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CHAPEL HILL -- Attorneys for Demario Atwater have filed hundreds of pages of motions in his federal case asking among other things that a judge rule that the death penalty is unconstitutional.
Atwater is charged with various crimes associated with the slaying of UNC Chapel Hill student body president Eve Carson, who was found shot to death on the morning of March 5, 2008, in a quiet residential neighborhood near the UNC campus.
Atwater and his co-defendant, Laurence Lovette Jr., also face murder and kidnapping charges in state court, but Lovette does not face charges in federal court, presumably because he was too young at the time of the crime to be eligible for the death penalty.
Atwater's federal trial is scheduled to begin in May in Winston-Salem. A judge already is considering a motion by defense attorneys Gregory Davis and Kimberly Stevens, to move the trial out of state because of the pre-trial publicity.
Among the most recent motions, one states that if the judge does not grant a change of venue to move the trial out of state, then jurors should be selected only from Orange County. The attorneys cited a federal statute that for a crime punishable by death, the trial shall be held in the county where it was committed "where that can be done without great inconvenience."
Orange County is generally recognized as a jurisdiction where it would be difficult -- if not impossible -- to find jurors who would sentence someone to death.
Because there is no federal courthouse in Orange County, the attorneys say that the trial could still be held in Winston-Salem, but by selecting jurors only from Orange County, it will preserve Atwater's right to a trial in the county where the capital offense occurred.
The motions include several filings regarding the death penalty, including a 73-page motion in which the defendant asks the court for an order prohibiting the government from proceeding to trial as a capital case.
"Any capital sentence imposed in this case ... is in violation of the Defendant's Fundamental Right to Life and to be Treated with Basic Human Dignity including the right not to be tried capitally or be subjected to a penalty of death," the motion states.
It notes that 139 other nations have effectively abolished capital punishment as an acceptable constitutional criminal sanction and states that the development of law through modern world history is evolving away from capital punishment, calling it cruel and unusual.
A 135-page motion asks to strike the death penalty on the grounds it is unconstitutional. Among other things, it states there are apparent racial and regional biases in how the federal death penalty has been administered.
"Mr. Atwater is entitled to know what is 'behind the numbers.' Mr. Atwater is a member of the class of persons most often targeted by the federal death penalty, a black man in the South. As such it is Mr. Atwater's position that he is facing the death penalty, not so much for his alleged actions, but instead for the color of his skin and the region in which he was charged."
Atwater is seeking a hearing on the issue, the motion states.
The motion also addresses what it calls "the invidious circumstances of race-of-defendant and race-of-victim." Atwater is black and Carson was white.
The motion asks that the court declare the federal death penalty unconstitutional.
In preparing for the trial, the attorneys also have filed a motion asking for more peremptory challenges than normal during jury selection because of the substantial media coverage by the case.
"This case is not the 'normal' case and therefore should not be treated the same," the motion states. "Death is different and irrevocable."
A motion also was filed asking that the defense be given the last closing argument by each of Atwater's attorneys should there be a penalty phase.
Atwater has filed several motions about the aggravating factors, which are special elements of the crimes that elevate them for eligibility for the death penalty.
Two are to strike "substantial planning and premeditation" as a statutory aggravating factor, and one of those is for lack of evidence.
If the government proves Atwater had a shotgun at the time of the crime that does not mean he intended to kill anyone with it, particularly Carson, the motion states.
"There is no evidence pointing to the fact that there was substantial planning and premeditation to specifically cause the death of Ms. Carson," the motion states.
Atwater also filed a motion to strike "pecuniary gain" as an aggravating factor due to insufficient evidence.
"No specific factual circumstances exist in the case that suggest that the murder of Eve Carson was committed in anticipation of pecuniary gain in the form of murder for hire, extortion, or fraud," the motion states.
According to various documents, police believe that Atwater and Lovette kidnapped Carson from her home off West Rosemary Street, drove her to various ATMs where they withdrew money from her account, then shot and killed her in a residential neighborhood near her home.
