IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA :

:
v. : No. 1:08CR384-1
:
DEMARIO JAMES ATWATER :

MOTION TO BAR THE DEATH PENALTY BECAUSE OF DISCRIMINATION IN THE

DECISION TO CHARGE AND SEEK THE DEATH PENALTY AND/OR FOR
DISCOVERY OF INFORMATION PERTAINING TO THE GOVERNMENT’S DECSION
TO CHARGE THE DEFENDANT AND PURSUE THE CASE CAPITALLY

DEMARIO JAMES ATWATER, by and through his undersigned legal

counsel, Assistant Federal Public Defender Gregory Davis and

Attorney Kimberly C. Stevens, does hereby move this Honorable Court

for an order striking death as a possible penalty in this action

because the decision of the United States to charge Mr. Atwater and

seek the death penalty was arbitrary and race-based, in violation

of the Fifth and Eighth Amendments to the United States

Constitution. In support of this motion, Mr. Atwater shows the

following to the court:

INTRODUCTION

Mr. Atwater is charged in a superceding five count indictment

with “Kidnaping” resulting in death, in violation of Title 18,

United States code, Sections 1201(a)(1) and 2; in Count Two with

“Carjacking” resulting in death, in violation of title 18, United

States Code, Sections 2119(3) and 2; in Count Three with use of a

firearm during and in connection with a crime of violence,

resulting in the death of Eve Marie Carson, in violation of Title

18, United States Code, Sections 924(c)(1)(A)(iii),

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924(c)(1)(B)(I), 924(j)(1) and 2; in Count Four with possession of

a firearm by a convicted felon, in violation of Title 18, United

States Code, Sections 922(g)(1) and 2; and in Count Five with

Possession of a Shotgun having a barrel length shorter than 18

inches, in violation of Title 26, United States Code, Sections

5841, 5861(d) and 5871, and Title 18, United States Code, Section

2.

Prior to the indictment of Mr. Atwater by the United States,

he had been charged by the State of North Carolina with First

Degree Murder, First Degree Kidnaping, Robbery with a Dangerous

Weapon and various other charges. The State had given notice of

its intent to seek the death penalty and had been granted

permission by the state court.

The investigation of the crimes was primarily conducted by the

Chapel Hill, North Carolina Police Department, and the North

Carolina State Bureau of Investigation.

On or about July 7, 2008, a “Target Letter” was sent to

Mr. Atwater informing him that he was currently being investigated

regarding certain matters which occurred in Chapel Hill, North

Carolina, on March 5, 2008. Assistant Federal Public Defender,

Gregory Davis was appointed to represent Mr. Atwater at that point.

On July 31, 2008, a meeting was held between Anna Mills

Wagner, the United States Attorney, and Clifton T. Barrett,

Assistant United States Attorney, Chief of the Criminal Branch,

Louis C. Allen, the Federal Public Defender and Assistant Federal

Public Defender Gregory Davis concerning the government’s

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intentions to indict Mr. Atwater and to pursue the death penalty.

Attempts were made to persuade the government not to indict Mr.

Atwater and allow the case to remain in the state court. Inquiries

were made as to why the government was choosing to bring this case

to federal court but no explanation was given.

During the years 1998 to 2007, there were 1,098 murders

committed in the twenty four counties comprising the Middle

District of North Carolina in which a firearm was used, according

to statistics from the North Carolina State Bureau of

Investigation. Mr. Atwater’s case is only the second case charged

in the Middle District of North Carolina between 1998 and 2008 on

an indictment in which death was a possible penalty. The other

case charged involved a murder which occurred on a portion of a

military reservation which was located in the Middle District of

North Carolina. As will be demonstrated below, both statistics and

comparison with other similarly-situated defendants reveal that the

overriding reason that Mr. Atwater was indicted in federal court

was that he was a young, black male accused of killing a young,

white female. He further contends that the court should allow him

discovery from the government to support his claim.

ARGUMENTS

A. WHILE PROSECUTORS ARE GRANTED BROAD DISCRETION TO ENFORCE

CRIMINAL LAWS, PROSECUTORIAL DECISIONS MUST NOT VIOLATE EQUAL
PROTECTION PRINCIPLES.

The Attorney General and the United States Attorneys generally

retain broad discretion to enforce federal criminal laws; however,

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a prosecutor’s discretion is not unfettered, and decisions to

enforce criminal laws are subject to constitutional constraints.

See United States v. Armstrong, 517 U.S. 456, 464 (1996); Wayte v.

United States, 470 U.S. 598, 608 (1985). “One of these

constraints, imposed by the equal protection component of the Due

Process Clause of the Fifth Amendment, is that the decision whether

to prosecute may not be based on ‘an unjustifiable standard such as

race, religion, or other arbitrary classification.’” 1

Armstrong,

517 U.S. at 464 (internal citations omitted).

A selective prosecution claim is not a defense on the merits

to the criminal charge itself, but rather is an independent

assertion that the prosecutor has brought the charge for

unconstitutional reasons. Id. at 463. Prosecutorial decisions are

supported by a “presumption of regularity.” Id. at 464.

Accordingly, a defendant has the burden of dispelling the

presumption that a prosecutor has not violated equal protection

and, to prove the claim, must present clear evidence to the

contrary. Id. at 464-65.

A selective prosecution claim is judged according to ordinary

equal protection standards. Wayte, 470 U.S. at 609. Specifically,

in order to prove a selective prosecution claim on the merits,

The Fifth Amendment does not contain an equal protection clause,

but the Supreme Court has held that it nevertheless contains an
equal protection component. See Bolling v. Sharpe, 347 U.S. 497,
499 (1954). The Court has also indicated that their approach to
Fifth Amendment equal protection claims is “precisely the same as
to equal protection claims under the Fourteenth Amendment.” Wayte,
470 U.S. at 610 n.9 (quoting Weinberger v. Wiesenfeld, 420 U.S.
636, 638 n.2 (1975)).

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“[t]he claimant must demonstrate that the federal prosecutorial

policy ‘had a discriminatory effect and that it was motivated by a

discriminatory purpose.’” Armstrong, 517 U.S. at 464 (quoting

Wayte, 470 U.S. at 608).

“To establish a discriminatory effect in a race case, the

claimant must show that similarly situated individuals of a

different race were not prosecuted.” Id. The discriminatory

purpose element requires that the defendant establish “that the

decision to prosecute was ‘invidious or in bad faith.’” United

States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996). This element

“implies that the decisionmaker selected or reaffirmed a particular

a course of action at least in part ‘because of,’ not merely ‘in

spite of,’ its adverse effects upon an identifiable group.” Wayte,

470 U.S. at 610 (citing Pers. Admin. of Mass. v. Feeney, 442 U.S.

256, 279 (1979)).

B. THE EVIDENTIARY STANDARD FOR DEFENDANTS SEEKING DISCOVERY IN

SUPPORT OF A SELECTIVE PROSECUTION CLAIM IS LESS STRINGENT THAN
THAT REQUIRED TO PROVE THE CLAIM ON THE MERITS.

