Professional Documents
Culture Documents
Selective Prosecution
Selective Prosecution
because the decision of the United States to charge Mr. Atwater and
5841, 5861(d) and 5871, and Title 18, United States Code, Section
2.
Weapon and various other charges. The State had given notice of
its intent to seek the death penalty and had been granted
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
white female. He further contends that the court should allow him
ARGUMENTS
See United States v. Armstrong, 517 U.S. 456, 464 (1996); Wayte v.
470 U.S. at 610 (citing Pers. Admin. of Mass. v. Feeney, 442 U.S.
F.3d 1173, 1178 (10th Cir. 2001). Federal courts have emphasized
not black and could have been prosecuted for the offenses for which
The Armstrong court also suggested that the defendant “could have
investigated whether similarly situated persons of other races were
Id.
applies equally even in cases where the government seeks the death
original).
include:
them.” Id.; see also United States v. Khan, 461 F.3d 477, 498 (4th
group that supported the Taliban and Al-Qaeda, were not similarly
“present the most direct threat to the United States and its
interests”).
than the burden for proving the claim on the merits, it should not
F.3d 969 (6th Cir. 1998) (hereinafter “Jones I”), more accurately
evidence that law enforcement referred him and his codefendant6 for
II, it was not until after discovery, when the district court was
firearm, and amount of cocaine base.” Jones II, 399 F.3d at 646
10
effect, and the Sixth Circuit affirmed. Id. Thus, although the
could have been prosecuted federally under the same statute, but
11
States v. Avery, 137 F.3d 343, 355 (6th Cir. 1997); see also Batson
12
conclusion can be reached but that the action was taken for a
Chinese owners, but “80 others, not Chinese subjects, are permitted
(1960) (where all but a few of the 400 blacks of Tuskegee, Alabama
but where no whites were displaced, the Court held that for all
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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.”).
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defendant.” Id.
In affirming denial of the petition, the Supreme Court
15
Id. at 294-95.
penalty. See id. at 296. Nor does Defendant in this case seek to
Belmontes v. Brown, 414 F.3d 1094, 1127 (9th Cir. 2005) (“We
16
10
17
prosecution claim.
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,
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crimes would violate some of the same federal laws that Mr. Atwater
gender of the victim is different from Ms. Carson, or the race and
gender of the defendant is different from Mr. Atwater, or both.
In January 2008, Mr. Oates was charged with murder and robbery with
11
19
target for a robbery, and then was killed with a firearm. In both
cases, the victim’s ATM card was used either before or after the
victim’s murder. The most obvious difference between the two cases
is the race and gender of the victims: Ms. Carson was a white
12
Mr. Lovette has not been indicted federally in Ms. Carson’s case.
The government may contend that this fact demonstrates a lack of
discriminatory effect, since Mr. Lovette is also an African
American male accused of killing a white female. However,
Defendant contends that the fact that Mr. Lovette was not indicted
federally actually strengthens his showing of discrimination.
Specifically, Mr. Lovette was only seventeen years old at the time
of Ms. Carson’s murder, and therefore ineligible for the death
penalty, while Defendant was twenty one at the time of the
incident. Apart from their death penalty eligibility, there is no
other distinguishable, legitimate reason why the government would
not prosecute Mr. Lovette federally for Ms. Carson’s murder,
considering that Mr. Lovette and Defendant were allegedly involved
in the exact same crime. See Jones, 159 F.3d at 978 (“It would
have been beyond foolish for law enforcement to [not indict the
white codefendant federally], considering that Jones’s and [the
codefendant’s] cases involved the same events.”).
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and Oates are similarly situated defendants who were not prosecuted
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
girlfriend, Cherry also held her at gunpoint and used duct tape to
the two men knew each other; rather, prosecutors believe that
Cherry killed the victim for his car, which was parked outside of
the apartment.
the case, but later offered Cherry a plea deal at the urging of the
not been indicted in federal court for any crimes. The major
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following facts:
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
African American female, was shot when the Greensboro hat shop she
pled guilty to accessory after the fact to murder and was sentenced
22
indicted in federal district court for any crime, despite the fact
Bowens, who in June 2007 was visiting his aunt in Durham when
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.
