tv Politics and Public Policy Today CSPAN May 23, 2016 4:51pm-6:52pm EDT
just a driven social conscience. lastly, let me suggest the segue into day two, three, and fou has a good foundation now. if we don't break through the commercial media, if we don't develop alternative media, democracy cannot thrive. jefferson -- [ applause ] -- thomas jefferson was only half kidding when somebody askeded him, what would you prefer, mr. jeffer son, a government without a prepreprepa free press without a government? he'd say i'd prefer the later. we do not have a free press for most hours on television and radio. we have a commercial investment
using our property free, the public airwaves. tomorrow will be the most coordinated, informed, diverse critique of the mass commercial media ever brought together in one day. and one of them -- [ applause ] -- and one of the presenters will be arguably the greatest promoter of the first amendment in the 20th century, phil donahue. nobody -- [ applause ] -- nobody demonstrated a belief in the first amendment like phil donahue. he brought on his show, again and again, people who despised him, who disagreed with him, who assailed him, that's the ultimate test of the belief in first amendment. he will discuss how he broke
through one taboo that was conventional taboo for most of the other media after another, and opened huge areas of american life and voice to expression. day three will be waging peace over waging war. we want to get rid of this idea that peace is something weak but war's something strong. our wars have failed again and again, and you will see the documentation of that by some of the most extraordinary presenters, people who work for the state department, the cia, people who fought in wars that they wished they never were part of, criminal wars of aggression that are boomer ranging against us all over the country. the traditional peace groups that had these vigils every
sunday in the village grain and people drove by them, sometimes tooting their horn, sometimes snickering, and day four will be breaking through the congress, the most underappreciated instrument of democracy by all too many people. if we recover the congress, and we have the votes, and we have the people and we have the left/right alliance on so many major redirects, we turn around to the federal government, we affect the state and local governments, we enrich and nourish what media covers, serious content, and we say to the next generation what we are going to pass on to you is something that we can hold our head in pride in so doing. and if we don't do that, if we
don't fulfill our modest potential with time, talent and resources, what is posterity, what are our descendants going to think of us? we don't have to guess. the use of time is under our discretion. the use of discretionary income and savings for many people who are not poor is under our discretion. we turn the time and the resources in our talent in direction of a functioning democracy that takes these solutions off the shefl and puts them on the ground and liberates the political and civil civic energies of the people, and you'll see change faster than you can ever conceive of it. let me end on this note, those
of you who came today. we appreciate those of you watching by live streaming, we appreciate. but i hope some of you will start passing out $bill. has jefferson on one side and the other, the room where the founders came to sign the declaration of independence july 4, 1776. okay, there are all white males, some of them had slaves. but in signing that declaration against the most powerful army in the world, controlled by king george iii, they thought they were signing their death warrant for them it was an ability of supreme courage, in part of self-interest, in part a broader
♪ ♪ live at 5:00 p.m. eastern, great britain and the european union with conservative party member of parliament in favor of britain's exit from the eu. national referendum scheduled for june 23rd. while we wait for the event to begin, a look at possibility of the impeachment of irs commissioner john koskinen.
>> first guest, cleta mitchell. good morning. >> good morning. >> could you give viewers a sense of story viewer not following along? give a scope of what's going on as far as this issue is concerned. >> well, the targeting scandal began in, i think, 2010, maybe even as early as 2009, where groups applying for tax exempt status with irs, if they had certain names, words in their names, tea party, patriots, if they had certain purposes, that he had included as the purpose for their applying for exempt status, those applications were quarantined for several years and subjected to unnecessary delays and burdensome questioning, et cetera, all of that has been established by investigations and starting with the report of the treasury inspector general for tax administration, issued in may of
2013. and since that time, we've had litigation against the irs, congressional investigations ensued immediately after the report in 2013. it is those congressional investigations and what happened in the aftermath of that that has led to the calls for impeachment of the irs commissioner, john koskinen. >> something you agree with? >> i do agree with it. it's important for congress, the institution of congress, to ensure that officials who come before them who mislead or lie to congress and congressional committees in testimony, i think that it's really important for congress to hold those people accountable. >> another hearing takes place on that -- on those issues this week. you talked about the series of investigations beforehand. why do you think we need another investigation? >> this is an investigation that goes straight to the point whether or not impeachment is a proper remedy. just to fill in one little gap,
when the irs scandal broke publicly, when the report was issued in may 2013, there was an acting irs commissioner, the irs commissioner had retired or resigned, and so there was an -- >> lois lerner. >> no, steven miller. lois lerner was head of the exempt organizations unit, and it was under her watch and steven miller's watch and the prior irs commissioner, doug shulman, that this all occurred. and so there was an acting commissioner who was fired by the president, president obama, may 15th, 2013, and he appointed an interim, acting, another acting irs commissioner, danny wer full. december 2013 a new commissioner nominated and confirmed by congress, and took office in january of 2014. and that individual is john
koskinen. and when he took office, just to give you a little bullet point of what the em pichmeimpeachmen is prem isd upon, when john koskinen, at time he took office as commissioner, he should never have been nominated, never confirmed. this was at a time when the irs was under siege for politicalization of exempt organizations, john koskinen was an active partisan donor, given over $80,000 to democrats presidents, president obama, hillary clinton, in the ten years preceding his becoming irs commissioner. so it was a very bad idea to put him in that job in the first place. but at the time he took office, there was an outstanding irs congressional subpoena for all of lois lerner's e-mails that had been issued in august of 2013. so four, five months later, no response. and in february of 2014, another
subpoena was issued for all of her e-mails. now we're on john koskinen's watch. but there was an out standing subpoena when he took office, another subpoena in march 2014, commissioner koskinen testified that he would turn over all of lois lerner's e-mails. and in june of 2014, we learned in a letter that they buried -- some had been lost. he testified twice he all had been lost. turns out they weren't all lost. by the time the investigates got to them they had been aeraerase. >> we leave this program. this is a discussion about great britain and the european union featuring a conversation party member of the house of commons. we take you to the heritage foundation. this is live coverage on c-span3. >> chris has been a member of the british parliament since 2001 where he's held a number of senior positions both in government and opposition. he was educated at cambridge,
and the same college as oliver cromwell, for those english history buffs and is sats cromwell's skull is buried somewhere at chris' old college. america, we call that real history. there's been a lot of hot rhetoric about brexit from the white house and i'm happy that chris is hear to explain what brexit could mean to the united states. it's also appropriate that chris delivered a brexit address on his trip to america in the united states congress. why? because it was an older congress, the second continental congress, that had its own vote for independence and adopted declaration of independence. a vote for brexit would be a british declaration of independence from the european union. i cannot predict with any
certainty the outcome of the brexit referendum next month, i know for certain special relationship between the united kingdom and the united states willen dur regardless of what the outcome is. i wish to introduce my friend, chris. >> thank you, george. ladies and gentlemen, it's a privilege and an honor to address you tonight here on capitol hill. what is a crucial time for my country, actually for both of our countries, and it's a time when a fierce debate is raging about the uk's future. i express my thanks to heritage and george holding for making tonight's event possible. now, i'd like to get to a bit of alternative history. i want to start by asking you to imagine a cold february evening, perhaps new hampshire, back in
2008, a young presidential hopeful, maybe a new senator from illinois, turning up in front of a crowd of potential supporters on a campaign visit. and i want you to imagine him making a powerful speech advocating change for the united states. it's a tough and complex world, he might have told those supporters. no one country can stand alone. we have to face up to challenges together. of course, we are a proud, independent nation, but there's so much more we could achieve. there is a better way for the future. this, he might have told that crowd, is my vision for the future. we would be better off as part of an american union of nations working together to secure a stronger future for our continent. i want that union to bring together all of the nations of
north and south america, it should have its on parliament and the institutions needed to support it. now that parliament should be in a neutral location. what about panama city? a place on the cusp of the two halves of the americas. we should give that parliament the power to make the majority of our laws. and it's right, you know, we should have common rule in areas like the hours that we work, rules that govern our transport system the way we manage agriculture and fisheries, the way we regulate our banks, the way we operate our sales taxes, the way we manage aviation. all of these things would be better done by an international organization rather than by us here in the united states. oh, we should allow other countries to add voters and decide what happens here in the united states, even if we disagree with them. and you know we should have a supreme court of the americas,
perhaps in mexico city, to outrank the u.s.' cone supreme court and take decisions that will be mandatory in the united states. we should even consider having an army of the americas and do away with antiquated whys like the united states having its own military. and to achieve this dream, he would have argued, we have to give every citizen of the americas the right to live and work wherever he or she chooses across the whole of north and south america. why shouldn't every mexican have the freedom to move to new york city if they choose? they should be no restrictions on movement at all. so, if the young aback obama turned newspaper in new hampshire in 2008 and made that speech, exactly how many votes do you think he would have got? not a lot, i suspect.