A defendant seeking to obtain discovery in support of a

selective prosecution claim must show “some evidence tending to

show the existence of the essential elements of the defense,

discriminatory effect and discriminatory intent.” Armstrong, 517

U.S. at 468; see also United States v. Bass, 536 U.S. 862, 863

(2002). Although this standard is undoubtedly rigorous, it is

“less stringent” than that required to prove a selective

prosecution claim on the merits. See United States v. James, 257

F.3d 1173, 1178 (10th Cir. 2001). Federal courts have emphasized

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that “the defendants need not establish a prima facie case of

selective prosecution to obtain discovery on these issues.” James,

257 F.3d at 1178 (emphasis added) (citing United States v. Jones,

159 F.3d 969, 978 (6th Cir. 1998); United States v. Bin Laden, 126

F. Supp. 2d 256, 262 & n.12 (S.D.N.Y. 2000); United States v.

Tuitt, 68 F. Supp. 2d 4, 14-15 (D. Mass. 1999)).

1. When seeking discovery, a defendant must provide “some

evidence” that similarly situated defendants of other races were
not prosecuted.

The Supreme Court has held that when seeking discovery on a

selective prosecution claim, the defendant must first “produce some

evidence that similarly situated defendants of other races could

have been prosecuted, but were not . . . .” Armstrong, 517 U.S. at

469. In Armstrong, the Court held that the evidence2 presented in

support of defendant’s selective prosecution claim was insufficient

to obtain discovery, as it “failed to identify individuals who were

not black and could have been prosecuted for the offenses for which

respondents were charged, but were not so prosecuted.” Id. at 470.

The Armstrong court also suggested that the defendant “could have
investigated whether similarly situated persons of other races were

prosecuted [in state court] and were known to federal law

enforcement officers, but were not prosecuted in federal court.”

Id.

In Armstrong, the defendant presented an affidavit alleging that

in every one of the twenty-four § 841 or § 846 cases closed by the
U.S. Attorney’s office in 1991, the defendant was black.
Armstrong, 517 U.S. at 459. The affidavit included a “study”
listing the twenty-four defendants, their race, whether they were
prosecuted for dealing cocaine as well as crack, and the status of
each case. Id.

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 In United States v. Bass, 536 U.S. 862 (2002) (per curiam),

the Supreme Court suggested that the similarly situated requirement

applies equally even in cases where the government seeks the death

penalty. In Bass, the Court of Appeals for the Sixth Circuit

initially granted the defendant discovery, finding that “[t]he

racial disparities identified by Bass in the death penalty charging

phase do not occur in any non-death-eligible federal offenses” and,

“[t]herefore, they suggest that a defendant’s race does play a role

during death penalty protocol.” United States v. Bass, 266 F.3d

532, 539 (6th Cir. 2001). The Supreme Court reversed, and in a per

curiam decision, stated that “raw statistics regarding overall

charges say nothing about charges brought against similarly

situated defendants.” Bass, 536 U.S. at 864 (emphasis in

original).

Bass and Armstrong make it clear that charging statistics

alone are insufficient evidence of discriminatory effect to obtain

discovery; rather, a defendant must identify similarly situated

individuals of a different race, or whose victims were of a

different race,3 who were not charged. Nevertheless, it remains

unclear to what extent a defendant seeking discovery must

demonstrate that other potential defendants are “similarly

situated.” In United States v. Olvis, 97 F.3d 793 (4th Cir. 1996),

the Fourth Circuit indicated that when determining whether

Defendant in this case alleges selective prosecution based on

both his own race and the race of the victim, Eve Marie Carson, as
well as her public position. As discussed infra note 11, a
defendant has standing to claim discrimination on the basis of the
victim’s race and/or gender.

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defendants are similarly situated, a court must examine all

relevant factors, not simply the relative culpability of the

potential defendants.4 Olvis, 97 F.3d at 744. Such factors

include:

the strength of the evidence against a particular

defendant, the defendant’s role in the crime, whether the
defendant is being prosecuted by state authorities, the
defendant’s candor and willingness to plead guilty, the
amount of resources required to convict a defendant, the
extent of prosecutorial resources, the potential impact
of a prosecution on related investigations and
prosecutions, and prosecutorial priorities for addressing
specific types of illegal conduct.
Id. Accordingly, the Olvis court held “that defendants are

similarly situated when their circumstances present no

distinguishable legitimate prosecutorial decisions with respect to

them.” Id.; see also United States v. Khan, 461 F.3d 477, 498 (4th

Cir. 2006) (denying defendants’ discovery request and finding that

defendants, who were Muslims and alleged members of a terrorist

group that supported the Taliban and Al-Qaeda, were not similarly

situated to other alleged terrorist groups because defendants

“present the most direct threat to the United States and its
interests”).

While Olvis accurately identifies the factors a court could

consider when determining whether a defendant has proven5 the
4

The district court in Olvis, in a decision prior to Armstrong,

found that the defendants had made a nonfrivolous showing of
discriminatory effect by demonstrating that Caucasian
coconspirators were not indicted. The district court found that
the individuals were “similarly situated in that they were all
involved in the conspiracy.” United States v. Olvis, 913 F. Supp.
451,
5
453 (E.D. Va. 1995).
Even though the court of appeals in Olvis indicates that they are
reviewing the district court’s discovery order, the opinion reads

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discriminatory effect element, it is arguably difficult – if not

impossible – for a defendant to present evidence regarding all of

those factors until after discovery has taken place. In Armstrong,

the Supreme Court emphasized that the similarly situated standard,

while demanding, “does not make a selective-prosecution claim

impossible to prove.” Armstrong, 517 U.S. at 466. Accordingly,

since the burden on a defendant seeking discovery is less rigorous

than the burden for proving the claim on the merits, it should not

be impossible for a defendant to obtain discovery in support of a

selective prosecution claim.

Arguably, the Sixth Circuit in United States v. Jones, 159

F.3d 969 (6th Cir. 1998) (hereinafter “Jones I”), more accurately

applied Armstrong when it granted discovery on the defendant’s

selective prosecution claim. In Jones I, the defendant presented

evidence that law enforcement referred him and his codefendant6 for

federal prosecution for crack cocaine violations, but failed to

refer eight non-African Americans who were also arrested and

as if the court is reviewing the selective prosecution claim on the

merits. See, e.g., Olvis, 97 F.3d at 744 (“The district court in
this case concluded that Olvis and Palmer had satisfied the
discriminatory effect prong of their selective-prosecution claim
because the unindicted white conspirators were similarly situated
to them.”); id. (“Applying our fact-focused test to the
circumstances of this case, we conclude that the defendants did not
establish the first element of their selective-prosecution claim.”)
However, Armstrong makes it clear that a defendant need not prove
his case on the merits when seeking discovery, but must simply
present “some evidence” tending to show the elements of his claim.
Armstrong,
6
517 U.S. at 468.
The court of appeals noted that the fact that the codefendant
Billings was white “does not change our analysis. It would have
been beyond foolish for law enforcement to [not indict the white
codefendant federally], considering that Jones’s and Billings’s
cases involved the same events.” Jones, 159 F.3d at 978.

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prosecuted for crack cocaine. Jones I, 159 F.3d at 978. The Court

of Appeals held that these examples constituted “‘some evidence’

tending to show the existence of discriminatory effect, warranting

discovery on his selective prosecution claim.” Id. Accordingly,

finding that the district court had abused its discretion7 in

denying the defendant’s request for discovery, the Sixth Circuit

remanded the case to the district court to compel discovery. Id.

