -- i would never say -- that would be their reason but i thick they would say -- they do have the records before them and we don't see arguable merit to take this case up. >> so that is a decision on the merits. there's no arguable merits. >> think it is a finding there's nor arguable merit to the application that there has been error below, if that makes its any clearer. >> now it's clear. >> in your view, cert should have granted to the georgia supreme court. >> i believe it should have been grants the the state habeas court because of that discretionary review, and because i believe this court has said in michigan versus long, i think -- if a its unclear, it comes from the state habeas. >> can i ask one more quick question?
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you made reference -- this is an issue that is being litigated in the georgia courts? is that right? the the 11 circuit. >> , that. >> this precise issue. >> this issue. >> thank you. >> what issue was that? >> which court certiorari should be directed to? >> well -- >> the issue of what? what is the issue that -- >> am i right that the issue is whether the supreme court review in cases like this is discretionary or not dregs snaer. >> that's correct. in those cases obviously it's coming up from federal court so we're degree move with harrington vs. richter and a different scope of things in that regard. >> the question is in both the georgia supreme court and in the 11th circuit? >> it is currently in the 11th 11th circuit. don't believe we have a case pend now in the georgia supreme court on that particular issue.
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i do believe it's -- there is an issue in the case jones very chatman where they asked for rehearing. >> would this be an appropriate case to exercise our discretion to certify the question to the supreme court? >> we would certainly like an answer from the georgia supreme court on that issue. i think the 11th circuit would like that as well. it would clear up both state and federal law for a number of things. >> does the statute that permits the georgia supreme court to certified questions do you know anything about the history of requests for certification? some states have the process this be supreme court rejects the question. >> die not. >> what if we hold it is not discretionary review and then in these cases that are pending the georgia supreme court says, it is discretionary review.
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who wins? >> is it ultimately a question for us or the georgia supreme court? >> i think it's ultimately a question for the georgia supreme court as to what the state law is. >> why? me, too? can i good to the merits? is that all right? 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 think had basically said we don't want any of these people, here's the one we want if we really have to take one, but all the evidence suggests a kind of singling out which is the very antithesis of the batson rule. so, isn't this -- i'm just going to ask you. isn't this as clear a batson
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violation as the court is ever going to see? >> i don't think it is, and i think because these notes that we have, they don't undermine any of the findings that were given by the prosecutor in his strikes, particularly of mr. hood and miss garrett. they certainly can be internal pretted in two ways -- interpreted in two ways inch our response brief to this court -- we don't know when he say this is why these highlights are there. there's a rome explanation, just as -- a reasonable explanation, just as mr. foster has given speculation. >> what's the reasonable explanation? >> the reasonable explanation is four months prior to trial, as was previously argued, bastion just came out. batson is knew. 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, there's a racial disparate in 179 jurors and that's the list that is
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challenged, the 179. there's racial disparity of the blacks on the list. the day of trial he refiles that. so i would be more surprised if there wasn't some sort of highlighting or -- >> in other words, the argue. you're making is that the reason he highlighted all the block jurors in green and said, black, what about the black jurors and all these different things-was because he was preparing a defense in case of a batson challenge. >> correct. >> so was this argument made before your main brief in this case? >> it was not, and that's -- >> it was not. so if that had been his real reason, why isn't it a little surprising that he never thought of it or didn't tell anybody? until you raise this argue in your main brief? >> and i would say that's on state habeas counsel.
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well relied on our res judicata bar throughout state habeas, and then after that basically defended the factual findings 0 -- >> i think we have two arguments. one is the argument he 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 four 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 because i'm just so tired. and besides i promises my frequented 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 has now given me five different reasons. what die think of those reasons? >> well, in this case -- again, think this -- >> one may be valid. >> correct. and the other ones also -- day haul may be valid but not as strong as the first one.
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but in this case, i think the important part -- >> wait. the point he gave 40 different reasons and the very fact he gives 40 different reasons and many of them are self-contradictory, obviously not applicable, totally different from -- that's why i used my grandchild analogy. 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. tell me why i'm wrong. >> you have to look at the time period this was done. this was done not a year after bastion came out, and even throughout the transcript, defense council and the prosecutor say we don't know where bastion is going so in this case the prosecutor, dealing with batson, the first time in history anybody has had to put strikes on the record -- >> he is simply wrong. he puts down if it comes down to
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having to pick one of the black jurors, miss garrett might be okay. >> that's mr. run del, the investigator. >> that seems to me to undercut the argue. we, they're just -- they made a mistake of -- in batson, sure, it was new but they're wrong. >> well, let me say i think that's why there was a laundry last because he was ease spousing every reason he had. with tornado in lundey's notes -- that was the investigator who said if we have to choose a black juror,s is one. >> the def until no list -- >> the only person that was asked about that was mr. lundey, who supposed he cannot identify who wrote the list. so, we don't -- >> we know it came from the darn's -- d.a.'s office.