suggesting and the united states should be part of an organization does not seem to be an obvious way to gain a presidential platform in this country. but, ladies and gentlemen, that is exactly where the united kingdom finds itself today. we have joined such an organization. it began as an economic partnership, designed to facilitate cross border trade, much the same way the nafta does here. but it has become something very different. it isn't yet a united states of europe, though i will explain, it is on that path, but it is closer and closer to becoming a single government for europe and indeed many key players have that as a clear goal. given the issues that the eurozone faces, it is inevitable that it will reach the point of becoming a full federation. now, from the perspective of the
united states of america, equivalent body on the other side of the atlantic might seem theoretically attractive. people here in washington describe europe in a way that suggests it is seen as a single entity. i really want to disabuse you of that. the united states and the european union may be comparable in terms of size but they are very different. it is much more realistic to think the comparison between different parts of the european union, in terms of the comparison between the united states of america and bolivia rather than the comparison between nevada and maryland, we're talking about different countries, different histories and languages, different cultures, different economies, huge gulfs between them. it is those gulfs in a continent that has tried to precontinued that they do not exist, that have brought the eurozone to the point of collapse and led to
social breakdown in many parts of european union. greece has been the worst example. but there are others, too, youth, unemployment in spain is near 50%. so i want to tell you a little bit what i think has gone wrong and about why the united kingdom should not be part of what comes next. and also, why it is in the interest of the united states to stay outside the argument. the seminal moment for the european union came, in my view, 17 years ago with the creation of the single currency. the countries that joined the euro created the economic equivalent of the san andreas fault. they tried to create a single economy in a geographic area, where there was no single government, no common culture, no commonality of performance and where traditional escape valves when things go wrong, it underperforming nations, simply
disappeared. so the countries in southern europe ran out massive deficits living the life of royally off the back of a strong currency where the drag ma and lira should have fallen on the exchange markets forcing countries back to a degree of rectitude. but the greeks retire at 55, ten years earlier than anyone else, and they hope that somebody else would come along and pay the bill. you know what? someone else did come along and pay the bill, the germans, european central bank, imf stepped in to prevent a collapse. about you you can't carry on doing that. in a single currency area, if things look doubtful, the wealthy transfer all of that money to safe havens in places like frankfurt, run on local banks brings them down. no rescue is not an option. but it's hardly an acceptable option to the citizens of the countries that have to do the bailout.
of course, that is where the eurozone finds itself now, and it can't carry on that way. this way, they've managed to stabilize things once but it is hard to see how they could withstand another major shock. but there's no easy solution, either. you can't just kick a country out of the eurozone without creating a massive collapse either. if greece had been forced out of the euro, it would have been left with a devalued currency, unable to afford to pay its euro denominated debts, defaulted, and left massive losses across the continent. and then, the pressure would have built up in other countries, and the contagion would have spread. it would spread again if and when all of this happens once again. so, the inevitable future is starting to take shape. my former uk government colleague william hague, former foreign minister said once, the euro is like a burning building
with no exits. they have no choice but to make it work. no choice at all. there had to be a bailout, of course, but the rules have to change. you wouldn't have tolerated a situation where the u.s. bailed out argentina and had absolutely no control over argentinean policy after the bailout. you wouldn't do it in the united states. who on earth thinks countries in northern europe would agree to things going back the way they were before? and that leads them down a single inevitable path. it means political union. there is no other way. there has to be a single government for the eurozone. there has to be a united states of the eurozone. the plans are already taking shape. angel la merkel, the italian finance minister, french president, hollande, the presidents of the big eu
institutions have all called for political union. it means according to president hollande a eurozone parliament, a common budget, and a common cabinet. inevitably, it means giving up independent nation status. that is the decision they took back in 1999, when they created the euro. european terms, it really does mean finishing off our equivalence of the fictitious american union, not just with a parliament in panama city but with a single government for all the americas there as well. europe has no choice but to make its version of fiction a reality. and they're getting ready. beginning preparations now. a whole new raft of european legislation to harmonize a new range of powers held by member states awaits us the other side of our referendum in june.
there is a title wave of more europe ahead of us. so where did united states that leave the united kingdom? we didn't join the eurozone in 1999. and only 19 of the 28 member nations of the eu have so far adopted the euro. only two nations, us and denmark, are not committed by treaty to do so and the rest recommitted to joining euro two months ago that david cameron reached with other leaders. it's true we don't need to join the euro. we don't need to join the passport-free area of europe that's caused so many debates during the refugee crisis. we can opt out of some justice and home affairs measures. but the deal that our prime minister did in brussels in february cemented those opt-outs it gave us a few extra protections against being sucked into a european super state but
didn't change things. the eu will still make laws for us in the same way. we can still be outvoted on almost anything and we are regularly. the european court of justice will still act as our supreme court. all of those same areas of our laws will be made in brussels. for example, it's the job of brussels to decide on the working conditions in our factories and our offices. to decide on the environmental rules that can hold back the development of new housing estates. to set the standards for transportation system as we travel to work. to decide who can be defined as the silence seeker. whether we levy a tax on tampons as luxury product, believe it or not, that's a true one. how our farmers work the land. the rules that govern our oil industry in the north sea. how cancer research is conducted. laws on consumer protection.