Although Jones’s claim for selective prosecution was

eventually dismissed on the merits and dismissal was affirmed by

the court of appeals, see United States v. Jones, 399 F.3d 640 (6th

Cir. 2005) (hereinafter “Jones II”), Jones I and II show that a

defendant need not demonstrate precise similarity to other

defendants when simply seeking discovery. Specifically, in Jones

II, it was not until after discovery, when the district court was

evaluating the selective prosecution claim on the merits, that it

“identified and compared the appropriate factors for comparison [of

potential defendants] — propensity for violence, involvement of a

firearm, and amount of cocaine base.” Jones II, 399 F.3d at 646

It is important to note that several courts of appeal review a

district court’s decision to grant discovery under an abuse of
discretion standard, see, e.g. United States v. Bass, 266 F.3d 532,
539 (6th Cir. 2001); United States v. Al Hedaithy, 392 F.3d 580,
605 (3d Cir. 2004); United States v. Arenas-Ortiz, 339 F.3d 1066,
1069 (9th Cir. 2003).
However, the Fourth Circuit makes it clear that “when we
review a district court’s discovery order in support a selective
prosecution claim, we are determining the legal adequacy of the
evidence. We review the legal adequacy of evidence de novo.”
Olvis, 97 F.3d at 744; United States v. Khan, 461 F.3d 477, 498
(4th Cir. 2006); see also United States v. James, 257 F.3d 1173,
1177-78 (10th Cir. 2001) (finding Olvis persuasive and reviewing
the district court's denial of the defendants' selective
prosecution discovery motions de novo).

10

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(citing United States v. Daniels,8 142 F. Supp. 2d 140, 144 (D.

Mass. 2001)). After comparing these factors, the district court

then decided that defendant Jones failed to prove discriminatory

effect, and the Sixth Circuit affirmed. Id. Thus, although the

Jones’s claim of selective prosecution was dismissed on the merits,

the case demonstrates that for purposes of obtaining discovery, a

defendant can identify potential defendants of a different race who

could have been prosecuted federally under the same statute, but

were not so prosecuted.

The district court’s opinion in Daniels further highlights the

difference between the burden on a defendant merely seeking
discovery and the burden in proving discriminatory effect on the
merits. In Daniels, the defendants filed a motion to dismiss the
indictment after obtaining limited discovery on his claim of
selective prosecution. See Daniels, 142 F. Supp. 2d at 143. While
denying defendants’ motion to dismiss the indictment, the district
court emphasized that the standard of proof required to sustain a
motion to dismiss is “clear evidence” of an equal protection
violation, while Armstrong simply requires “some evidence” of a
violation to obtain discovery. Id. at 143-44. More importantly,
the Daniels court noted that

[c]lear evidence that similarly situated defendants of

other races were not prosecuted would include some
analysis of how the defendants in this case are similarly
situated to persons not prosecuted. To be sure, the
inquiry does not require defendants to be “identically
situated,” but there must be clear evidence of
similarity. Such evidence would include comparison, for
example, of the amounts of crack involved in cases with
white defendants, their criminal histories, propensity
for violence, and any other factors that might justify
the higher sentences if they were prosecuted in federal
court.

Id. at 144 (emphasis added).

Like Jones II, Daniels emphasizes that a highly detailed,
fact-specific “similarly situated” inquiry need not occur until
after discovery has taken place when the claim is being considered
on the merits and, even then, the defendant need not prove that the
potential defendants are identically situated.

11

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 2. When seeking discovery, a defendant can demonstrate
discriminatory intent by presenting evidence of disproportionate
impact, as well as other circumstantial evidence.
Just as is required in proving any equal protection violation,

a defendant raising a selective prosecution claim must show that

the decision to prosecute was motivated by a discriminatory

purpose. See Olvis, 97 F.3d at 743. In evaluating alleged equal

protection violations, the Supreme Court has recognized that

discriminatory intent may be proved by both direct and

circumstantial evidence. See, e.g., Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (“Determining whether

invidious discriminatory purpose was a motivating factor demands a

sensitive inquiry into such circumstantial and direct evidence of

intent as may be available.”).

As direct evidence of discriminatory intent “seldom exists,”

“inferences can be drawn from valid relevant statistical evidence

of disparate impact or other circumstantial evidence.” United

States v. Avery, 137 F.3d 343, 355 (6th Cir. 1997); see also Batson

v. Kentucky, 476 U.S. 79, 93 (1986) (“Circumstantial evidence of

invidious intent may include proof of disproportionate impact.”)

In general, an official action will not be held unconstitutional

solely because it results in a racially disproportionate impact.

Arlington Heights, 428 U.S. at 264-65; Washington v. Davis, 426

U.S. 229, 239 (1976). However, “[t]he impact of the official

action whether it ‘bears more heavily on one race or another’ may

provide an important starting point.” Arlington Heights, 428 U.S.

at 266 (internal citations omitted) (quoting Davis, 426 U.S. at

12

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242).

However, there have been situations where the impact of a

government action is so clearly discriminatory that no other

conclusion can be reached but that the action was taken for a

discriminatory purpose. Yick Wo v. Hopkins, 118 U.S. 356 (1886),

is an example of such a situation in the selective prosecution

context. In Yick Wo, a San Francisco city ordinance prohibited

laundry businesses from operating in wooden buildings unless the a

waiver was obtained. The plaintiff in Yick Wo presented statistics

that the city had denied all 200 permit applications submitted by

Chinese owners, but “80 others, not Chinese subjects, are permitted

to carry on the same business under similar conditions.” Yick Wo,

118 U.S. at 374. The Court held that

[t]he facts shown establish an administration directed so

exclusively against a particular class of persons as to
warrant and require the conclusion that, whatever may
have been the intent of the ordinance as adopted, they
are applied by the public authorities charged with their
administration, and thus representing the state itself,
with a mind so unequal and oppressive as to amount to a
practical denial by the state of that equal protection of
the laws which is secured [by the Fourteenth Amendment to
the Constitution].
Id. at 373. See also Gomillion v. Lightfoot, 364 U.S. 339, 341

(1960) (where all but a few of the 400 blacks of Tuskegee, Alabama

were placed outside of the city after redrawing of city boundaries,

but where no whites were displaced, the Court held that for all

practical purposes the legislature was solely concerned with

segregating white and black voters).

To be sure, “such cases are rare,” and “[a]bsent a pattern as

stark as that in Gomillion or Yick Wo, impact alone is not

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determinative and the Court must look to other evidence.”

Arlington Heights, 429 U.S. at 266 (emphasis added). Nevertheless,

the very use of the words “other evidence” by the Court in

Arlington Heights suggests that statistical evidence of disparate

impact is “some evidence” of a discriminatory intent – and “some

evidence” is all that a defendant seeking discovery in support of

a selective prosecution claim must produce. See, e.g., United

States v. Heatley, No. S11-96CR514, 199 WL 61816, at *16 (S.D.N.Y.

Jan. 29, 1999) (in determining whether defendant is entitled to

discovery on selective prosecution claim, then-District Judge

Sotomayor noted that intent may be established by “circumstantial

evidence of disproportionate impact”). See also Arlington Heights,

429 U.S. at 266 (disparate impact of the government action provides

“an important starting point”); Davis, 426 U.S. at 242

(“Necessarily, an invidious discriminatory purpose may often be

inferred from the totality of the relevant facts, including the

fact, if it is true, that the law bears more heavily on one race or

another.”); United States v. Thorpe, 471 F.3d 652, 661 (6th Cir.
2006) (“the government exaggerates by implying that statistical

evidence of discriminatory effect, without more, can never raise an

inference of discriminatory intent.”); United States v. Alameh, 341

F.3d 167, 173 (2d Cir. 2003) (“Such [discriminatory] purpose may,

however, be demonstrated through circumstantial or statistical

evidence.”).

