BY BETH VELLIQUETTE

bvelliquette@heraldsun.com; 918-1042

CHAPEL HILL -- Attorneys representing Demario James Atwater have filed a motion in U.S. District Court to strike the death penalty authorization U.S. Attorney General Michael Mukasey made last year.

The motion is dated Oct. 28, 2009, but it refers to events that occurred in September 2008.

Atwater, 23, is one of two people accused of killing UNC Chapel Hill student and student body president Eve Carson on March 5, 2008. Laurence Alvin Lovette, who was 17 when Carson died, and Atwater have both been charged with first-degree murder for allegedly killing Carson.

Because Lovette was only 17 when Carson died, he is not eligible for the death penalty.

Orange-Chatham District Attorney Jim Woodall said he would seek the death penalty for Atwater and then federal prosecutors indicted Atwater for kidnapping resulting in death, carjacking resulting in death and illegal possession of firearms resulting in death, and said they would also seek the death penalty against Atwater.

In the motion filed by Atwater's court-appointed attorney, Gregory Davis, he states that he was ill and scheduled to have a radiation procedure on the day of the federal hearing at which the death penalty was discussed. He requested in advance that the hearing be rescheduled but was informed the hearing would not be rescheduled.

Atwater's co-counsel, Kimberly Stevens, appointed only six weeks before the hearing, did attend the hearing in Washington but did not have the benefit of having thorough knowledge of the case or of being able to confer with Davis, when she was asked questions about the case, Davis wrote in the motion.

On the other hand, according to Davis, the U.S. Department of Justice was represented by five attorneys at the hearing.

The government announced on Jan. 15, 2009, that it would seek the death penalty against Atwater, the motion states.

"Mr. Atwater served a lengthy written request for reconsideration of Attorney General Mukasey's death authorization on the Department of Justice on August 10, 2009," the motion states. "That document raised issues, among others, of racial discrimination in the authorization of the death penalty in this case. Just three business days later, ... the Capital Case Committee denied, without any consultation with Defendant's counsel, the request for reconsideration."

Davis argues in the motion that because only one of Atwater's attorneys was able to attend the hearing, Atwater did not receive a fair hearing because he was deprived of his full legal counsel at a critical hearing.

"This deprivation, at a pivotal junction in the case, requires the government to provide a remedy to Mr. Atwater ... to wit, a new death penalty authorization hearing conducted before the Capital Case Review Committee in Washington, D.C. prior to the new Attorney General deciding whether to authorize the death penalty," the motion states.

"It is critical that justice, in the present case, provide the appearance of fairness."

Davis request that the Department of Justice be ordered to start over in making the decision to pursue the death penalty.