. >> according to prosecutors, timothy foster broke into the home of a 79-year-old while mo white woman. they say he broke her jaw, sexually assaulted her, coated her with talcum powder and choked her to death. >> he wadeath. >> he has been on georgia's death row. now the nation's highest court will decide whether prosecutors intentionally kept blacks off the jury. now foster's attorneys used an open record request in 2006 to eden out what prosecutors had on their jury selection notes. what was discovered is startling. the trial prosecutor wrote the letter "b" next to the names of prospective black jurors. the names were highlighted in green, and the list was made of people that the prosecutor did not want on the jury. all of those people were black. >> no one else, they did not highlight anyone but th the black jurors with the green highlighter. they did not mark "w" next the white jurors names. >> rejecting a certain number of potential jurors without stating a reason is legal. foster's case is unique. >> have you ever heard of a prosecutor in a jury selection in their notes marking a

. >> according to prosecutors, timothy foster broke into the home of a 79-year-old white woman. they say he broke her jaw, sexually assaulted her, coated her with tall come powder and then choked her to death. >> timothy is an african-american young man with select actual disabilities. unfortunately he was tried by an all-white jury for the woman of an elderly white woman. >> he was convicted of capital murder and has been on georgia's death row ever since. now the nation's highest court will decide if they intentionally kept blacks off the jury. now foster's attorney used an open record request. in you hav 2006 to find out what they have under jury selection notes. >> the trial prosecutor wrote the letter "b" next to the names of prospective black jurors. the list was made of people that they did not want on the jury. all of those people were black. >> they did not highlight anyone but the black jurists. they did not mark w next the white prospectssive jurists. >> rejecting a certain number of jurors is legal. foster's case is unique. >> have you everrered of a prosecutor in mar

timothy foster needs to have five justices to rule in his favor. robert ray, al jazeera, atlanta. >> we have thajender singh. peremptory challenges. before we talk about the case before the court explain exactly what that is. >> sure. when you have a jury trial, each side gets a certain number of challenges to the eligibility of jurors. and they're called peremptory because you don't have to provide any reason for them. so during the jury selection process each side can say we want to get rid of jurors number 1, 5 and 7, for example, and those challenges will be sort of accepted without any probing inquiry as to the reason. >> there is some inquiry into the reason for foster because there were marks negligence to the list. what's wrong with that? >> in a case of batson versus missouri, which is a well-settled case, you cannot use race as stacking the deck in the jury. time and again the example that's implicated in the foster case itself is when prosecutors tried to empanel an all white jury to convict a black defendant, prosecutors know that resul

how important is it that the lawyers of this accused man, timothy foster, were able to get ahold of thoseginal notes made by the prosecutor back in 1987? >> judy, i think how the justices view the notes is really crucial to mr. foster's chance of getting a new trial. if the justices see race discrimination in those notes, that is a violation of the 14th amendment and he will get a new trial. >> woodruff: so tell us about the arguments before the court today. >> sure. during the arguments, mr. foster's attorney, steve bright, airing guide the notes represented an arsenal of smoking guns designed clearly to separate the african-american perspective jurors and -- prospective jurors and treat them differently, just as kagan asked the attorney why this wasn't a clear violation of the 1986 court's decision tas court was likely to see and georgia's attorney said, well, the notes can be viewed in two ways. they could be viewed as the prosecutor's preparation to defend against the claim of racial discrimination. justice breyer said that was hard to believe because that reason, he said, was never g

. >> reporter: the case involves timothy foster who at age 18 was accused of robbing, sexually assaultingand murdering an elderly white woman. he was convicteded and sentenced to death by an all-white jury. that was in 1987 one year after the supreme court ruled that race cannot be used to disqualify a juror. foster's lawyers argued that prosecutors did just that, and they uncovered prosecutors notes highlighting the names of potential black jurors, circling the word black on juror questionnaires, and on a list of definite noes, all of the african-americans topped the list. steven bright told the court there is little doubt what was going on. >> we have an arsenal of smoking guns. we know what the prosecutor did here was identify the african-americans, rank them against each other, in case as their notes say we have to accept a black. >> reporter: a number of the justices seem to agree, alain that kagan, quote: stephen breyer said the prosecutor gave 40 different reasons to strike african-americans from the jury: but georgia's deputy general added quote: there's widespread agreement that

