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 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

batson hearing.body 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 th

be a batson hearing. everybody knew what was going to happen, that all the blacks would be struck and they have a hearing after that happened but the defense had basically put their motion in writing and relied on that throughout the jurisdiction. >> i wassurprised that we didn't hear about this preparation for batson hearing until the hades . >> the defense didn't move for the prosecution notes and the prosecution opposed that. there were very strict in not giving up their notes. then when the prosecutor testified on the motion for a new trial, they did something i've never seen a lawyer do. he cut a bargain with the judge and the lawyers saying i will testify but only if i don't have to show them my notes. basically rules through evidence argued testifying on notes, the others sites in the notes but here these notes were guarded until 2006 when we obtained them through a freedom of information or what they call open records act in georgia. >> the prosecutors, they said we never voted to authorize or lie

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 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 think we're going to see this giving new life to these so-called batson claims in the lower courtsbias in jury selection. >> the dissent was from justice thomas. can you expand on what he had to say in the dissent. >> justice thomas offered to different arguments in his dissent. the first was a technical one, that the court shouldn't have even taken this case because of the weird way it got to the supreme court from the georgia state courts. but substantively justice thomas was basically saying that there was enough justification unrelated to race in the state's explanation and that the supreme court owes deference to the georgia state courts and there wasn't quite enough evidence for the court to overturn the state court's determination. i think that's really easily rebutted by the chief justice's majority opinion, but an interesting statement from the one black justice on the current supreme court. >> okay. thank you so much for breaking this down for us. our legal analysts and reporters, jeffrey, ariane, and steve. we do appreciate it. and we'll be right back with more after thi