IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA v. DEMARIO JAMES ATWATER

: : : : :

No.

1:08CR384-1

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. its intent to seek the death The State had given notice of 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 2 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.’” 517 U.S. at 464 (internal citations omitted). A selective prosecution claim is not a defense on the merits to the criminal that charge the itself, but has rather brought is an the independent charge for
1

Armstrong,

assertion

prosecutor

unconstitutional reasons. Id. at 463. Prosecutorial decisions are supported by a a “presumption defendant has of regularity.” burden of Id. at 464. the

Accordingly,

the

dispelling

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,
1

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)). 4

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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.’” Wayte, 470 U.S. at 608). “To establish a discriminatory effect in a race case, the claimant must show that similarly situated Id. individuals of a Armstrong, 517 U.S. at 464 (quoting

different race were not prosecuted.”

The discriminatory

purpose element requires that the defendant establish “that the decision to prosecute was ‘invidious or in bad faith.’” States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996). United

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). “less Although this standard is undoubtedly rigorous, it is stringent” than that required to prove a selective

prosecution claim on the merits. F.3d 1173, 1178 (10th Cir. 2001). 5

See United States v. James, 257 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 . . . .” 469. Armstrong, 517 U.S. at

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.
2

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. 6

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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.” 532, 539 (6th Cir. 2001). United States v. Bass, 266 F.3d

The Supreme Court reversed, and in a per

curiam decision, stated that “raw statistics regarding overall charges situated say nothing about charges 536 brought U.S. at against 864 similarly in

defendants.”

Bass,

(emphasis

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. unclear to what that extent other a defendant Nevertheless, it remains seeking discovery are must

demonstrate situated.” the
3

potential

defendants

“similarly

In United States v. Olvis, 97 F.3d 793 (4th Cir. 1996), Circuit indicated that when determining whether

Fourth

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. 7

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defendants

are

similarly

situated,

court

must

examine

all

relevant factors, not simply the relative culpability of the potential defendants.4 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, situated the Olvis court held “that defendants present are no Olvis, 97 F.3d at 744. Such factors

similarly

when

their

circumstances

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, 453 (E.D. Va. 1995). 5 Even though the court of appeals in Olvis indicates that they are reviewing the district court’s discovery order, the opinion reads 8

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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, 517 U.S. at 468. 6 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. 9

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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. Although Jones’s claim for selective prosecution Id. 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.”
7

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. violations, intent the may Supreme be

In evaluating alleged equal Court has recognized direct that and

protection

discriminatory

proved

by

both

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.” 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 Yick Wo,

(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 13

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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 14

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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. and It is Defendant’s contention that McCleskey is factually distinguishable from the present case, and

procedurally

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. 286. Id. at

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

affirming

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 15

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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 of “years after” and the defendant to has the been death

prosecuted,

convicted

murder,

sentenced

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
9

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”). 16

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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 whether evidence defendant that has a court can consider evidence” in of

determining

shown

“some

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). 17

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may

also

shed

some

light

on

the

decisionmaker’s Also,

purposes.”

Arlington Heights, 429 U.S. at 267.

[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.” 159 F.3d 969, 978 (6th Cir. 1998). United States v. Jones, 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. In Defendant’s evidence of discriminatory effect 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

18

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University Defendant

of has

North

Carolina

at

Chapel below

Hill.11 of

Accordingly, situated

provided

examples

similarly

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). 19

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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 In both

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

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.”). 20

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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 21

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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. prosecuted in federal court for any crime. d. (Exhibit 4). Rashaun Thomas McNeil and Michael Vernard Thompson In September 2007, seventy-year-old Betty Thomas, an Murrell has not been

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 22

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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 first23

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

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 24

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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. h. See id.

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. the murders. Both defendants were white. A firearm was used in

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 Three killings that occurred in the Eastern Carolina provide further evidence of

of North Carolina. District of

North

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 firstdegree murder of twenty-one year-old Brian Jarrod Pender, a student 25

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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 26

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that he has an IQ below seventy. court with any crime.

Chance was not charged in federal

! 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 Hunter’s car was

boyfriend several times, and kidnapped Hunter.

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 No charges

Hunter’s boyfriend, Ricky Harris, during the incident. 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

27

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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. 28

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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). despite structural reforms instituted to The study found “that 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 29

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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 The

Law Lacks Traction, News & Observer (Raleigh), Nov. 10, 2009. 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, 30

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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 31

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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 32

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(also controlling for non-racial variables).” addition to purely empirical data, the report

Id. at 28. also cites

In 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 deathsentencing rate by .08 (7 percentage points).”); see also Michael 33

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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? explanation can be given for the federal Atwater and not Mr. Lovette? What other

prosecution of Mr.

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 34

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is this case more worthy of federal prosecution than the murder of an East Indian graduate student at Duke University? following question. Carson had been an Ask the

If all the facts were the same, except Eve 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 35

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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

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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.

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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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