Defendant is aware that in McCleskey v. Kemp, 481 U.S. 279

(1987), the Supreme Court concluded that discriminatory purpose

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cannot be proven by system-wide statistical findings that suggest

disparate impact. Nevertheless, Defendant asserts that McCleskey

does not preclude Defendant from offering relevant, individualized

statistics of disparate impact for the purpose of this discovery

motion. It is Defendant’s contention that McCleskey is factually

and procedurally distinguishable from the present case, and

therefore not entirely helpful in resolving Defendant’s pretrial

motion for discovery.

In McCleskey, the defendant was convicted in Superior Court of

Fulton County, Georgia of murder and two counts of armed robbery.

McCleskey, 481 U.S. at 283. The court followed the jury’s

recommendation to impose the death penalty and sentenced McCleskey

to death. Id. at 285. After various appeals within the state

system, McCleskey filed a petition for a writ of habeas corpus in

federal court, claiming that the Georgia capital sentencing process

is administered in a racially discriminatory manner in violation of

the Eighth and Fourteenth Amendments to the Constitution. Id. at

286. In support of his petition, the defendant cited a study

(“the Baldus study”) “that purports to show a disparity in the

imposition of the death sentence in Georgia based on the race of

the murder victim and, to a lesser extent, the race of the

defendant.” Id.
In affirming denial of the petition, the Supreme Court

rejected McCleskey’s argument “that the Baldus study compels an

inference that his sentence rests on purposeful discrimination.”

Id. at 293. While the Court acknowledged that it has accepted

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statistics as proof of intent to discriminate in other contexts,9

“the nature of the capital sentencing decision, and the

relationship of the statistics to that decision, are fundamentally

different” from those cases. Id. at 293-94. Specifically,

each particular decision to impose the death penalty is

made by a petit jury selected from a properly constituted
venire. Each jury is unique in its composition, and the
Constitution requires that its decision rest on
consideration of innumerable factors that vary according
to the characteristics of the individual defendant and
the facts of the particular capital offense. Thus, the
application of an inference drawn from the general
statistics to a specific decision in a trial and
sentencing simply is not comparable to the application of
an inference drawn from general statistics to a specific
venire-selection or Title VII case. In those cases, the
statistics relate to fewer entities, and fewer variables
are relevant to the challenged decisions.

Id. at 294-95.

Unlike McCleskey, Defendant’s present discovery motion is not

a habeas petition made “years after” the defendant has been

prosecuted, convicted of murder, and sentenced to the death

penalty. See id. at 296. Nor does Defendant in this case seek to

question the decisions of countless jurors or state prosecutors, as

was the case in McCleskey. Rather, Defendant in this case seeks

pretrial discovery necessary to challenge the decision of a single

entity — the United States Attorney for the Middle District of

North Carolina — to prosecute Defendant in federal court. See also

Belmontes v. Brown, 414 F.3d 1094, 1127 (9th Cir. 2005) (“We

It is significant that the McCleskey Court specifically cites to

Gomillion and Yick Wo, discussed supra, but does not purport to
depart from the principles established in those cases. See
McCleskey, 481 U.S. at 293 n.12 (explaining that Gomillion and Yick
Wo “are examples of those rare cases in which a statistical pattern
of discriminatory impact demonstrated a constitutional violation”).

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conclude that statistics relating to the charging entity, such as

those presented by Belemontes, are materially more probative of

discrimination in capital charging than those considered by the

Supreme Court in McCleskey” and therefore may be used to support a

prima facie showing of selective prosecution), rev’d on other

grounds sub nom Ayers v. Belmontes, 549 U.S. 7 (2006).

Perhaps most importantly, McCleskey addressed the standard of

proof necessary for a defendant to prove discriminatory intent. As

emphasized numerous times in this memorandum, a defendant need not

prove his case at this stage, but need only present “some evidence”

of discriminatory intent. Relevant, individualized statistical

evidence of disparate impact is “some evidence” tending to show

discriminatory intent and is therefore sufficient to obtain limited

discovery on a selective prosecution claim. Such evidence can be

considered by this court without violating McCleskey.10

Finally, statistical evidence of a disparate impact is not the

only circumstantial evidence that a court can consider in

determining whether defendant has shown “some evidence” of

discriminatory intent. In Arlington Heights, the Supreme Court
suggested other sources of circumstantial evidence that may be

relevant when proving discriminatory intent. For example, “[t]he

specific sequence of events leading up to the challenged decisions

10

It is also significant that on August 11, 2009, North Carolina

Governor Beverly Purdue signed the Racial Justice Act into law,
which specifically allows pretrial defendants to present
statistical evidence that death sentences were sought or imposed
significantly more frequently upon persons of one race than upon
persons of another race. See N.C. Gen. Stat. § 15A-2011(b).

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may also shed some light on the decisionmaker’s purposes.”

Arlington Heights, 429 U.S. at 267. Also,

[d]epartures from the normal procedure sequence also

might afford evidence that improper purposes are playing
a role. Substantive departures may too be relevant,
particularly if the factors usually considered important
by the decisionmaker strongly favor a decision contrary
to the one reached.

Id. (internal citations omitted). This court should properly

consider Defendant’s circumstantial evidence regarding all of these

factors when determining whether Defendant has presented “some

evidence” of discriminatory intent.

C. DEFENDANT HAS DEMONSTRATED SOME EVIDENCE OF DISCRIMINATORY

EFFECT AND DISCRIMINATORY INTENT, AND THEREFORE DISCOVERY IN
SUPPORT OF HIS SELECTIVE PROSECUTION CLAIM SHOULD BE GRANTED.

Defendant contends that he has met the rigorous standard

required to prove his claim of selective prosecution at this stage

of the proceedings, but “a defendant need not prove his case in

order to justify discovery on an issue.” United States v. Jones,

159 F.3d 969, 978 (6th Cir. 1998). As demonstrated below,

Defendant can demonstrate “some evidence” tending to show both

discriminatory effect and discriminatory intent, and such evidence

is sufficient for this court to order discovery on his selective

prosecution claim.

1. Defendant’s evidence of discriminatory effect

In this case, Defendant bases his claim of selective

prosecution on his own race and gender in combination with the race

and gender of the victim, Eve Marie Carson, who was a white female,

as well as her public position of student body president of the

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University of North Carolina at Chapel Hill.11 Accordingly,

Defendant has provided examples below of similarly situated

defendants who were not prosecuted in federal court as evidence of

discriminatory effect in this case. These cases involve some

similar facts as are alleged in Defendant’s case, and the alleged

crimes would violate some of the same federal laws that Mr. Atwater

is accused of violating, and often have similar aggravating

factors. However, in each of the following examples, the race or

gender of the victim is different from Ms. Carson, or the race and
gender of the defendant is different from Mr. Atwater, or both.

a. Stephen Oates and Lawrence Lovette (Exhibit 1). The most

striking examples of similarly situated defendants who have not

been prosecuted federally are Stephen Oates and Lawrence Lovette.