. >> reporter: the case involves timothy foster, who at age 18 was accused of robbing, sexually assaulting and murdering an elderly white woman. he was convicted, sentenced to death by an all-white jury. that was in 1987, a year after the supreme court ruled race cannot be used to disprfl is juror -- distrfl a juror. a decade ago notes were discovered, highlighting the names of certain black jurors. and on the list of definite nos, all the african-americans topped the list. torn attorney steven bright told the court there's little doubt what happened. >> in this case we have an arsenal of smoking gunses. the prosecutor identified the african-americans, divided them up, took them apart from the other people, ranked them against each other in case, as the notes say, we have to accept a black. >> reporter: a number of the justices agreed. saying: justice steven brier said the prosecutor gave 40 different reasons to strike african-americans from the jury: but george j's deputy attorney general say the notes don't show that adding: there's widespread agreement that racial discrimination and jur

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. >> reporter: timothy foster's jury was all white, but prosecutors denied racial bice when they struck every african american from the pool of perspective jurors. then ten years ago defense attorneys unearthed the prosecutor's notes. >> what we really found was an >> reporter: veteran death penalty attorney stephen bright is representing foster. >> the notes were shocking in factor was. potential african american jurors were highlighted, and in this list of possible jurors titled "definite no," the top five people were black. in the supreme court monday, georgia's deputy attorney general argued prosecutors had valid reasons for excluding african american jurors in the 1987 trial. it flagged black perspective jurors to make surur they were following new supreme court guidelines handed down in a landmark 1986 case to prevent racial discrimination in jury selection. but a majority of the justices appeared skeptical. liberal justice elena kagan said the case seemed as clear a violation as the court is ever going to see of the court's 1986 guidelines. conservative justice samuel also seemed

here's our chief legal correspondent, jan crawford. >> reporter: timothy foster's jury was all white, but prosecutors denied racial bias when they struck every african-american from the pool of pro spektivespective jurors. then ten years ago defense attorneys unearthed the prurth's notes. >> what we found was an arsenal of smoke guns. >> reporter: deputy attorney steven bright is representing foster. >> the notes were shocking in terms of just how explicit the racial factor was. >> reporter: the names of the potential african-american jurors were highlighted, and in this list of possible jurors titled "definite nos," the top five people were black. in the supreme court monday georgia's deputy attorney general argued prosecutors had valid reason for excluding african-american jurors in the 1987 trial, and it flagged the black prospective jurors to make sure they were following new supreme court guidelines handed down in a landmark 1986 case to prevent racial discrimination in jury selection. but a majority of the justices appeared skeptical. liberal justice elena kagan said the case se

the case involves timothy foster who at age 18 was accused of robbing, sexually assaulting, and murderingn elderly white woman. he was convicted and sentenced to death by an all-white jury. that was in 1987. fosters lawyers argued that nearly a decade ago they uncovered prosecutors notes highlights the names of potential jurors circumstances the names of potential black jurors. the attorney told the court there's little doubt what was going on. >> we have an arsenal of smoking guns. we know what the prosecutor did here was identify the african americans then divide them up, take them apart from the other people, rank them against each other in case as their notes say we have to accept a black. >> reporter: a member of the justices seemed to agree. quote: justice steven breyer said the prosecutor gave 40 different reasons to strike african americans from the jury, quote: but georgia's deputy attorney general argued the notes don't show that, adding, quote: through's wide-spread agreement that discrimination in jury selection is pervasive nationwide. and no matter what the justices decide i

the case involves timothy foster who at age 18 was accused of robbing, sexually assaulting, and murderingelderly white woman. he was sentenced to death by an all-white jury. that was in 1987, a year after the supreme court ruled that race cannot be used to disqualify a juror. nearly a decade ago defense attorneys uncovered prosecutors notes, circling the word black, and on the list of noes, all of the african-americans topped the list. >> we know what the prosecutor did here was identify the african americans, divide them up, take them abart fro the other people, rank them against each other in case as their n e notes say, we have to accept a black. >> reporter: a number of the justices seem to agree, quote: justice steven breyer said the prosecutor gave 40 different reasons to strike african americans from the jury, quote: but georgia's deputy attorney general argued the notes don't show that adding: there's widespread agreement that racial discrimination and jury selection is pervasive nationwide, and no matter what the justices decide in this case, it is unlikely to solve that problem.