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>> i don't think that was ranking of jurors because when you lack -- they did score jurors throughout. >> there were five african-american jurors. on the defendant it in -- one of them was miss garrett, said if we have to have one, garrett, but garrett then shows up on the definite no list. >> correct. >> weren't we told that the only three people who did the investigation on batson were the two prosecutors on the case and mr. lundey? if mr. lundey says i didn't make that list, it has to be one of the two prosecutors. >> one of the two prosecutors and one was not there on the day the jury was struck, on mr. lanier was. but if that's not mr. lanier's thought process of the definite no list -- i don't see that gets you to clear error in the striking of mr. hood or miss
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garrett. >> seems an out and out false statement. the reason was given -- one of the reasons for garrett being struck is that her cousin was arrested. 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 how could it possibly be a rope at the time of the voir dire. >> don't think the record bears that out if the highlighted notes that petitioner wants to say these were used during voir dire, these were used during the strike, in those notes --ing this is that joint appendix page 256 -- angela is written beside miss garrett's name in mr. lundey's notes where he said he wrote down things he knew prior to the strikes, prior to voir dire, what he knew about individual jurors, he wrote down, as to marilyn garrett,
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angela garrett is a cousin, and then mr. lanier testified -- >> did the habeas court provide an excuse and say -- i'm sorry. didn't the habeas court accept he didn't know at the time of trial he just knew that lundey didn't want her? >> the habeas court credited the fact that mr. lundeyed a advisedded trial counsel that angela garrett should not be strike. >> that was his explanation for why the prosecutor didn't know about the prior arrest. >> i think the state habeas court crediteds that as one have the facts of the strike. >> mr. lundey didn't want her. he never credited or never said that he knew this -- that he knew about the arrest. >> actually mr. lanier testified twice, though, that he was aware at the time of jury selection he knew about --
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>> mr. run disdid but the prosecutor didn't. >> no. in the motion for new trial, that mr. lanier, the prosecutor, testified and said i knew during voir dire mr. run detold me that. that's the joint appendix 105 and 112. >> didn't he also testify -- this is on 14 of the reply brief -- it is ham could tower attention since the trial of this case that angela garrett was arrested? >> it says on that page of the -- on that part of the transcript, which is cannot explain to you no contrast to the notes it is noted she is the cousin prior to the jury selection, unless that means -- i read it several times -- since that time she has been dismissed from her job. again, it's unclear -- >> what about the giving a prone for dismissing her that she was close in age to the defendant? she is in her 30s and he was
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18 or 19. >> when mr. lanier initially explained his strike he does state her age so he is not trying to say she is 23 or -- he states her age as 34. and throughout the overall theme was, we don't want younger jurors. we are looking for older jurors closer to the age of the victim, age 79. so maybe the -- no, it's not the most are articulate flaming 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, make ore break factor. a similarly situated white juror also struck for that same purpose. >> miss burton, wouldn't you agree -- a lot of these batson cases you'll have reported justifications which they could support 0 valid per rem tori strike, right? -- premotor re strike but the
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question for the court was did they support this valid like 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. it's if it was clear that the prosecutor was thinking about race, you agree with that of. right? >> i think if his intent was to strike based on race. >> right. 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 someone or other might have been properly struck by a prosecutor isn't really the question. the question is on the total amount of evidence before us, including all these prosecutors' notes, what was going on with respect to each of these peremptory strikes, and then you have to deal with not just oh, could have been this or that, but you have to deal with all
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this information that what it really was, was they wanted to get the black people off the jury. >> what the notes show, begin with mr. hood and miss garrett -- they're contemporaneous notes taken at the time of trial as to each of these jurors are the reasons they struck them. there's no derogatory comments within the notes. >> where there are other reasons that are plausible but could be phony, surely it's the judge that hears the testimony who is best able to judge whether asserted reasons are phony reasons or not. isn't that right? >> yes, yourself. >> sort of hard for us to do it an cold record -- it's harder. no impossible. >> justice scalia raises a good point but no in a case where all the evidence of intentional discrimination was not before the judge at the time. >> i don't think there's clear