In January 2008, Mr. Oates was charged with murder and robbery with

a dangerous weapon in connection with the shooting death of Duke

University student Abhijit Mahato, 29. In May 2008, Mr. Lovette —

who Mr. Atwater’s codefendant in the state prosecution related to

11

McCleskey makes it clear that a defendant has standing to claim

discrimination on the basis of the victim’s race and/or gender.
“It would violate the Equal Protection Clause for a State to base
enforcement of its criminal laws on ‘an unjustifiable standard such
as race, religion, or other arbitrary classification.’” McCleskey,
481 U.S. at 292 (citations omitted); see also Belmontes v. Brown,
414 F.3d 1094, 1126 (9th Cir. 2005) (concluding that Armstrong did
not overrule the relevant portion of McCleskey and that
accordingly, “a defendant may bring a selective prosecution claim
based solely on the race of his victim, and that to establish a
discriminatory effect in a race-of-the-victim case, he must show
that similarly situated individuals whose victims were of a
different race were not prosecuted.”), rev’d on other grounds sub
nom Ayers v. Belmontes, 549 U.S. 7 (2006).

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the Carson murder12 — was also charged and indicted on charges of

murder and robbery with a dangerous weapon in Mahato’s murder.

According to an arrest warrant, Lovette allegedly stole a cellular

phone, wallet and an iPod – of a combined value of about $300.00 –

before Mahato was shot to death inside his apartment.

Mahato was a graduate student at Duke’s Pratt School of

Engineering who was originally from Tatangar, India. At the time

of Mahato’s murder, Oates was nineteen years old and therefore

eligible to receive the death penalty, while and Lovette was

seventeen years old and ineligible for the death penalty.

Lovette and Oates are similarly situated to Defendant

because of the parallels between Mr. Mahato’s and Ms. Carson’s

murders. In both cases, the victim was randomly chosen as the

target for a robbery, and then was killed with a firearm. In both

cases, the victim’s ATM card was used either before or after the

victim’s murder. The most obvious difference between the two cases

is the race and gender of the victims: Ms. Carson was a white

12

Mr. Lovette has not been indicted federally in Ms. Carson’s case.
The government may contend that this fact demonstrates a lack of
discriminatory effect, since Mr. Lovette is also an African
American male accused of killing a white female. However,
Defendant contends that the fact that Mr. Lovette was not indicted
federally actually strengthens his showing of discrimination.
Specifically, Mr. Lovette was only seventeen years old at the time
of Ms. Carson’s murder, and therefore ineligible for the death
penalty, while Defendant was twenty one at the time of the
incident. Apart from their death penalty eligibility, there is no
other distinguishable, legitimate reason why the government would
not prosecute Mr. Lovette federally for Ms. Carson’s murder,
considering that Mr. Lovette and Defendant were allegedly involved
in the exact same crime. See Jones, 159 F.3d at 978 (“It would
have been beyond foolish for law enforcement to [not indict the
white codefendant federally], considering that Jones’s and [the
codefendant’s] cases involved the same events.”).

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female, while Mr. Mahato was an Indian male. Accordingly, Lovette

and Oates are similarly situated defendants who were not prosecuted

in federal court simply because of the race, gender and lack of

celebrity of the victim they were alleged to have killed.

b. Caliph Cherry (Exhibit 2). On September 27, 2006,

Caliph Cherry came to the door of Jamie Bannerman’s Winston-Salem

apartment and asked to use the phone. When Bannerman’s girlfriend

let him in, Cherry shot Jamie Bannerman twice in the back of the

neck, took money, cell phones, and Bannerman’s car keys from his
apartment, and then drove Bannerman’s car to Columbus County. Both

the defendant and the victim were Black. According to Bannerman’s

girlfriend, Cherry also held her at gunpoint and used duct tape to

tie her up after he killed the victim. There is no evidence that

the two men knew each other; rather, prosecutors believe that

Cherry killed the victim for his car, which was parked outside of

the apartment.

Forsyth County prosecutors pursued the death penalty in

the case, but later offered Cherry a plea deal at the urging of the

Bannerman family. In July 2009, Cherry pled guilty to second-

degree murder, first-degree kidnapping, robbery with a dangerous

weapon, and possession of a firearm by a felon. Despite the fact

that he is similarly situated to Defendant in this case, Cherry has

not been indicted in federal court for any crimes. The major

distinction appears to be that his victim was a Black male.

c. Jeremy Dushane Murrell (Exhibit 3). On February 22,

2006, Jeremy Dushane Murrell, a black male, was convicted in

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Forsyth County of first degree murder, first degree kidnapping, and

robbery with a dangerous weapon, and was sentenced to death in

state court. The evidence at Murrell’s trial tended to show the

following facts:

Late in the evening on 21 August 2003, defendant

approached Lawrence Matthew Harding, who was seated in
his own vehicle in a parking lot adjacent to his place of
employment. Defendant fatally shot Harding twice in the
head and neck with a firearm and, after transporting him
to Durham in the vehicle, placed his body inside the
trunk and took from him a watch and approximately
$130.00. Three days later, defendant abandoned the
vehicle - along with Harding's body - near a bus station
in Richmond, Virginia. The victim was not discovered
until 29 August 2003, more than one week after the
murder.

State v. Murrell, 665 S.E.2d 61, 66-67 (N.C. Sup. Ct. 2008).

The victim in this case was a white male. Murrell has not been

prosecuted in federal court for any crime.

d. Rashaun Thomas McNeil and Michael Vernard Thompson

(Exhibit 4). In September 2007, seventy-year-old Betty Thomas, an

African American female, was shot when the Greensboro hat shop she

operated was robbed. In connection with the robbery and shooting,

police arrested Rashaun Thomas McNeil and Michael Vernard Thompson

on charges of first-degree murder and robbery with a dangerous

weapon. Thompson and McNeil, both African American males, were

also charged with attempted robbery and assault with a deadly

weapon in connection with an attempted robbery at a convenience

store earlier the same day.

In state court, Thompson pled guilty to first degree

murder and robbery and was sentenced to life in prison. McNeil

pled guilty to accessory after the fact to murder and was sentenced

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to three years and six months in prison. Neither man has been

indicted in federal district court for any crime, despite the fact

that a firearm was used in connection with a crime of violence.

e. Jasmond Jevon Rogers (Exhibit 5). Jasmond Jevon

Rogers faces several charges in Durham and Burlington counties

involving an alleged 2007 crime spree. Rogers faces the death

penalty in the fatal drive-by shooting of fifteen-year-old Quincy

Bowens, who in June 2007 was visiting his aunt in Durham when

Rogers allegedly shot him. According to family reports, the victim

pushed his two-year-old niece into the apartment when the shooting

began, but was unable to escape the gunfire himself.

In seeking the death penalty for the drive-by shooting,

Durham County prosecutors cited a course of criminal conduct by

Rogers as an aggravating factor. Specifically, in July 2007,

Rogers allegedly hitched a ride at a Burlington gas station and

then pulled a gun on the passengers, shot one passenger in the leg,

and then shot the male driver after forcing him to drive to Durham.