how powerful are vacuum cleaners are allowed to be, another true one. the rules on fishing in our waters. the aid that we can provide to struggling industries like steel. the hours that doctors work. and like i could carry on giving you examples half of the evening. it is a process that continues year after year after year. now the way it works is this, the european union is governed under two documents, the list bond treaty and charter 0 of fundamental rights, both vaguely worded documents that vagueness gives freedom to those in the european institutions who seek broader powerser to the european union to mission creep, in brussels, which take control of more and more new areas of activity. the one that irritated me recently was when, you'll see the stories of two heroic americans who wrestled a
terrorist to the ground on a train in the netherlands. the first reactions in brussels was to say securities on our trains is a major problem. we must take control of it in brusselss and not leave to governments. that is the mentality of brussels. as the member countries of the eurozone move to unify more and more of the way they govern themselves many changes will be applied to the uk as well because we're already subject to eu-wide legislation in those areas. so, for example, if the eurozone, as they integrate more closely, take a decision about how to operate their banks, britain and the city of london are affected by the same rule changes and we can do nothing about it. as the eurozone federates and eu becomes a single bloc with a single government, what does happen to that bit stuck on the edge? the united kingdom? we will have little ability to defend our national interest, we
will be outvoted all the time but more and more, our law making will be sucked into brussels. we will be of marginal importance politically, we'll still foot a large slice of the bill but outvoted again and again. the united states, our friends and allies, would never ever, ever accept that here. why should it expect its closest allies to do so? that is why we must leave. but where does it leave the united states and our mutual friendship? no two countries have worked more closely together over the years to secure peace, democracy, prosperity wherever we can than the united states and the united kingdom. some of the great international partnerships have been between the leaders of cur two countries, roosevelt and
churchill, truman and atley, thatcher and reagan, leaders who worked together to shape the world in which we live. we stood side by side in two world wars, in korea, in kuwait, in iraq, in afghanistan, and now syria, as we work to tackle the threat of daesh and try to bring peace to the war torn country. we forged nato alliance in the aftermath of war. we stood firm where our allies to ensure that peace reigns in europe and expansionist of the european dounions were resisted. today the work we do together continues as strongly as it ever has. our intelligence professionals work side by side in a seamless battle against the threat of terrorism. perhaps more than any two countries on earth, we share
fruits of those labors in a way that strengthens our mutual security and that of our allies around the world. but our relationship is about so much more than security. the united states is britain's biggest trading partner. the united kingdom is one of the biggest international market forfor u.s. goods and services. we share cultural roots, year and year, after oscar ceremony, british actors, actresses, production teams, feature high on the nomination lists. u.s. tv is challenging the best of british on uk tv channels. our people crisscross the atlantic to share in the experiences that each of us has to offer. but above all, we know we can always count on each other. even when the united states faces challenges elsewhere the
relationship between our two countries remains vital for both of us. now, when barack obama visited london in april, he made it very clear that he believes britain should stay in the european union. a number of other u.s. politicians have made a similar argument. often they have done so with honest intent and with what they believe to be the best interests of the united kingdom at heart. but, ladies and gentlemen, the view from washington isn't really the best way of what judging what is right and wrong for the united kingdom. i think president obama was wrong to insert himself into the debate in the way that he did. in the same way that the united kingdom should respect the big decisions taken here in the united states, so the verdict on the future of the united kingdom
must be one for the people of the uk alone. inside or outside eu, britain's relationship with the united states will, and must, remain strong. neither of us should ever be at the back of the line when it comes to working together. if britain chooses to leave, our partnerships in defense, in intelligence, in counterterrorism, in trade, and in culture, should remain strong and unchanged. neither of us would benefit from growing apart, and neither of us should want that to happen regardless of how britain chooses to shape its future. we have a unique and special relationship that has survived changes in government, changes of circumstance. that relationship will, and must, stay strong regardless office how the british vote in june.
as david cameron himself has said, i believe our best days together lie ahead. ladies and gentlemen, our friends here in washington and across the united states should understand the challenge we face, should understand that dilemma as the eu changes, should understand that people in the united states would never accept the same situation that we together today find ourselves in. i hope and believe our friends in the united states should stand aside, leave the united kingdom to reach our own best view about how we secure our future. thank you. applause an [ applause ] >> i'm happy to take any questions, if anybody has any. yeah? lady here.
>> london mayor was very firm in the way that he rebuked obama's comments in april. i'm wondering if you share his opinions that he outlined in the op-ed for "the sun" i think? >> there are things that president obama said when he came to london that i profoundly disagreed with. i thought there was ascending congrewty in the faing it could take ten years for the united states and united kingdom to agree to a trade deal when it took two years to agree with the australians and two years with the canadians than didn't really feel like a comment from a close ally. my suspicion was that there were quite a lot of politics at play in what he was saying. so, i mean, yes we did disagree with barack obama said. i would hope very much britain would never be at the back of the line when it comes to discussions on any matter with the united states. we are the people who are at the end of a phone line when it is a national crisis hits and i hope we would always be.
i thought barack obama was making political comments but not ones i felt were consistent with what i would have hoped to hear from the country i regard as our closest ally. other questions, anyone? yeah. >> can you say a little about the uk trade outside the european union? once you depart the european union, presuming you do, you will have to or you would like to presumably negotiate trade deals with other nations around the world, and indeed with the european union itself. >> i think the important thing -- let me deal with the european union. we are their biggest market. outside the european union, the united kingdom would amount to 17% of eu exports. we are a critical market. we run a huge trade deficit with
the european union to 60 billion pounds a year in goods alone, it's 100 billion pounds a year. only offset by the fact we have a surplus in the services. so we're a crucial market to them. and the discussion seems to always take place in the prism of our access to the single market. i look at it the other way around about the deal we will do with them to ensure that they can continue to access the united kingdom market, crucial to something like 5 million employees across the european union and to key industries like agriculture and france, like automotive manufacturing in germany. so, i am actually confident we will carry on trading normally with the european union. we have free trade arrangements at moment. i see no reason why that should change. it's not in their commercial interest to do so. when it comes to trade deals around the world, there are a number of deals to which we are already party, those would continue, unless those nations chose to impose tariffs which i think is utterly imy lly improv.
