Selective Prosecution

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF NORTH CAROLINAUNITED STATES OF AMERICA ::v. : No. 1:08CR384-1:DEMARIO JAMES ATWATER :MOTION TO BAR THE DEATH PENALTY BECAUSE OF DISCRIMINATION IN THEDECISION TO CHARGE AND SEEK THE DEATH PENALTY AND/OR FORDISCOVERY OF INFORMATION PERTAINING TO THE GOVERNMENT’S DECSIONTO CHARGE THE DEFENDANT AND PURSUE THE CASE CAPITALLYDEMARIO JAMES ATWATER, by and through his undersigned legalcounsel, Assistant Federal Public Defender Gregory Davis andAttorney Kimberly C. Stevens, does hereby move this Honorable Courtfor an order striking death as a possible penalty in this actionbecause the decision of the United States to charge Mr. Atwater andseek the death penalty was arbitrary and race-based, in violationof the Fifth and Eighth Amendments to the United StatesConstitution. In support of this motion, Mr. Atwater shows thefollowing to the court:INTRODUCTIONMr. Atwater is charged in a superceding five count indictmentwith “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, UnitedStates Code, Sections 2119(3) and 2; in Count Three with use of afirearm during and in connection with a crime of violence,resulting in the death of Eve Marie Carson, in violation of Title18, United States Code, Sections 924(c)(1)(A)(iii),

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

924(c)(1)(B)(I), 924(j)(1) and 2; in Count Four with possession ofa firearm by a convicted felon, in violation of Title 18, UnitedStates Code, Sections 922(g)(1) and 2; and in Count Five withPossession of a Shotgun having a barrel length shorter than 18inches, in violation of Title 26, United States Code, Sections5841, 5861(d) and 5871, and Title 18, United States Code, Section2.Prior to the indictment of Mr. Atwater by the United States,he had been charged by the State of North Carolina with FirstDegree Murder, First Degree Kidnaping, Robbery with a DangerousWeapon and various other charges. The State had given notice ofits intent to seek the death penalty and had been grantedpermission by the state court.The investigation of the crimes was primarily conducted by theChapel Hill, North Carolina Police Department, and the NorthCarolina State Bureau of Investigation.On or about July 7, 2008, a “Target Letter” was sent toMr. Atwater informing him that he was currently being investigatedregarding certain matters which occurred in Chapel Hill, NorthCarolina, 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 MillsWagner, 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 FederalPublic Defender Gregory Davis concerning the government’s

2

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

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. Inquirieswere made as to why the government was choosing to bring this caseto 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 MiddleDistrict of North Carolina

in which a firearm was used

, accordingto statistics from the North Carolina State Bureau ofInvestigation. Mr. Atwater’s case is only the second case chargedin the Middle District of North Carolina between 1998 and 2008 onan indictment in which death was a possible penalty. The othercase charged involved a murder which occurred on a portion of amilitary reservation which was located in the Middle District ofNorth Carolina. As will be demonstrated below, both statistics andcomparison with other similarly-situated defendants reveal that theoverriding reason that Mr. Atwater was indicted in federal courtwas that he was a young, black male accused of killing a young,white female

.

He further contends that the court should allow himdiscovery from the government to support his claim.ARGUMENTSA.WHILE PROSECUTORS ARE GRANTED BROAD DISCRETION TO ENFORCECRIMINAL LAWS, PROSECUTORIAL DECISIONS MUST NOT VIOLATE EQUALPROTECTION PRINCIPLES.The Attorney General and the United States Attorneys generallyretain broad discretion to enforce federal criminal laws; however,

3

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