Rogers faces charges of assault, kidnapping, and possession of a

firearm by a felon in Alamance County. Rogers also faces further

assault charges in Durham County for allegedly shooting at police

officers as they tried to arrest him at the Carolina Duke Inn in

Durham. Rogers has not been indicted for any of these alleged

crimes in United States District Court for the Middle District of

North Carolina.

f. Isaam Mattay Chaplin (Exhibit 6). Isaam Chaplin, a

black male, has been charged in Guilford County with the first-

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degree murder of Juan Estaban Salado, a Hispanic male. Chaplin is

accused of shooting Salado, a guard with Brinks Security, on

December 15, 2008 outside of the Old Navy story in Greensboro’s

Friendly Center shopping area. Chaplin allegedly entered the store

wearing a wig and nurse’s scrubs and began browsing. The Brink’s

Security armored truck soon pulled up to the store, and Salado went

inside to pick up the store’s deposit. Chaplin then allegedly

approached Salado in front of the store, shot him twice, took the

bags of money he carried, and then fled on foot to a waiting car.

Salado later died at Moses Cone Hospital.

In February 2009, the Guilford County District Attorney

announced that he would seek the death penalty against Chaplin.

Chaplin has not been indicted on any charges in the Middle District

of North Carolina.
g. Keith Lauchon Jackson and Ronnie Lee Covington

(Exhibit 7). Keith Lauchon Jackson and Ronnie Lee Covington have

been charged in state court in connection with the October 31, 2007

fatal shooting of Josh Sweitzer, a twenty-one year-old convenience

store clerk. Jackson and Covington allegedly shot Sweitzer, a

white male, during an armed robbery of the Lucky Mart store where

Sweitzer worked. Jackson and Covington have also been also charged

in a string of robberies along the Interstate 85 corridor that

included businesses in Lexington, Thomasville, and High Point.

Guilford County prosecutors are seeking the death penalty against

the two men for Sweitzer’s murder.

Jackson and Covington were both indicted in federal court

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for several robberies that occurred between December 16, 2007 and

January 4, 2008 and other firearms offenses, but interestingly,

were not indicted in federal court for the October 31, 2007 robbery
and Sweitzer’s death. See United States v. Jackson et al.,

1:08CR272 (M.D.N.C). In their federal cases, Jackson and Covington

both pled guilty to three of the twenty-one counts against them and

were sentenced in 2009. See id.

h. On April 24, 2008, Anne Magness, 77, a white female

and a Meals On Wheels volunteer and Bob Denning, 64, a white male,
were murdered in Winston-Salem. The suspects, Timothy Hartford,

Jr., 38, a white male and Ashley Kristine Smith, 26, a white female

fled and were apprehended in Virginia after a five hour stand off

with police. Both defendants were white. A firearm was used in

the murders. Hartford and Smith have been indicted in state court

for the murders but no federal charges have been filed in spite of

the use of a firearm in connection with a murder. (Exhibit 8).

i. Similarly situated defendants from the Eastern District

of North Carolina. Three killings that occurred in the Eastern

District of North Carolina provide further evidence of

discriminatory effect. Even though these cases include remarkably

similar facts as those alleged in Defendant’s case, none of the

following cases have been prosecuted in the Eastern District of

North Carolina.

! Kyle Jaron Bunch – Pasquotank County (Exhibit 9). In

2006, Kyle Bunch was sentenced to life in prison for the first-

degree murder of twenty-one year-old Brian Jarrod Pender, a student

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at Elizabeth City State University. Both the victim and the

defendant in this case are African American males. The North

Carolina Court of Appeals recited the facts of the case as follows:

On 1 March 2004, three African-American men dressed

in black and wearing black fabric masks over their faces
entered a home occupied by James Arthur “Art” Bowen
(“Bowen”), Richard Preston Hewlin, Jr., and Brian Jarrod
Pender (“Pender”). One of the intruders had a handgun and
another had a shotgun. The intruders ordered the men down
and to surrender any cell phones or cash. One intruder
repeatedly asked, “Where is it at?” Bowen, apparently
unaware of what the intruder was referring to, responded
that the men had nothing of value but that the intruders
could take anything they wanted from the house, including
the keys to Bowen's new truck. As the robbery was winding
down and the intruders prepared to leave, the man holding
the shotgun pointed it at Pender, “racked” the gun, and
then pulled the trigger. The gun went off, killing
Pender. Several men were involved in planning the
robbery. Three of the other men involved identified
defendant as the man holding the shotgun.

State v. Bunch, 675 S.E.2d 103, 104 (N.C. Ct. App. 2009).

Despite the fact that he is similarly situated to Defendant in this

case, Bunch has not been prosecuted in federal court for any crime.

" " " " " " " " " " " " " " " " ! Antonio Chance — Wake County (Exhibit 10). In 2008,

Antonio Chance, an African American male, pled guilty to the murder

of Cynthia Moreland, an African American female. Prosecutors say

that Chance kidnapped Moreland from a downtown Raleigh parking deck

and used Moreland’s ATM card and her cell phone. Moreland’s body

was found, clothed only in her underwear, in Harnett County ten

days after she went missing. The autopsy report indicates that

Moreland may have been strangled, but the pathologist could not say

for certain how Moreland was killed since her body was so badly

decomposed. Although prosecutors sought the death penalty in

Chance’s case, he was sentenced to life in prison due to the fact

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that he has an IQ below seventy. Chance was not charged in federal

court with any crime.

! Garland Fisher – Northampton County (Exhibit 11). In

May 2008, Garland Fisher, an African American male, was arrested

for the murder and kidnapping of Nekia Hunter, an African American

female. Fisher allegedly broke into Hunter’s home, stabbed her

boyfriend several times, and kidnapped Hunter. Hunter’s car was

later found abandoned on a remote road, and her body was found in

an abandoned house in the area. Some cash was allegedly taken from

Hunter’s boyfriend, Ricky Harris, during the incident. No charges

have been brought in federal court against Fisher.

2. Defendant’s evidence of discriminatory intent

There is substantial evidence demonstrating that in the

Middle District of North Carolina, the State of North Carolina, and

throughout the entire United States, race is a significant factor

in the decision to seeking the death penalty and in the actual

sentencing of a defendant to the death penalty. Furthermore,

defendant has also offered other non-statistical circumstantial

evidence in this case of discriminatory intent that should be

considered by this court.

a. Death penalty decisions in the Middle District of North
Carolina.

The strongest evidence of discriminatory intent in this case

is the fact that from 1998 to 2007, there were 1,098 murders

committed in the twenty-four counties comprising the Middle

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District of North Carolina in which a firearm was used,13 yet this

case is the only one in which the death penalty has been

authorized. Between 1998 and 2008 in the Middle District of North

Carolina, Mr. Atwater is only the third defendant to be charged in

an indictment for a death-eligible offense. The other federal

indictment brought by the United States Attorney’s Office in which

death was a possible penalty was charged against two defendants

primarily because it occurred on a portion of Fort Bragg located in

the Middle District of North Carolina. The United States Attorney

never sought authorization to proceed capitally in that case.

Guilty pleas were accepted with the provision that the defendants

would receive life sentences without parole and the government

would not seek the death penalty. See, United States v. Arthur

Hermes, et al 1:01CR00307 (MDNC)

b. Studies on the effect of race on death penalty decisions
in North Carolina.

Several studies focusing specifically on the death penalty in

North Carolina have shown that both the race of the defendant and

the race of the victim have a significant effect on the decision to

seek and impose the death penalty.

Professors Barry Nakell and Kenneth Hardy of UNC-Chapel Hill

conducted a study of potential capital cases prosecuted in North

Carolina in 1977-78, after the implementation of the current

Capital Sentencing Act. Their study concluded that the race of the

homicide defendant in North Carolina had a significant effect in

13

These figures were obtained from the North Carolina State Bureau
of Investigation and are attached to this brief as Exhibit 12.