we can't do right now, negotiate our own free trade deals. past the world fast-growing dynamic economies, and you have to look internationally, europe's being left behind. it is not where the growth of the next 20 years is forecast to be. that is in asia. actually ironically for britain, it's across commonwealth countries where we are not currently legally able to do our own free trade deals and it seems to me a very strange situation that we cannot negotiate as lead country in the commonwealth free trade agreements across the commonwealth. so my view is that we will carry on trading with normally with the european union because it's in their commercial interests to do so. we will be able to push ahead with better trade deals around the world. i'd like to see us do a deal with the united states, even though it is already our biggest trading partner. my guess is it will be a lot easier to agree between us on a bilateral basis than agree a
deal between the united states and 27 other members of the european union. i see nothing to suggest that we will do anything else except develop new trading relationships and grow. interestingly, chief economist of the world bank said as much recently. gentleman in the back. >> i want to know how do you reconcile -- obviously sovereignty's the foundational premise for a brexit. there seems to be a huge lack of support of the brexit in scotland, in northern ireland. how do you reconcile this notion of we need sovereignty when, you know, populations who formerly advocating for evolution of power were outright independents seemed to be leaning towards union with europe? >> the gap in scotland, for example, is not as big as sometimes suggested, likewise in wales. but i think we have to look this through the prism of us being
one united kingdom. we've had a referendum in scottnd will, voted to stay as one united kingdom. we have to vote as one united kingdom. there has been talk if we leave the european union, will scotland try and pursue a second referendum, separate from the united kingdom, rejoin the european union. two big reasons i don't think that will happen. the first is that the collapse in the oil price has left the foundations of the potential financial position of an independent scotland extremely shaky. if they had become independent in march, as was their intention, then they would be in deep trouble now, big spending cuts and big tax increases. the other point is that there is no way they would allowed to rejoin the european union. from the point of view of the spanish, who have a problem with catalonia, which also wants independent from spain, if the spanish accept the principle that scotland and leave the united kingdom and join the european union, that would be
the same as happening in catalonia. gentleman in front. >> with the terrorist threats in europe european at moment, comment on the impact a possible brexit would have with uk/eu intelligence share. >> the point of uk/eu intelligence sharing our key relationships in intelligence security are with the united states, they're with countries like israel, countries like saudi arabia, countries in asia, and, yes, we work closely. and of course the five is that met here in washington recently. i would argue that our security services and indeed those based in the city are the best in the world. they are an invaluable source of intelligence that allows other eu nations to protect their set accidents and that sharing will continue because they want it to
continue because they need the expertise that we have to protect their citizens. of course, around the world, security relationships are all bilateral. there's no obvious reason, in my eyes, why we can't have bilateral relations either with the european union as a whole or individual member states of the european union in the way that we do with united states, canada, israel, saudi arabia and the rest. i don't think we have to give up our national sovereignty in order to work together to combat terrorism. and since they need us to help them protect themselves, it's inevitable they want to continue that cooperation regard office what happens. >> do you think a brexit would have implications for the ei's relationship with russia, in terms of expressing potential lack of unity in the face of increasingly tense relationship? >> i don't think so because the organization that has made the
most difference to standing up against any expansionist tendencies from the soviet union and which has been in the front line now against potential expansionist pressures from today's russia is nato of which we remain a key part. we will remain a key part. interestingly, in the eastern mediterranean, where there's an operation to slow down flow of migrant into europe, it's a nato operation, not a european union operation. and so, i'm absolutely confident that we will be able to continue to work together to resist any attempt by russia to expand its sneer of influence in europe and i don't think our membership of the european up on or nonmembership of the european union will change at all. >> how much [ inaudible ] perhaps less tangible issues of cov earnty, freedom, and how is that breaking down? >> well, i mean it's certainly the case if you look at on the
ground campaign, two issues that are at the fore, for the remaining campaign it's economic doom, gloom, disaster follows if we leave, i think with some slightly exaggerating claims, ooh i have to say. on the leave side, the principal argument around the cost of the european union and pressures that come from having unlimited migration within the european union and therefore the pressure that's placing on our public services. our population's rising by the equivalent of large to medium sized city every year and that's something we don't believe can be sustained. those are the two key yves at the heart of the battle. but i think the sovereignty point is one that needs to keep being made. it's about us being able to tack back control of democracy and right now, we have lost too much control of our democracy. and i have experienced this over many years as a uk minister representing britain in the
council of ministers in brussels where i have found myself powerless to avoid changes that will materially affect britain and british business. the european on onis not good at cost. these are things that uk government, i believe i should be able to say no to, they damage my country but i can't. yeah, gentleman there. >> do you think president obama's comments will help or hurt the brexit cause in the long run? >> interestingly, i they they hat a counterproductive effect a lot of people heard them, thought well, actually, why is the united states telling us what to do? and i've heard quite a few people out on the streets saying they were deeply impressed about what he said. i'm not sure it was an entirely bad thing from the point of view of those campaigning to leave. but i think that message i gave you earlier is very important. we've had a number of interventions by u.s.
politicians, by u.s. military figures. i don't think they have thought through precisely what they are arguing for and against. they are arguing for us to continue to give up our ability to govern ourselves as a nation. this isn't an economic exercise. the european union is no longer an economic project and hasn't been for a long time. it's a political project. it has always had the goal of ending up in political union. but the decision to form the euro is what made that inevitability. and i don't think that's fully understood by those in washington who have inserted themselves into the debate in the united kingdom and one of the reasons i'm here tonight, i'm -- one of the reasons i'm doing further meetings over the next 24 hours, is to explain to people here why actually this is a very different debate than the one i think many people here expect us to be having, imagine
that we are having. this is seen through economic prism or defense prism. i don't think people understand the degree which we are giving up our ability to govern ourselves. any other questions? yeah. >> the political impact of the vote on leadership and the conservative party, if you can, you know, whether the uk decides to stay in or to leave the eu, if this sort of opens up riffs within the conservative party moviing forward, if you can comment on that at all? >> actually, the way it has developed so far is the relations within the conservative party are remarkably good. yes, we are having a lively debate. yes, a few public exchanges. but i have seen no evidence of
acrimony behind the scenes and i'm confident we'll be able to unite again afterwards. i'm firmly of the view david cameron should remain prime minister come what may. those are if leave wins, he should go. i think that's nonsense personally. we voted to leave last thing i want us to do is start the process off by having a leadership contest, elect a new prime minister a year into the parliament. i think that would be a mad thing to do. but also best placed to lead us out. he's the got the relationships with key european leaders. we have to work this out. there is a formal process. formal process never end up being what they're appearing to be on paper. he needs to sit down with key european counterparts, work out how to do this, discuss the broad terms how to carry out working together. i want us to carry on being good friends and neighbors, i just don't want to marry them. and you know, we have to, i
think, find modus operandi for the future there are too many areas to work together we don't have to do as part of emerging political bloc. we can do it as friends and allies in the way that we work with the united states as friends and allies. yeah? lady there. >> thank you very much for copping over. we really appreciate your insight and willingness to engage in this dialogue. and i admit this question is stemming out of ignorance. i've seen headlines today about additional directives coming out of brussels that would limit political free speech about the european union and i was wondering if that's something you've looked at all and what the article seems dering what t is and how concerned on censorship of british freedom of the press, should you stay within the eu? >> i've not seen any particular suggestion that they would seek
to limit freedom of the press. there have been a number of changes to data protection rules and particular right to be forgotten which came out of a european court recently which certainly allowed some people to remove articles about themselves from search engines. i don't believe they're realistically trying to sensor people from criticizing the europe europen union. certainly doesn't mean that they don't make determined efforts to make sure that individuals associated with brusselss are always saying nice things about the european union. it is a condition, for example, of eu pension that you can't attack your former employer. but there is a dimension that did cause me concern that there has been a push in brussels to enable the european union to override some of the constitutional principles of
individual member states if the eu decides they're not consistent, with, for example, the charter 0 of fundamental rights and there's issues in hungary, hungarian government has been criticized by the european commission for some policies and changes it's made to its constitutional arrangements and the way it's working its courts, for example. that poses an interesting dilemma because while you may not necessarily approve of changes made by an elected government it is an elected government. and i think it would be a dangerous step for the european union to start to put itself in a position to override constitutional arrangements of individual member states. but a sense that's going to be superseded as they move towards integration of the eurozone. there will be in the end a single government for the eurozone, i'm absolutely certain a single cabinet, treasury, and so, in reality, that control will happen without any degree of consciousness, it's just inevitable part of the chain that's going to come.
gentleman in the back. >> what is your contingency plan if the referendum is for the uk to stay in the eu? how will you protect your sovereignty? >> the truth is the british people will have taken a decision to stay and the things i've described, i believe, are inevitable. we will find ourselves in a position, five, ten years down the road where we are less and less in control of the levers of power in our country. it's not going to mean we are completely run by the federation of the eurozone, we're not part of it, in a variety of areas of law and i listed a few tonight, i could go on for several hours walking through the areas of competence of the european union because there are so many and the lisbon treaty is vaguely worded it enables them to do anything that they've chose to do. for example, social security, under the terms of the treaty,
social security is a member state competence, it's a matter 0 of the national governments of the eu members. but the european court of justice decided that the rules of around the free movements of european citizens were more important than those provisions that gave member states power of their social security and so therefore it has started to take more and more decisions how we should run our welfare assistance. now that's one example of where mission creep comes from. i don't have a contingency plan because there is none. we have voters change in something in a way we described and we find ourselves less able to look after our national interests. i don't suggest we rush out and fight the battle against next year. five or ten years down the road the british people will be saying, what on earth is going 0 on here? any other last questions before we wrap up? is that -- okay.