. >> reporter: timothy foster's jury was all white, but prosecutors denied racial bias when they struck#every african-american from the pool of prospective jurors. then ten years agogoefense attorneys unearthed the prosecutor's notes. >> what we really found was an arsenal of smoking guns. penalty attorney steven bright >> the notes were shocking in terms of just how explicit the racial factor was. reporter: the names of the potential african-american jurors were highlighted, and in this list of possisie jurors titled "definite nos," the top five people were black. in the supreme court monday georgia's deputyttorney general argued prosecutors h h valid reasons for excluding african-american jurors in the 1987 trial, and it flagged the black prospective jurors to make sure they were following new supreme courguidelines handed down in a lalamark 1986 case to jury selection. but a majority of the justices appeared skeptical. liberal justice elena kagan said the case seemed as clear a violation as the court is ever going to see of the court's 1986 guidelines. conservative justice samuel ali

. >> reporter: timothy foster's jury was all white, but prosecutors denied racial bias when they struck every african-american from the pool of prospective jurors. then ten years ago defense attorneys unearthed the prosecutor's notes. >> what we really found was an arsenal of smoking guns. >> reporter: veteran death penalty attorney steven bright is representing foster. >> the notes were shocking in terms of just how explicit the racial factor was. >> reporter: the names of the potential african-american jurors were highlighted, and in this list of possible jurors titled "defifite nos," the top five people were black. in the supreme court monday georgia's deputy attorney general argued prosecutors had valid reasons for excluding african-american jurororin the 1987 trial, and it flagged the black prospective jurors to make sure they were following new supreme court guidelines handed down in a landmark 1986 case to jury seleltion. but a majority of the justices appeared skeptical. liberal justice elena kagan said the case seemed as clear a violation as the court is ever going to see of th

timothy foster was nearly 19 when he was convicted by an all-white jury and sentenced to death for murdering woman in one of the most violent ways. prosecut prosecutors have denied that race was a factor, but the jury selection notes are strange. they show that they singled out all of the potential black jurors and highlighted them in green marker, and then put a letter "b" and circled the ethnicity on the jury questionnaires, and then they ranked them. one note that says that upon picking of the jury, after listening to the all of the jurors, we had, if we had to pick a black juror, i would recommend ms. garrett be one of the jurors. with a big doubt still remaining. those are the notes. but do they say anything else? cnn legal analyst jeffrey toobin is here. and p you are getting notes like that in a challenge, it is possible that the supreme court justices could say it is a abuse, and we have to do away with the pre-emptory challenges to not have to say why you struck a jury. >> yes, and if the only reason that you threw people out if they were biased in some way, and peremptory challenge

timothy foster confessed to murdering a 79-year-old woman in rome, georgia, and was sentenced to death, but with selecting an all white jury for the trial, prosecutors allegedly singled out african-american jurors for removal, by highlighting them in green and marking them with the letter b. >> so it's clear that the blacks were singled out, they were treated apart from the white jurors and they were prioritized more striking. >> the reporter: the supreme court has ruled using race in jury selection is unconstitutional. foster's attorneys are now seeking a new trial. it could be several months before the justices rule. a new report out claims that disabled workers were overpaid $11 billion in the past nine years. the government accountability office reports that money went to people who earned too much to qualify for disability or those who had already returned to work. social security was able to recover some of that money but more than a billion dollars was lost and it was found to be the agency's fault. >> complete mismanagement. i mean, nobody is watch how the money is going out. n