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whether the case was prosecuted capitally and whether it was

submitted to the jury as a death-eligible offense. Barry Nakell &

Kenneth A. Hardy, The Arbitrariness of the Death Penalty 158-59

(1987). The study also found that at the verdict stage, the race

of the victim was a serious factor, since “a defendant charged with

murder of a white was six times more likely to be convicted than a

defendant charged with murdering a nonwhite.” Id.

A major 2001 study by two professors from the University of

North Carolina, Isaac Unah and Jack Boger, confirmed that the race
of the victim plays “a real, substantial, and statistically

significant role in North Carolina’s capital sentencing system, one

that simply cannot be attributed to any legitimate sentencing

factors.” Isaac Unah & Jack Boger, Race and the Death Penalty in

North Carolina, An Empirical Analysis: 1993-97 at 4 (attached as

Exhibit 13). Professors Unah and Boger reviewed 502 North Carolina

murder cases from 1993-1997 and found that, “on average, the odds

of receiving a death sentence are increased by a factor of 3.5 when

the murder victim is white.” Id.

In January 2009, Professors Unah and Boger presented another

paper on capital punishment in North Carolina. See Isaac Unah &

Jack Boger, Race, Politics, and the Process of Capital Punishment

in North Carolina (attached as Exhibit 14). The study found “that

despite structural reforms instituted to minimize its policy

effects, race still plays a crucial role in determining capital

punishment. . . .” Id. at 1. Specifically, the paper notes that

“[n]onwhite killers of whites are overwhelmingly more likely to

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receive the death penalty than any other racial configuration.”

Id. at 21, Table 1.

In August 2009, the North Carolina Racial Justice Act was

signed into law, specifically allowing pretrial defendants to

present statistical evidence that death sentences were sought or

imposed significantly more frequently upon persons of one race than

upon persons of another race. See supra note 10. After the law

passed, a major statewide study was launched to examine race in

capital cases in North Carolina since 1990. See Mandy Locke, Race
Law Lacks Traction, News & Observer (Raleigh), Nov. 10, 2009. The

study, conducted by Michigan State University law professors

Catherine Grosso and Barbara O’Brien, will be completed in August

2010. The study will analyze murder cases prosecuted across North

Carolina to determine the current effect of race on death penalty

decision in counties, prosecutorial districts, and judicial

divisions, as well as the state as a whole. While the results of

the study will not be known until August, the undersigned expects

that the results of this study will be consistent with previous

studies showing that race has a significant effect on the decision

to seek and impose the death penalty.

While the statewide study being conducted in North Carolina

pursuant to the Racial Justice Act has not been completed,

significant data has been collected regarding capital prosecutions

in North Carolina since 1988 that proceeded to trial and

sentencing. This data has been shared with Dr. Allan J. Lichtman,

Professor of American History at American University, Washington,

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D.C. who has performed an analysis as it relates to cases in the

Middle District of North Carolina. A copy of his report, Third

Declaration of Allan J. Lichtman, is attached hereto as Exhibit 15.

Dr. Lichtman concluded that Mr. Atwater is “the only murder

defendant in the Middle District of North Carolina during the past

twenty years that the federal government chose to prosecute for

capital murder.” He goes on to say that “Given that decisions by

the federal government to authorize capital murder prosecutions

strongly correlate with the race, gender and ages of defendants and
victims, there is no credible explanation for the unique situation

of Mr. Atwater’s federal capital indictment other than the unique

racial, gender, and age profile of his case.”

3. Nationwide studies on the effect of race and gender on

death penalty decisions.

Several national studies of both the state and federal criminal

justice systems have demonstrated that race, both of the defendant

and of the victim, is a significant factor in the decisions to seek

and impose the death penalty. See, e.g., David C. Baldus et al.,

Equal Justice and the Death Penalty (1990) (race of defendant and
race of victim predictors of death sentences in Georgia); David C.

Baldus & George Woodworth, Race Discrimination in America’s Capital

Punishment System Since Furman v. Georgia: The Evidence of Race

Disparities and the Record of Our Courts and Legislatures in

Addressing the Issue (1997) (report prepared for the American Bar

Association) (race of defendant and race of victim predictors of

death sentences in several states, including North Carolina); U.S.

Dep’t of Justice, The Federal Death Penalty System: A Statistical

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Survey (1988-2000) (2000) (disproportionate numbers of minority

defendants prosecuted capitally; disproportionate number of cases

of white victims prosecuted capitally in federal system); U.S.

General Accounting Office, Death Penalty Sentencing: Research

Indicates Pattern of Racial Disparities (1990) (finding that in

eighty-two percent of the empirical studies on race and the death

penalty which had been conducted up to that time, the race of

victim was found to influence the likelihood of being charged with

capital murder or receiving a death sentence, i.e., those who

murdered whites were found more likely to be sentenced to death

than those who murdered blacks).

Such studies have been very influential in the recommendations

of prominent organizations, such as the American Law Institute

(ALI). ALI produces scholarly works, such as the Model Penal Code,

to clarify, modernize, and otherwise improve the law. Notably, in

October 2009, the ALI Council voted to withdraw the sections of the

Model Penal Code concerning capital punishment, “in light of the

current intractable institutional and structural obstacles to

ensuring a minimally adequate system for administering capital

punishment.” In making this significant decision, ALI members

relied on a report prepared concerning capital punishment, which

included a large section discussing race discrimination. See Carol

S. Steiker & Jordan M. Steiker, Report to the ALI Concerning

Capital Punishment, www.ali.org/doc/Capital%20Punishment_web.pdf.

The report cited “a robust relationship between the race of the

victim and the decision to seek death and to obtain death sentences

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(also controlling for non-racial variables).” Id. at 28. In

addition to purely empirical data, the report also cites to

scholarly literature on the death penalty. For example, one work

cited reports a positive relationship between death sentences, the

size of a jurisdiction’s African American population, and past

lynching activity. Id. at 29 (citing David Jacobs et al.,

Vigilantism, Current Racial Threat, and Death Sentences, 70 Amer.

Soc. Rev. 656 (2005)).

There is also empirical evidence that gender — both of the

defendant and of the victim — plays a role in sentencing and

punishment in the United States. In a study of male and female

felony defendants, females were sentenced less harshly than males

for similar offenses. See Cassia C. Spohn & J.W. Spears, Gender

and Case Processing Decisions: A Comparison of Case Outcomes for

Male and Female Defendants Charged with Violent Felonies, 8 Women

& Crim. Just. 29 (1997). Indeed, “[a] woman facing execution is a

particularly rare event inasmuch as it is relatively rare for a

woman to receive the death penalty.” Unah & Boger, Race, Politics,
and the Process, supra, at 13.

When the gender of the victim is considered, the evidence of

an “arbitrary factor” and of “prejudice” becomes more apparent.

Violent offenses against women are more likely to elicit the death

penalty than offenses against men. See David C. Baldus et al.,

Equal Justice and the Death Penalty 73, 78 (1990) (“the presence of

a female victim, on average, raises the predicted jury death-

sentencing rate by .08 (7 percentage points).”); see also Michael

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J. Songer & Isaac Unah, The Effect of Race, Gender, and Location in

Prosecutorial Decisions to Seek the Death Penalty in South

Carolina, 58 S.C. Law Rev. 161, 194 (2006) (finding that in South

Carolina, “[t]he odds were 2.19 times higher that female victim

murders would lead to a capital prosecution than male victim

murders, after controlling for all available factors relating to

aggravation of the homicide.”).