>> at 7:00 p.m. tonight, live on c-span2, afghanistan's ambassador to the u.s. talks about current events in his country. u.s./afghan relations and regional security challenges. the world affairs council is hosting that event. >> our campaign 2016 bus continues to travel throughout the country to recognize winners from this year's student cam competition. recently the bus stopped in massachusetts, to visit several winning students from that state. they went to the same school in foxborough w. all students first through eighth attended school ceremony to honor seventh graders for their honorable mention video titled "gunning for safety" the bus also made a stop to paul r. baird school for the winning video "veteran
services" and james elliott won for "lgbt rights, stop the dis-crip natidis cr crimination, two honored in front of others receiving $250 for the winning video. you can view all of the winning documentaries studentcam.org. >> the supreme court today ruled 7-1 in favor or of a black georgia death row inmate finding that prosecutors unlawfully excluded potential black jurors from his trial nearly 30 years ago. chief justice roberts in his ha jort opinion wrote, the prosecution's file plainly demonstrates concerted effort to keep black prospective jurors off the jury. state argues it was actively seeking a black juror but the claim is not credible. justice thomas the sole dissenter. the oral argument from the case is about an hour.
>> we'll hear argument, first, this morning in case 148349, foster versus chatman. mr. bright? >> mr. chief justice, 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. >> mr. bright, maybe you could address, first, the question we raised on friday with respect to which court certiorari should be directed to. >> yes, your honor. we filed the petition originally session, errey to the supreme court of georgia b. and the courts in sears versus upton issued ser issu issued certiorari in a similar situation. it appears to us from looking at this over the weekend that r.j. reynolds tobacco company versus
durham county the court decided in 1986, the cord said unless there was positive assurance that the decision was not a ruling on the 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 harm aony with one another, the rule nonetheless is to be granted if there is argument merit to the case. >> 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? >> i think what the court has own in all these cases is look through to the last recent the decision. that could be the decision of the h-- it is denied sum may
recall -- >> you say we would be reversing the georgia supreme court, not the habeus court. and all that the georgia supreme court held is that there was no arguable basis for its accepting review. so if we reverse that decision, we tell the georgia supreme court, you're wrong. there is an arguable basis for your accepting review. so we ought to remand to that court, requiring them to accept review, it would seem to me. >> how can we reverse them on an issue they never considered? >> well, that's what happened in rj reynolds, almost an identical
situation where you had an intermediate appellate court that had ruled then you had the north carolina supreme court denying a review. the question was do you issue review to the appellate court or to the supreme court. we want to end the confusion about this and so it goes to the state supreme court. there's no difference in our situation here and the situation that rj reynolds -- >> but you're saying in that case or in other cases and if so which other cases that in that situation we nonetheless addressed the reasoning of the intermediate court? is that what you're saying? >> you did in sears versus upton, case out of georgia in 2010. that was certiorari to the supreme court of georgia. >> is there an argument that the petition for certiorari could go to the trial court? i mean, our statute says it goes
to the highest court in which review could have been had, which sounds like the georgia supreme court on the other hand as justice scalia said, they directed their attention to the issues before us. i'm not sure to me that it's an option to go to the superior, to the georgia trial court. or is that incorrect? >> well, what this court has said, both in the rj reynolds case and then that was followed in grady versus north carolina this year in which once again there was an intermediate court decision denied by the north carolina supreme court. i can remember all the way back to 1960 there was thompson versus louisville where certiorari was to the police court in louisville kentucky where no court in kentucky could
take the case because the fine was less than $20. >> they'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 the supreme court has said just denied, nothing more than de denied, we look back to the last reasoned decision. those are both decisions of this court and that's what you're relying. >> well, and they're not mutually exclusive. this court can look back to the last recent decision in making a decision in this case. and i believe that's what it should do. at the same time, the court's opinions appear to us on the quick research we did over the weekend on this that rj reynolds and the subsequent case say that
the certiorari would issue to the georgia supreme court. and we listed it that way. then when the case was docketed here, it was listed that the -- >> what if the state supreme court wrote a very short opinion and said we're not going to determine whether there was, instinin fact -- then you say that the whole issue of whether it was a correct application in batson is the issue that we have to decide. >> i think in rj reynolds i think that's this court's law, yes. >> can i ask you a question about another preliminary issue before you get to the underlying question in the case? the superior court said on page 175 of the joint appendix that the issue of the batson violation was not reviewable based on the document of res
judicata. and then it later said -- and this is 192 of the joint appendix, that it will review the claim as to whether petitioner has shown any change in the facts sufficient to over come 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? >> well, the state doesn't argue that. i think the reason for that is because the court said -- the court is going to address step three of batson and it said foster's batson claim is without merit. >> is it a question of federal or state law as to whether or not the petitioner has shown a change in facts sufficient to over come the res judicata bar, the page 192 language?
is that a state law question? thanch >> that's a state law question. here the court decided it. >> if it's a state law question, they resolved it against you, then what do you have to argue? >> in order to decide it -- this is actually like where the oklahoma court had to decide the federal question in order to decide whether it had jurisdiction over the issue. and this court held that where the court has to decide the federal issue -- and it did in this case. it clearly decided the federal issue and found that the batson claim had no merit. so it is decided, the federal issue. >> explain to me why deciding the federal issue was essential to its deciding the state res judicata issue. >> because it framed the question as being that it would
look at the batson versus 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 -- >> you think it was saying whether there's res judicata or not depend on whether the new claim has any merit? >> i think exactly. >> that's a very strange application of res judicata it seems to me. i thought it was whether there were changed facts sufficient to enough. >> well, the georgia law is that you can bring an issue that's been litigated already before direct appeal. >> right. >> in habeus -- >> even if it would produce a different result, right? >> if the facts are such that it would produce a different result, right.