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error here on these notes of racial discrimination. their strikes are sound. as 0 mr. hood you would not want mr. hood on the jury regardless of his race. the ron he gives a laundry list, like i said, may well have been because we were in 1987 and you're putting out everything you can because you're not exactly sure what you're supposed to do. >> why weren't the notes turned over earlier. >> the notes were not turned over earlier -- it was brought up in the motion for new trial, in november, right after the trial in 1987, and the prosecutor, mr. lanier, says i will give my notes to the court to look enbank if defense counsel will do the same. defense coup did not do so. that was on direct appeal. the georgia court found it was work product and didn't have to be turned open. when we got to state habeas proceedings they found an open records request and they were immediately turned over. don't the there was any argument
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at that point. >> what do we do with the failure to ask miss garrett any questions about the issues that troubled the -- for example, he 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 have no idea where they're in jail. don't know them. so, he didn't ask any questions. doesn't that show pretext? i'm not going to inquire because she might get off the hook on that. >> well, i think a number of times -- ill know this court's precedent on not asking questions, particularly in voyeur voir dire but as to a number of issues, when you're in voir dire and asking questions you don't necessarily care what the answer is because with regard to mr. hood, if he had said, yes, have a son that's been arrested, it's not going to
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bother me a built you prosecuted my son. >> well, stealing hub caps in my mind is decidedly different than murdering people or attacking them the way this case was -- this case was about. i can imagine a father -- why can't you imagine a father saying, it was stealing hub caps. he should have been punished. >> he may well have -- >> the restaurant sports -- >> a risk the prosecutor didn't have to take. if you have somebody -- as i said mr. hood could very well have said that and meant that and never have been lying but in any mind i'm thinking he's going to get black and think, oh, i don't know about this. ...
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>> >> on the basis of race. that he goes on to say in addition there is no good reason now or then and says accordingly the court finds the fact of claim is without merit such as the paragraph i would think the reason the
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judge found it in your favor there is absent a claim in your favor he could've gone on another ground but at worst why isn't it ambiguous? then why do we take note then aren't we required that the judges on the federal ground? that is justice alito question and the hardest point feet over cut and i want to hear your response. >> i agree it is unclear. >> that is the end of it. >> that is the end of it. it is not clear but one other issue. >> in georgia if you have tax or evidence. >> then the court gets to
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look at the issue and go beyond. >> was to have new evidence the court finds that they can be viewed the evidence then i take your beyond the bar. >> i don't think it is what you said say bad again. [laughter] if the issue has been decided on direct appeal and you cannot go back to and that you cannot overturn the state's highest court but if you have new evidence such as this case and it is strong evidence the court feels it has to look at that evidence and it did the you are beyond that race. >> that is exactly how it is framed because it talks about the claims that it lists many claims and then a
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bunch of claims that have defaulted and then this is in a separate issue with all the other claims that there are very determination's be made the first sentence of my sentence are very clear the court finds the prosecution did not violate. the last sentence on the merits the petitioner loses. >> as much as ever bite that to be adequate. >> as a preliminary matter we note the following are not reviewable in the first is the claim that suggest maybe the court has two reasons?
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and it would fail even if not? >> yes. if anything it is an alternate ruling. >> the supreme court has said georgia law allows that claims for when you fax develop because of a claim that is based on facts the did not exist at the time of the direct appeal is a different claim you fax is a different claim is essentially. >> yes your honor that is the law of georgia. >> counseled you have two minutes remaining cemetery quickly let me first say first is what justice alito'' did it has just come
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true our attention that since the cousin was arrested that was made first after the verdict was returned in this case and second if you look at the joy dependents where they give the reasons there is no mention of her cousin whatsoever in there that is the time when she should have been mentioned after the strikes were made and there is no mention at all soweto think but then six months later moving for a new trial now the prosecution gives reasons that they didn't give before to say she was a social worker but she was not in her cousin was arrested but they did not know that at the time and she is loaded, but you cannot add reasons into perpetuity the reasons those were listed is
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regarded to the questions that i just want to make one quick point but with regard to mark that dumb kid who had both teachers' aides and literally right in the same neighborhood they had kinder-care and students no questions what kind of children do you have? the also said familiarity with the neighborhood eight cater 20 miles away. and they lived half a mile. so now some more questions to provide a difference within to be treated as a
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liar and there are others examples. in regards to the child if you would have passed and he was put on probation. $180 restitution
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