Selective Prosecution

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),
Case 1:08-cr-00384-JAB Document 141 Filed 02/01/10 Page 1 of 178

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

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,

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)).

“[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

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.

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.

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

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.

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

(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

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

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
13

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

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
15

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”).
16

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).
17

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
18

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).
19

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.”).
20

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

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
22

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-
23

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
24

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
25

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

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
27

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

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
29

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,
30

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

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

(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
33

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
34

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
35

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;
36

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

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

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.
336-788-3779
Email: kimstevensnc@aol.com
COUNSEL FOR DEFENDANT
DEMARIO JAMES ATWATER
39

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
(336) 631-5278
E-mail: greg_davis@fd.org
40


Selective Prosecution

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Selective Prosecution

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA :

MOTION TO BAR THE DEATH PENALTY BECAUSE OF DISCRIMINATION IN THE

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

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:

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),

Case 1:08-cr-00384-JAB Document 141 Filed 02/01/10 Page 1 of 178

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

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

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

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

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

Case 1:08-cr-00384-JAB Document 141 Filed 02/01/10 Page 2 of 178

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

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,

discovery from the government to support his claim.

A. WHILE PROSECUTORS ARE GRANTED BROAD DISCRETION TO ENFORCE

The Attorney General and the United States Attorneys generally

retain broad discretion to enforce federal criminal laws; however,

Case 1:08-cr-00384-JAB Document 141 Filed 02/01/10 Page 3 of 178

enforce criminal laws are subject to constitutional constraints.

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