>> that's exactly what the court said. >> so that's a ruling on the merits. >> i think the court said the b batson claim is without merit. that seems like a ruling on the merits to me. >> i think it said after redoing -- >> after considering these other facts. we think there were some legal errors made there, yes. but after considering these facts the court said that the claim was without merit. >> the court said that it would read step three again on the basis of the new evidence presented. and so they did it all over. and i guess that's -- you must take that as what happened if they did not apply a res judicata bar. >> no. i mean in ache this court said when the resolution of the state procedural law question depends upon a federal constitution or
ruling, the state law prong is not independent of the federal claim. and this court has jurisdiction. that's on page 75 of 479. >> i don't want to belabor the point too much, but are you arguing that georgia res judicata law is this, if somebody comes up with any new fact, 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? >> my understanding is the evidence has to be sufficient enough that the court did what i. it did in this case and rule on the merits of the issue. this was not a matter to just adding one more leaf to the basket. >> why is that in conjunction with justice scalia's question -- why is that an issue of federal law? >> because the court decided
that's an issue to decide the underlying state law issue. and i think ache is pretty clear on this. i commend it to the court's attention. since the race didn't raise this, it's not briefed before this court. but i think that's the deciding case on this. >> thanks, counsel. i think we have your argument on the point. >> thanks. if i could just say that what happened here was 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 jury. >> the prosecutor 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. >> to answers to this, justice ginsberg. these lawyers have programmed here for a long time in rome, georgia. they said the prosecutor had always struck all the black jurors. we asked the court not to let that happen in this case. now, of course if the prosecutor wants to avoid a batson challenge, they could have not discriminated. secondly, with 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. garrett might be okay. and the district attorney himself said, maryland garrett has the most potential of the black perspective jurors. in other words, the blacks were
taken out of the picture here. they were taken and dealt with separately. over the weekend the jury's questioning ended on a friday. and the judge said over the weekend you've got your chance to decide who you're going to strike. they knew exactly who they were going to strike because the jurors are listed in ordinary. there's no going back. there's no back striking 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 noes. these are the people who are absolutely not going to be on this jury. there are only six jurors listed on the list of definite noes and the first five are african-americans. the sixth is a juror who made clear during the voir dire process she could not impose the death penalty under any circumstances so the state moved to strike her for cause. the judge probabliy erred in no
granting that strike. >> counsel, at the time mr. linear said they weren't striking the jurors because of race, they were striking them because they were woman. i guess three out of the four african-americans who were struck were women. how does that -- and then that explanation has just kind of fallen out of the case. how does that affect the analysis? >> well, he did accept well though as well. bear with me just a moment. >> the court had not yet held that batson applies -- >> the court had not yet held in jeb that batson applied to women. the court did say it could be used as a pretext for women for
striking on the basis of race. in this case, the prosecutor struck three white jurors and then he struck the three black jurors, women, the three black women and the three white women. the final -- >> mr. bright, mr. linear answered yes when he during the trial, when he was asked whether he had done -- 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 background check? >> no. what that's talking about and the investigator said this in his deposition, was the color, race coded color list, those first four lists you have in the joint appendix in which the blacks are marked with a b and highlighted in green with a
marker up in the corner and green designates blacks. >> so your understanding of that statement was he had only done an extensive search on the blacks on the list? >> well, it's clear mr. lundy had prepared a list, notes in which he talked about just the black jurors in the case. i think the state concedes in its brief that the focus was on the black jurors. >> during the trial, did defense counsel when he made his initial batson challenge, not in the papers but at trial, did he again say this was part and parcel of the prosecutor's pattern? >> he didn't say that but i point this interesting thing out. when they discussed the batson motion before trial, there was never a suggestion 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. the defense had basically put their motion in writing and relied upon that throughout. >> i was just surprised that we didn't hear about this preparation for a batson hearing until the -- >> the defense lawyers at trial didn't move for the prosecutions notes and the prosecution opposed that. then when the prosecutor testified on the motion for new trial, he did something i've never seen a lawyer do before. he cut a bargain sort of with the judge and the lawyer saying i will testify but only if i don't have to show them my notes. the basic rules of evidence are if you testify and rely upon notes the other side can see the notes. but here the notes were guarded through 2006 until the open records act in georgia. >> the prosecutor said that -- they said we never vote to
authorize or relied on those notes. and you didn't call the prosecutors to test the veracity of that assertion. >> no. but all the prosecutor talked about were the color highlighted notes. each prosecutor files an affidavit 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. mr. linear says, i don't have anything else to say beyond what i said at the batson hearing and the motion for new trial. mr. pullen said, 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 noes list, the misrepresentation to the trial court that ms. garrett -- they wanted ms. garrett. that's what they told the trial court and the trial court relied
upon that in denying the batson motion. 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 veneer at the start one said turns out i know somebody in the family. she was excused for cause. the prosecutor implied clearly that had it not been for that extra strike that ms. garrett would have sat. at the same time -- and they're still arguing this both ways that they wanted her and didn't want her. they give 11 reasons for why ms. garrett would not be a good juror. that she's imp you denu that she's imp you dendent and
respect the court. those things are not really valid in terms of the reasons, because the reasons they gave here, many were democra false. lastly and what's so important, they different question the jurors about the reasons for striking them. they gave reasons for striking them. one question would have cleared up some of these. miller el says that the failure to engage in any meaningful voir dire is evidence suggesting that the explanation is a sham and a pretext. >> mr. bright, i have found some circuit courts that have a rule
appeal or on habeas which is if they can find one legitimate reason for striking a juror, that's enough to defeat a batson challenge. are you suggesting a different approach to the question? >> well, it can't -- i would suggest it can't possibly be. because this court said in snider versus louisiana that where the preemptory strike was said to have been motivated in substantial part by race, that it could not be sustained. i would suggest to you, it shouldn't even really say substantial, because if this court as it said so many sometimes is engaged in unceasing efforts to end race discrimination in the criminal courts, then the strikestrikes
by race cannot be tolerable. as pointed out here, 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, two of the reasons given out of a reported case. 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 lawyer in mississippi. you can always have as miller el recognized -- >> well, in response to the question, if the prosecutor argues a laundry list of reasons for striking the black juror and
some of those are reasonable and some of those are implausible, how should the court approach the batson analysis? >> 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. otherwise what the court is going to do is just simply encourage prosecutors or any party in a case, since batson applies to everyone, it's going to encourage a party to just give as many reasons as possible and hope that one will be acceptable. >> don't you think this is a case by case thing? suppose there's one reason that's a killer reason, like this individual has numerous prior felony convictions then the prosecutor says in addition, and this person 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 a circumstance like that, couldn't the court say, well,
there's one reason here that is clearly a justification for a preemptory strike. we don't have to determine whether there was evidence that the person was looking down at the floor. >> well, batson and the subsequent cases say you look at all relevant circumstances. maybe if the circumstances there are all relevant, you would come to the conclusion that of those two reasons there was a valid reason. we have an arsenal of smoking guns in this case. >> a lot of those smoking guns were in the original decisions by the georgia courts. it seems to me what you would have to establish to reverse the georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a batson violation, the new smoking guns would tip the scale. isn't that the issue? >> when the new smoking gun
tells you that the prosecutor misrepresented facts and dagave reasons that were demonstrably false and those were not clear but you have that now. i mean, batson turns on the feasibility of the reasons. >> 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 new evidence did not suffice to create a batson violation where none existed before. >> no. our petition 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 that there were misrepresentations with regard to these reasons. the georgia supreme court upheld the strike of ms. garrett on two basis, that she was a social worker and that her cousin had
been arrested for drugs. she was not a social worker and secondly the prosecutor didn't find out until after trial about her cousin's arrest. so it couldn't have possibly been a reason for the strike. >> you're 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. >> they do that and they show misrepresentations to the court and they show an overarching goal of separating out the african-american citizens, treating them differently and then putting them on this list of definite noes. >> just to make sure i understand, all the notes in the prosecutor's files were new, is that right? >> new to this case, yes. there were three people who put those together. i would like to reserve the balance of my time. >> thank you, counsel.
>> ms. burton. >> 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 -- >> i'll ask you as well to address the certiorari question first. >> respectfully i disagree with the petitioner's counsel on this issue. i believe norfolk western railway versus hiels indicated or states that if there is an issue raced in the lower court and it is raised in the supreme court and the supreme court denies discretionary review, then it is before this court on certiorari from the lower court. >> the problem is i don't think this is discretionary review, the 11th circuit found it's not under georgia law. i read its opinion. it seems pretty grounded in the
stated l ed law of georgia. >> yes, europea rkyour honor. that's a pretty hot button issue in georgia. our position in those cases and i think there was a case before this court on rehearing before that same issue is that georgia statute specifically says that is a discretionary appeal. the 1975 habeas corpus act made it a discretionary appeal. >> has the georgia supreme court ever said anything one way or the other as to whether it's discretionary or not? >> in two of their cases reed versus hopper and smith versus nicho nichols, they both state those as discretionary. but they have not answered a certified question on that issue. >> could you give me the reed versus what? >> 219 southeastern second 409.