4. Other Evidence of Discriminatory Intent

In the “Old South,” it was death for a Back man to even look,
in some instances, at a white female. Our history is full of

stories detailing the lynching of Black men for alleged crimes

against white women. No other crime aroused the passion of the

white establishment more than one involving a Black man accused of

committing a crime against a white female. In the present case, we

have two young Black men accused of killing a young beautiful and

extremely popular white female who was president of the student

body at the University of North Carolina at Chapel Hill. The

reaction of law enforcement and the public has been the same as
existed in the “Old South,” some black man has to die. What other

explanation can there be for the unique treatment this case with

simultaneous prosecutions in state and federal court? What other

explanation can be given for the federal prosecution of Mr.

Atwater and not Mr. Lovette? The obvious answer is that Mr.

Lovette cannot be legally killed because of his age at the time the

crimes were committed. Why is this case more worthy of federal

prosecution than the other 1,098 murders previously mentioned? Why

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is this case more worthy of federal prosecution than the murder of

an East Indian graduate student at Duke University? Ask the

following question. If all the facts were the same, except Eve

Carson had been an African-American female and student body

president at North Carolina Central University, a historically

Black college in Durham, North Carolina, would a federal

prosecution have been sought and would pursuit of the death penalty

have been authorized? History says: No.

Many, including the media and legal scholars, have speculated

that the United States Attorney decided to prosecute Mr. Atwater in

federal court because there have been no death penalty sentences

imposed in Orange County, North Carolina, since 1970 or 1971. The

last execution from Orange County occurred in 1948. (Exhibit 16.)

If, in fact, that concern prompted the decision to file charges in

federal court, why then were charges not filed in the thirty-two

other murder cases occurring in Orange County between 1998 and

2007, according to North Carolina SBI statistics?

It is impossible to view the decisions made in Mr. Atwater’s

case without concluding that they were made, at least in part, on

the basis of the race, gender of the victim and her position as

president of the student body of the University of north Carolina

at Chapel Hill, as well as the race and gender of Mr. Atwater.

CONCLUSION

Mr. Atwater contends that the decision to charge him in

federal court and seek the death penalty was based was based on

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unjustifiable standards such as race, religion, or other arbitrary

classifications, in violation of his right to equal protection

under the Fifth Amendment, and his right to be free from cruel and

unusual punishment under the Eighth Amendment. He further contends

that he has set forth sufficient evidence of both discriminatory

intent and discriminatory effect sufficient to justify barring

death as a possible penalty in this matter and/or in the

alternative to obtain limited discovery on a claim of selective

prosecution.
For the reasons set forth herein, Mr. Atwater respectfully

requests that the court issue an order barring death as a possible

penalty in this action or in the alternative order the United

States Attorney’s Office for the Middle District of North Carolina

to provide Mr. Atwater with the following discovery:

A. All correspondence (including e-mails and internal

memorandum regarding phone calls or verbal conversations) from the

United States Attorney’s Office regarding the decision to seek the

death penalty against Mr. Atwater, including but not limited to:
i. the “Death Penalty Prosecution Memorandum” as

described at § 73 of the Department of Justice Criminal Resource

Manual;

ii. the “Death Penalty Evaluation Form for Homicides

under Title 18” and all attached memoranda as described at §74 of

the Department of Justice Criminal Resource Manual;

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 iii. the “Non-decisional Case Identifying Information”

form identifying the race of defendant and victims as described

at §74 of the Department of Justice Criminal Resource Manual;

B. Captions and case numbers of all cases submitted to

the Capital Case Review Committee of the Department of Justice in

the United States between June 6, 2001 and the present date, with

a description of the offense(s) charged and the ultimate

disposition of the case and the race or ethnic background of the

defendants and victims;

C. All standards, policies, practices, or criteria

employed by the Department of Justice to guard against the

influence of racial, political, or other arbitrary or invidious

factors in the selection of cases and defendants for capital

prosecution;

D. For each of the cases identified in item (B) above,

the following information:

i. the “Death Penalty Prosecution Memorandum” as

described at § 73 of the Department of Justice Criminal Resource

Manual;

ii. the “Death Penalty Evaluation Form for

Homicides under Title18” and all attached memoranda as described

at §74 of the Department of Justice Criminal Resource Manual;

iii. the “Non-decisional Case Identifying

Information” form identifying the race or ethnic background of

37

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defendants and victims as described at §74 of the Department of

Justice Criminal Resource Manual;

iv. The Presentence Investigation Report.

E. Any correspondence (including e-mails and internal

memorandum documenting phone calls or verbal conversations) from

the Department of Justice to United States Attorneys and their

respective staffs between June 6, 2001 and the present regarding

federal death penalty policies, procedures, and selection

criteria, or identifying cases to be considered for capital

prosecution under federal law;

F. All policies or practice manuals used by the United

States Attorney in the Middle District of North Carolina

regarding the factors used to determine whether to charge

defendants under state or federal law or whether or when to seek

the death penalty.

G. A list of all death-eligible indictments originating

in the Middle District of North Carolina since June 6, 2001, the

race of the defendant, the race of the victim(s) and the ultimate
disposition of the cases.

H. A list of all non-negligent homicide cases in the

Middle District of North Carolina known to the Justice Department

or to the FBI in which one or more defendants was arrested and

charged by state or federal law enforcement authorities,

including all those in which the facts would have rendered the

offenders eligible for the death penalty under federal law.

38

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 I. All correspondence (including e-mails and internal

memorandum documenting phone calls or verbal conversations),

records of meetings, names of defendants discussed, police

reports, information contained in data bases maintained by

federal, state or local law enforcement agencies in the Middle

District of North Carolina related to programs administered by or

in cooperation with the United States Attorney’s Office or the

Department of Justice, i.e. Project Safe Neighborhoods, ZAP, etc.

Respectfully submitted this the 1st day of February, 2010.

/s/ Gregory Davis

GREGORY DAVIS
Senior Litigator
N.C. State Bar No. 7083
251 N. Main Street, Suite 849
Winston-Salem, NC 27101
(336) 631-5278
E-mail: greg_davis@fd.org

/s/Kimberly C. Stevens
Kimberly C. Stevens
Attorney for Defendant
N.C. State Bar No. 20156
532 Ivy Glen Dr.
Winston-Salem, NC 27127
336-788-3779
Email: kimstevensnc@aol.com
COUNSEL FOR DEFENDANT
DEMARIO JAMES ATWATER

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 CERTIFICATE OF SERVICE

I hereby certify that on February 1, 2010, I electronically filed

the foregoing with the Clerk of the Court using the CM/ECF system
which will send notification of such filing to the following:

Mr. Clifton T. Barrett

Ms. Sandra Hairston
Assistant United States Attorneys
P. O. Box 1858
Greensboro, NC 27402

Respectfully submitted,

/s/ Gregory Davis

GREGORY DAVIS
Senior Litigator
NC State Bar No. 7083
251 N. Main Street, Suite 849
Winston-Salem, NC 27101
(336) 631-5278
E-mail: greg_davis@fd.org

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