WASHINGTON (AP) — The Supreme Court will consider whether prosecutors improperly singled out potential black jurors in notes and then excluded them all from the death penalty trial of a black Georgia man accused of murder.

The justices agreed Tuesday to hear an appeal from Timothy Foster, who was sentenced to death in 1987 after being convicted of murdering a 79-year-old white woman in Rome, Georgia.

Lawyers for Foster are relying on prosecutors’ notes they discovered 19 years after the trial through an open records request.

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The notes show that the name of each potential black juror was highlighted on four different copies of the jury list and the word “black” was circled next to the race question on questionnaires for the black prospective jurors. Three of the prospective black jurors were identified in notes as “B#1,” ”B#2,” and “B#3.”

The notes also show that the prosecutors’ investigator ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors.” Prosecutors struck all four black jurors out of the 42 qualified by the trial court to serve on the jury.

A Georgia state court sided with prosecutors who said they challenged each of the possible black jurors for legitimate, race-neutral reasons and did not rely on the highlighted jury lists to make their ultimate decisions. The Georgia Supreme Court affirmed.

Just one year before Foster’s trial, the Supreme Court ruled in a landmark 1986 case that it is unconstitutional to dismiss a potential juror because of race.

Georgia officials argue that highlighting, circling or otherwise noting the race of a juror in notes does not show any intent to discriminate. The two prosecutors submitted an affidavit to the state court saying that neither one of them made the green highlight marks noting prospective black jurors.

The state also says the investigator’s comments were not those of the prosecutors and do not indicate the state’s intent.

Foster is being represented by the Southern Center for Human Rights, which provides free legal help to people facing the death penalty and challenges human rights violations in prisons and jails.

The Supreme Court will hear arguments in Foster v. Humphrey, 14-8349, when the court begins its new term this fall.

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