>> are certified questions available in georgia? could we certify a question to the georgia supreme court? >> i believe you can, your honor. >> i looked at the statute. the statute says in a habeas case that the georgia supreme court must review it. it says must review it unless it's without merit. i forget the exact words. i was looking for them. >> well in the state habeas, i i think it's 1914.52. the georgia supreme court -- >> then i'd be looking at the wrong place. he quoted some words. i don't remember the exact words but they were exactly what i had read and it was from a statute
in georgia. the georgia statute said -- i just candidate find knit in my book here. the georgia statute said they shall review the case unless it's totally without merit, something like that. does that ring a bell? >> it does ring a bell. >> what are the exact words? >> i do not know the exact words. >> the exact words are that a certificate of probable cause will be issued when there was arguable merit. >> yeah, that's it. >> i believe that's rule 36 of the georgia supreme court. >> it's 914.52. compliance with that, right -- >> does that govern this state? >> i believe the statute would trump it. >> does the word that the chief justice just read from georgia law govern this case? the answer is yes or no. >> no. >> they do not govern this case. what in your opinion is the georgia statute that says that those words you just held do not
govern this case. >> i believe it's -- i'm certainly open to correction. i believe 1914.52 states that habeas is taken out of other appeals which are normally directly appeals or prisoner appeals and they are discretionary. >> okay. >> i suppose that a court could have a discretionary view, but would provide by rule that in the exercise of our discretion we will grant any of these unless it's patently wrong. maybe that's what happened here. if you use your discretion to enact a rule that says you will take cases of a certain court, does the taking of those cases still remain discretionary? it's a nice question, isn't it? >> i think the taking of the
case does remain discretionary if they find it has arguable merit, it is discretionary. the two cases i cited specifically reference -- >> you just decided that you will 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, they're insistent upon their discretion being discretionary, is that correct? >> that is my understanding. this law applies not just to death penalty cases but the multitude of non death penalty cases. >> i'm sorry. i'm so confused. the state habeas process is different than the regular appeal process. >> that is correct. >> in the regular appeal process they look at each case with discretion. >> on a direct appeal process,
and certainly a capital case it is mandatory review. >> okay. in state habeas they have a rule that says we'll take every habeas case unless it has no arguable merit, right? >> if i may rephrase, i think the rule says that they will take a case if it has arguable merit. generally they -- >> in the positive? >> right, right. >> 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's arguable merit. do you believe they did that? >> i would never say they were too busy to take the case. i would never say that would be their reason. but i think they would say we've looked at the case, because they do have the records before them, and we don't see arguable merit to take this case up. >> that is a decision on the merits. there's no arguable merits.
>> i think it's a finding there's no arguable merit to the application that there has been error below. if that makes it any clearer. >> now it's clear. >> and in your view, cert should have been granted to the georgia supreme court. >> i believe it should have been granted to the state habeas court because of that discretionary review and because i believe this court has said in michigan if it's unclear it comes from the state hab yus eas . >> this issue. >> thank you. >> what issue is that? is it the issue of which court certiorari should be directed to? the issue of what? what is the issue that --
>> am i right that the issue that's being lit gaigated is whether supreme court review is discretionary or not discretionary? >> that is correct. we're dealing with more harrington versus ricktor. >> and this question is in both the georgia supreme court and in the 11th circuit? >> it is currently in the 11th circuit. i don't believe we have a case pending now in the georgia supreme court on that particular issue. but i do believe there is an issue up here in jones versus chapman. >> do you think this would be an appropriate case for us to exercise our discretion to certify the question to the georgia 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. i think it would clear up both state and federal law for a
number of things. >> the statute that permits the georgia supreme court to accept certified questions, duo you knw anything about the history of questions for certification? some states have such a process but the state supreme court rejects the question. >> i do not, your honor. >> what if we hold in this case it is not discretionary review and then in these cases that are pending the georgia supreme court says it is discretionary review. who wins? is it ultimately a question for us or for the georgia supreme court? >> i think it's ultimately a question for the georgia supreme court as to what the state law is. >> why? >> me too. can go to the merits? is that all right? >> sure. >> 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 basically said we don't want any of these people, here's the one we want if we really have to take one. all the evidence suggests a kind of singling out which is the very antithesis of the batson rule. isn't this -- i'm just going to ask you. isn't this as clear a batson violation as a court is ever going to see? >> i don't think it is. 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 ms. garrett. they certainly can be interpreted in two ways. in our response brief to this court, we don't know when we say, you know, this is why these highlights are there, there's a
reasonable explanation just as mr. foster has given speculation in his arguments. we don't know. >> what's the reasonable explanation? >> the reasonable explanation in this case is four months prior to trial, as was previously argued, batson had just come out, batson is new. four months prior to trial defense files a motion, the strike of any black juror we're filing a batson challenge. he says there's racial disparity in the 179 jurors. there's racial disparity of black prospective jurors on that list. the day of trial he refiles that. i would be more surprised if there wasn't some sort of highlighting. >> the argument you're making here is that the reason he highlighted all the black jurors in green was in case of a batson
challenge. >> correct. >> if that's correct, was this argument made before your main brief in this case? >> it was not. >> it was not. so if that had been his real reason, isn't it a little surprising that he never thought of it or didn't tell anybody until you raise this argument in your main brief? >> and -- i would -- i would -- i would say that's on state habeas counsel. >> one is this argument that 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. then there's a second argument that he had about 40 different reasons and at least some of them could be valid. if my grandson tells me i don't
want to do any 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 my stomach is upset but i want to eat spaghetti. so he's now given me five different reasons. what do i think of those reasons? >> in this case -- >> one may be valid. >> correct. and the others ones also may be. they all may be valid but they may not be as strong as the first one. but in this case -- >> the point is he gave 40 different reasons. the very fact that he gives 40 different reasons and many of them are self-contradictory, obviously not applicable, totally different -- that's why i use my grandchild's analogy. my answer to my grandchild would be look you're not too tired to
do your homework. and his reason was to discriminate on the basis of race. tell me why this was wrong. >> you have to look at the time period this was wrong. this was done a year after batson came out. even throughout the transcript the defense counsel and the prosecutor says we don't really know where batson is going. 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. >> he's simply wrong. if it comes down to having to pick one of the black jurors, ms. garrett might be okay. >> that's the investigator. >> that seems to me to undercut the argument, well, they're just feeling their way and so forth. they're made a mistake of batson. sure it was new but they're wrong. >> first let me say i think that's why there was a laundry list because he was espousing
every reason he had. but regard to mr. lundy's notes -- and that was the investigator who says if he have to choose a black juror she maybe the next one. >> who was responsible for the definite no list? >> the only person that was asked about that was mr. lundy who was deposed and said he could not identify who wrote that list. >> there were only three possible choices. >> right we know it came from the d.a.'s office. >> and it exists it says definite no. >> correct. i don't think that was a ranking of jurors because when you look -- they did score jurors throughout. >> but there were five african-american jurors on the definite -- and one of them was garrett 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. >> correct. >> 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. >> it had to be one of the two prosecutors. one was not there on the day the jury was struck. only mr. linear was. i don't see that that gets you to clear error in the striking of mr. hood or ms. garrett. >> 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. 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? >> i don't think the record bears that out. the highlighted notes that petitioner wants to say these were used during voir dire, these were used during the strikes. in those notes and this is at joint appendix page 256 angela is written out besides ms. garrett's name. in mr. lundy's notes where he said he wrote down things he knew prior to voir dire about individual jurors he wrote down as to maryland garrett, angela garrett is a cousin. then mr. linear testified -- >> mr. linear testified -- >> i'm sorry. >> no. >> didn't the habeas court accept that he didn't know at the time of trial, he just knew that mr. lundy didn't want her? >> the hab yus court actually credited fact that mr. lundy had
advised trial counsel that angela garrett should be struck. >> that was his explanation for why the prosecutor didn't know about the prior arrest, correct? >> no. i think the state habeas court -- >> he never said that he knew about the arrest. >> actually mr. linear testified twice though that he was aware at the time of jury selection that he knew about -- >> mr. lundy did, but the prosecutor didn't. >> no. in the motion for new trial, mr. linear, the prosecutor testified and said i knew during voir dire mr. lundy told me that. that's at joint appendix 105 and 112. >> didn't he also testify it has come to our attention since the trial of this case that angela garrett was arrested? >> it says on that part of the
transcript, which i cannot explain to you in contrast to in the notes it is noted that she is the cousin prior to the jury selection unless that means -- and i over re've read it severa since that time she's been dismissed from her job. it's unclear. >> what about giving a reason for dismissing her that she was close in age to the defendant? she was in her 30s. he was 18 or 19. >> mr. linear initially explains his strikes. he does state her age as 34. throughout the overall theme was we don't er jurors. we're looking for older jurors closer to the age of the victim, age 79. it's not the most articulate framing of it.