Durham. Rogers has not been indicted for any of these alleged
North Carolina.
black male, has been charged in Guilford County with the first-
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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
approached Salado in front of the store, shot him twice, took the
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
white male, during an armed robbery of the Lucky Mart store where
Sweitzer worked. Jackson and Covington have also been also charged
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were not indicted in federal court for the October 31, 2007 robbery
and Sweitzer’s death. See United States v. Jackson et al.,
both pled guilty to three of the twenty-one counts against them and
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
the murders. Hartford and Smith have been indicted in state court
for the murders but no federal charges have been filed in spite of
North Carolina.
2006, Kyle Bunch was sentenced to life in prison for the first-
25
State v. Bunch, 675 S.E.2d 103, 104 (N.C. Ct. App. 2009).
case, Bunch has not been prosecuted in federal court for any crime.
" " " " " " " " " " " " " " " " ! Antonio Chance — Wake County (Exhibit 10). In 2008,
and used Moreland’s ATM card and her cell phone. Moreland’s body
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
26
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
is the fact that from 1998 to 2007, there were 1,098 murders
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case is the only one in which the death penalty has been
Guilty pleas were accepted with the provision that the defendants
would not seek the death penalty. See, United States v. Arthur
North Carolina have shown that both the race of the defendant and
Capital Sentencing Act. Their study concluded that the race of the
13
These figures were obtained from the North Carolina State Bureau
of Investigation and are attached to this brief as Exhibit 12.
28
North Carolina, Isaac Unah and Jack Boger, confirmed that the race
of the victim plays “a real, substantial, and statistically
factors.” Isaac Unah & Jack Boger, Race and the Death Penalty in
Exhibit 13). Professors Unah and Boger reviewed 502 North Carolina
murder cases from 1993-1997 and found that, “on average, the odds
29
upon persons of another race. See supra note 10. After the law
capital cases in North Carolina since 1990. See Mandy Locke, Race
Law Lacks Traction, News & Observer (Raleigh), Nov. 10, 2009. The
2010. The study will analyze murder cases prosecuted across North
the study will not be known until August, the undersigned expects
sentencing. This data has been shared with Dr. Allan J. Lichtman,
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strongly correlate with the race, gender and ages of defendants and
victims, there is no credible explanation for the unique situation
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.
Addressing the Issue (1997) (report prepared for the American Bar
31
(ALI). ALI produces scholarly works, such as the Model Penal Code,
October 2009, the ALI Council voted to withdraw the sections of the
victim and the decision to seek death and to obtain death sentences
32
for similar offenses. See Cassia C. Spohn & J.W. Spears, Gender
woman to receive the death penalty.” Unah & Boger, Race, Politics,
and the Process, supra, at 13.
Violent offenses against women are more likely to elicit the death
Equal Justice and the Death Penalty 73, 78 (1990) (“the presence of
33
Carolina, “[t]he odds were 2.19 times higher that female victim
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
have two young Black men accused of killing a young beautiful and
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
Atwater and not Mr. Lovette? The obvious answer is that Mr.
Lovette cannot be legally killed because of his age at the time the
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following question. If all the facts were the same, except Eve
prosecution have been sought and would pursuit of the death penalty
federal court, why then were charges not filed in the thirty-two
the basis of the race, gender of the victim and her position as
CONCLUSION
federal court and seek the death penalty was based was based on
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under the Fifth Amendment, and his right to be free from cruel and
prosecution.
For the reasons set forth herein, Mr. Atwater respectfully
death penalty against Mr. Atwater, including but not limited to:
i. the “Death Penalty Prosecution Memorandum” as
Manual;
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the United States between June 6, 2001 and the present date, with
prosecution;
Manual;
37
race of the defendant, the race of the victim(s) and the ultimate
disposition of the cases.
including all those in which the facts would have rendered the
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/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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Respectfully submitted,
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