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CHAPEL HILL -- A federal judge is expected to hear arguments Wednesday about whether the trial of Demario James Atwater should be moved out of state.
Atwater is charged with crimes associated with the death of Eve Carson. If convicted, he could be sentenced to death.
Atwater, 23, and Laurence Lovette Jr., 19, also face murder and kidnapping charges in state court in Orange County in the death of Carson, the UNC student body president found shot to death in a residential neighborhood in Chapel Hill on March 5, 2008.
Lovette is not facing federal charges, presumably because he was not old enough at the time of Carson's death to receive the death penalty.
Atwater's attorneys in the federal case filed a motion asking that his trial, scheduled for May in Winston-Salem, be moved out of state because of the pre-trial publicity.
They cited a survey they commissioned and also included as evidence comments people made on various news and other Web sites. Some comments indicated the writers believe Atwater is guilty and should be put to death immediately.
The prosecutors, in a superseding motion filed Friday, criticized the survey, saying the methodology of its author, Richard Seltzer, was flawed.
In one instance, Seltzer refers to a Web site called Zimbio "calling Defendant Atwater a 'scumbag,' further claiming that this is 'indicative of the strong negative emotions on this case,'" prosecutors wrote. "'Zimbio' is an online magazine service and is in no way a 'legitimate' news organization. Further, few if any articles from legitimate news sources identify Defendant Atwater in this way."
Prosecutors also contended that survey participants were not provided with information about the basic tenets of a criminal trial, such as that a defendant is presumed innocent, that the government must prove the case beyond a reasonable doubt and that the defendant can refuse to testify or offer evidence.
"That 'Mr. Atwater has already been tried, convicted and sentenced to die in the North Carolina court of pubic opinion,' is hardly supported by the data," the motion states.
Using the survey's information and percentages, prosecutors argued that with a potential jury pool of 2,080,284 people, that means approximately 387,612 potential jurors are unfamiliar with or unaware of the case against Atwater.
"Even excluding 57.1 percent of potential jurors who indicated they either definitely or probably thought Defendant Atwater is guilty of murder of Eve Carson, that would still leave a potential jury pool of approximately 382,442 people from which to select a jury," the motion said.
Judge James A. Beaty Jr. is expected to hear the motion Wednesday at 9:30 a.m. in Winston-Salem.