i think it's more of a generational. she was younger. the age i don't think was a make or break factor. working at head start with under privileged children, a make or break factor. a white juror was struck for that same purpose. >> wouldn't you agree in a lot of these batson cases you'll have purported justifications, which they should support a valid preemptory strike, right? but the question for a court is, well, did they support this valid preemptory strike? in other words, what was the prosecutor thinking? batson is a rule about purposeful discrimination, about intent. it doesn't really matter that there might have been a bunch of valid reasons out there. if it was clear that the prosecutor was thinking about race. you agree with that, right? >> i think if his intent was to strike based on race. >> yeah, if his intent was to
strike based on race. it doesn't matter if he could have had a different intent that would have supported a good preemptory strike. so the question of whether, you know, 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 prosecutor's notes. what was going on with respect to each of these preemptory strikes. and then you have to deal with not just, oh, it could have been this or it could have been that, but you have to deal with all of this information that what it really was was they wanted to get the black people off the jury. >> i don't think these notes show that. what the notes show again with mr. hood and ms. garrett, they're contemporaneous notes taken at the time of trial with the reasons they struck them. there's no derogatory comments within those notes. >> are there other reasons that are plausible but could be
phony? surely it's the judge that hears the testimony who's best able to judge whether asserted reasons are phony reasons or not, isn't that right? >> yes, sir. >> it's sort of hard for us to do it on a cold record. it's harder, not impossible by harder. >> justice scalia of course raises a very good point in the mine run of cases but not in all the cases were the evidence of intentional discrimination was not before the judge at the time. >> i don't think there's clear error here on these notes of racial discrimination. their strikes are sound. as to mr. hood, you would not want mr. hood on the jury regardless of his race based on his reasons. the reason that he gives a laundry list like i said may well have been because we were in 1987. >> weren't the notes turned over earlier?
>> the notes were not turned over earlier although it was brought up for the motion for new trial in november right after the trial in 1987. the prosecutor mr. linear said i will give my notes if defense counsel will do the same. defense counsel chose not to do so. the georgia supreme court found it was work product. it didn't have to be turned over. when we got to state habeas proceedings they were immediately turned over. i don't think there was any argument about it at that point. >> what do we do with the failure to ask ms. garrett any questions about the issues that troubled? for 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 don't know them. but 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. >> 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. >> it's decidedly different than murdering people or attacking them the way this case was about. i can imagine -- why can't you imagine a father saying it was stealing hub caps, he should have been punished? >> and he may well have. but it's a risk.
>> but that's what the record supports. >> it's a risk the prosecutor didn't have to take. as i said, mr. hood could have very well said that, have meant that, never have been lying. but in my mind i'm thinking he's going to get back there and think -- >> i want to ask you a different question before your time is up. and i'd like you to respond to the question justice alito initially asked. you're familiar with the record. i read on page 192 of your record the decision. and the first paragraph supports the view that you would like to hold, i think, that this is based upon res judicata, which is a state matter. then there is the paragraph that was read to you on page 195 and 196 where the judge says, the reason that i reached that conclusion is because the notes and records submitted by petitioner failed to demonstrate
purposeful discrimination on the basis of the race was the basis, okay? that sounds like batson to me. then he goes on to say and in addition there's no good reason given, now or then. then he concludes, accordingly the court finds the renewed batson claim is without merit. if i read just that paragraph, i would think that 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 what's in the law, 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 over come and i want to hear your response. >> i actually agree that it's unclear. >> that's the ends of it, isn't it? >> it is the end of it. i think it's unclear. >> what do you think is georgia res judicata law? >> i think if you have new facts or evidence -- >> res judicata goes out the window. >> then the court gets to look at the issue and beyond. >> in this case -- >> in this case, once you have new facts or evidence and if if court in this case find they can review the evidence anew and a new review is had, then i think you are beyond that bar. >> i don't understand what you've just said. say it again. >> okay. if the issue's been decided on direct appeal and you cannot go back to it.
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. >> i think 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. then it lists a whole bunch of claims that are procedure lally defaults. and the court is very clear. first sentence, the court finds the prosecution did not violate batson versus kentucky. last sentence, on the merits, the person -- the petitioner
loses. >> as much as i would like it to be an adequate and state law independent ground -- >> 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? >> well -- >> i'd like counsel to -- >> sorry. >> yes. if figuanything,s th s thit is ruling. >> georgia supreme court has said georgia law allows claims to be revisited on habeas when new facts have developed since the time of the direct appeal because a claim that's based on facts that did not actually exist at the time of the direct
appeal, as in this case, is essentially a different claim. >> yes, your honor. >> may be right or wrong as a matter. but that's the law of georgia. >> that is the law. >> thank you, counsel. mr. bright, you have two minutes remaining. >> thank you. very quickly let me first say with regard to what justice alito quoted that it's just come to our attention since the case that ms. garrett's cousin was arrested that was on mayor 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 reason for striking ms. garrett, there's no mention of her cousin whatsoever in there. that's the time when she should have been mentioned, after the strikes were made. yet there's no mention of that at all. and then six months later there's a motion for new trial
and now the prosecution is adding new reasons that it didn't give at the batson hearing. it's saying she was a social worker. she wasn't a social worker. it's saying her cousin was arrested. the they didn't know that at the time they struck the jury. they say she's low income. but you can't add reasons on into perpetuity. the reasons are the reasons articulated in millerel. the prosecution has to stand or fall on the reasons. with regard to the questions i just want to make one quick point on that because there's not much time. with regard to ms. garrett and martha duncan who were both teacher's aides, who were at schools in the same neighborhood. no questions, what kind of children do you have, ms. duncan? ms. duncan, if you look at -- they also said familiarity with the neighborhood. ms. garrett lives like 18 or 20
miles away. ms. duncan, her school was 250 yards away and she lives a half mile from the school. both of them answered that they weren't familiar with the area where the victim lived. 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 $180 of -- $180 restitution and he went off to the navy, served his country honorably, got an honorable discharge and came back. >> thank you, counsel. case is submitted. at 7:00 p.m. tonight live on
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