. >> the reporter: it was 28 years ago that timothy foster confessed to and was convicted of murdering a 79-year-old woman in rome, georgia. he's been on georgia's death row ever since. foster's case landed here at the u.s. supreme court because of documents uncovered in 2006. the prosecutor's original notes show in selecting an all white jury, prosecutors allegedly singled out potential removal. you can see here, high heighting them in green and marking them with the letter b. >> in this case, we have an arsenal of smoking guns. we know what the prosecutor did here was identify the african-americans. >> the reporter: this page of the prosecutors notes shows what he calls his definite no. five of the six were five members of the african-american jury poolism e. the sixth person is someone who shade she cannot vote for the death penalty under any circumstances. >> the reporter: arguing for the state of georgia, deputy attorney general said while the notes clearly show prosecutors wanted to strike the five jurors, she told the justices, it's not clear that they wanted to do that because

. >> reporter: timothy tyrone foster does not deny killing a 79 year old woman during a burglary in her northern georgia home. but foster says he didn't get a fair trial because the prosecutor removed all the black candidates from the jury. the trial came just a year after the supreme court ruled jurors could not be excused because of their race. but lawyers could still dismiss them for cause. >> what we've seen since the question was decided is that prosecutors continue to strike african-americans or hispanics from the juries. and then just make up reasons for striking them. as long as they are not race reasons. >> reporter: steven, a veteran death penalty attorney is representing foster. he went through the prosecution teams notes and said he found blatant discrimination. >> what we really found was an arsenal of smoking guns. >> reporter: the name of each potential black juror was highlighted. the word black was circled next to the race question on questionnaires, and in this list of possible jurors tielt eled def nos, the top five people are black. during closing arguments, the pros

the issue is whether the prosecution illegally excluded blacks from the jury. 3 timothy foster's jury was all- whitebut prosecutors denied racial bias when they struck every african american from the pool of prospective jurors. vo then10 years agodefense attorneys unearthed the prosecutors' notes.vo (144958) what we really found was an arsenal of smoking gunsvo veteran death penalty attorney stephen bright is representing foster.vo(144820) the notes were shocking in terms of just how explicit the racial factor was vo(gfx in) the names of the potential african american jurors were highlightedvo and in this list of possible jurors titled "definite nos" the top five people are black.(gfx out)vo(gfx in) in the supreme court monday, georgia's deputy attorney general argued prosecutors had valid reasons for excluding african-american jurors in the black prospective jurors to make sure they were following new supreme court guidelines, case, to prevent racial selection.(gfx out)vo but a majority of the justices in)liberal justice elena kagan said the case seemed violation see" of the court's

. >> reporter: timothy tyrone foster does not deny killing a burglary in her northern georgia home. but foster says he didn't get a fair trial because the prosecutor removed all the black candidates from the jury. the trial came just a year after the supreme court ruled jurors could not be excused because of their race, but lawyers could still dismiss them for cause. >> what we've seen since the case was decided is that prosecutors continue to strike african-americans or hispanics from the juries and then just make up reasons for striking them. as long as they're not race reasons. >> reporter: steven bright, a veteran death penalty attorney, is representing foster. he went through the prosecution team's notes and says he found blatant discrimination. >> what we really found was an arsenal of smoking guns. >> reporter: the name of each potential black juror was highlighted. the word "black" circled next to the race question on questionnaires. and in this list of possible jurors titled "definite no," the top five people are black. during closing arguments the prosecutor urged the all-

. >> reporter: timothy tyrone foster does not deny killing a 79-year-old woman during a burglary in her northern georgia home. but foster says he didn't get a fair trial because the prosecutor removed all the black the trial came just a year after the supreme court ruled jurors could not be excused because of their race, but lawyers could still dismiss them for cause. >> what we've seen since the case was decided is that prosecutors continue to strike african-americans or hispanics from the juries and then just make up reasons for striking them. as long as they're not race reasons. >> reporter: steven bright, a veteran death penalty attorney, is representing foster. he went through the prosecution team's notes and says he found blatant discrimination. >> what we really found was an arsenal of smoking guns. >> reporter: the name of each potential black juror was highlighted. the word "black" circled next to the race question on questionnaires. and in this list of possible jurors titled "definite no," the top five people are black. during closing arguments the prosecutor urged the all-whi

timothy foster was convicted of killing a 79-year-old white woman i an all-white jury.rt will decide whether the jury selection process for the trial was unconstitutional because race was a factor in eliminating potential jurors. this is an hour. >> we will hear argument first this morning in foster versus chatman. court theplease the prosecutors in this case came to court on the morning of jury selection determined to strike all the black perspective jurors. >> maybe you could address the question we raised on friday with respect to which courts. to theiled this petition supreme court of georgia. it appears to us from looking at this over the weekend that r.j. reynolds tobacco company versus durham county, which the court decided in 1986, the court said unless there was positive assurance that the decision was not a ruling on the merits, the writ went to the supreme court. , the rulea court nonetheless is that a certificate of problem -- probable cause is to be granted if there is arguable merit to the case. >> does that affect the scope of our review? are we addressin

. >> the case involvement timothy foster, at age 18 accused of robbing, sexually assaulting and murdering woman. he was convicted and sentenced to death by an all white jury. that was in 19871 year after the supreme court rule race cannot be used to disqualify a juror. fosters lawyers argued prosecutors did just that and nearly a decade ago uncovered prosecutors notes highlighting the name of potential black jurors, circling the word black on questionnaires and on a list of definite nos, all african-americans topped the list. attorney steven bright said there is little doubt what is going on. >> we have an arsenal of smoking guns. we know what the prosecutor did was identify the african-americans, divide them up, take them apart from the other people, rank them against each other in case as their notes say, we have to accept a black. >> a number of the justice seem to agree: >> georgia's deputy attorney general beth burton argued the notes don't show that, adding: >> there's widespread agreement to racial discrimination in jury selection is pervasive nationwide and no matter what the just

. >> according to prosecutors, timothy foster broke into the home of a 79-year-old white woman namedne white. they say he broke her jaw, sexually assaulted her, coated her with talcum powder and choked her to death. >> timothy is an african-american man with disabilities. unfortunately he was tried by an all white jury for the murder of an elderly white woman. >> foster convicted of capital murder in 1987 has been on georgia's death row ever since. now the nation's highest court will decide whether prosecutors intentionally kept blacks off the jury. >> foster's attorneys used an open record request in 2006 to find out what prosecutors had on their jury selection notes. what they discovered was startling. >> the trial prosecutor wrote the letter b. next to prospective jurors. the names were also highlighted in green and a list made of people that the prosecutor did not want on the jury. all of those people were black. >> no one else, they did not highlight anyone but the black jurors, they did not white w. next to the white prospective jurors names. >> caylee vein teaches at emery law

month in foster versus chapman, a case dealing with the jury selection process for the trial of timothy foster. the court will decide if the selection was unconstitutional because race was a factor in eliminating potential jurors. in 1986, the court ruled 7-2 that prosecutors cannot dismiss jurors because of their race. foster was convicted of killing a 79-year-old white woman by an all white jury. >> we'll hear argument first this morning in case 148349, foster versus chapman. mr. bright. >> mr. chief justice and may it please the court. the prosecutors in this case came to court on the day of jury selection determined to strike all the black prospective jurors. >> maybe you could address first the question we raised on friday with respect to which court certiorari i should be directed to? >> yes, your honor, we filed this originally certiori to the supreme court of georgia. of course this court in sirius versus upton issued certiori in 2010 of the georgia supreme court in a similar situation. it appears to us from looking at this over the weekend that r.j. reynolds tobacco company versus dur

whether it was unconstitutional to exclude african-americans from jury selection in the trial of timothy foster who is now on death row. the court will rule on the case later this term. >> we'll hear argument first this morning in case 148349, foster v. chatman. mr. bright. >> mr. chief justice and may it please the court, the prosecutors in this case came to court on the morning of jury selection determined to strike all the black prospective jurors. >> 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 fire filed initially to the supreme court of georgia. and, of course, this source in sears v. upton had issued certiorari, this was in 2010, to the supreme court of georgia in a imsituation. similar situation. it appears to us from looking at this over the weekend that r.j. reynolds tobacco company v. durham county which the court cited in 1986, the court said that unless there was positive assurance that the decision was not a ruling on the merits, then the writ went to the state suprem