Eric McDavid wants the government to explain how it 'misplaced' the evidence that eventually freed him.
EXCLUSIVE: Tough Questions for Feds After They Jailed an Innocent Man for Nine Years
By Dean Kuipers
Attorney Mark Reichel has been waiting years for answers. Years, he says, during which “not a day goes by that I don’t think about the Eric McDavid case. What happened there was wrong in every way. We don’t live in that kind of country. This is a terribly frightening story in a free society.”
McDavid was released in January after serving nine years of a 20-year sentence on federal ecoterrorism charges. Documents had emerged, two months earlier, that were absent at his trial, including correspondence supporting his claim that he had been entrapped by an FBI operation involving a paid informant.
U.S. Attorneys new to the case had discovered the documents during a search through their predecessors’ file, which they performed in response to a habeas corpus petition challenging the government’s right to hold McDavid. At a court hearing in January, they said the failure to produce the 13 love letters between McDavid and an informant known as Anna—along with almost 3,000 other documents, including an email showing the government had asked to polygraph-test Anna and evidence that she had been coached in the love affair by a Behavioral Analysis Unit—was “inadvertent” and “a mistake.”
This letter, emailed to Eric McDavid's legal team by the office of the U.S. attorney in Sacramento that prosecuted him, led to McDavid's release in January.
Six months later, Reichel was still screaming about the loss—or deliberate withholding—of the documents. He’s a big man, passionate about justice, and he gets worked up: “Who is going to believe they fucking misplaced that shit? I mean, seriously! And then, after he’s convicted nine years later you say, ‘Oh, here they are.’ Do they get that much deference?”
He may soon find out. On July 30, Reichel filed a 28-page motion in federal court in Sacramento asking U.S. District Court Judge Morrison C. England, Jr. to order the government to explain itself. The U.S. Attorney’s Office and the FBI would be required to detail how and why the evidence went missing. The motion also asks the judge to “grant such further relief as the Court deems appropriate.” Maybe someone will be punished. Maybe more transparency can be introduced.
Under terms of his current plea agreement, McDavid, now 37, is not allowed to sue. He wrote in an e-mail, the day of the filing, “Some agents of the government—of the people—withheld documents that could have helped my defense. Someone is responsible, and there needs to be accountabiltiy. Withholding discovery is not unique to my case. If I can do something [with this motion] to aid others, then I want to.”
“Every time the government is caught hiding exculpatory evidence it adds to the pressure for them to become more open, transparent and law abiding,” said attorney Stephen Downs, who has studied terror prosecutions in the U.S.since 9/11. “If this motion results in holding the Government accountable for violating their disclosure obligations I think it might have a significant impact.
Reichel had reason to believe Judge England would be receptive to such a motion. Six months earlier, England, who is not given to great displays of emotion in court, loudly procliamed his anger that prosecutors had failed to disclose the letters previously.
“This is huge!” he barked. “I want to know what happened.… Especially when I’m the one that was in charge of this trial…and I had to rule as to whether or not this entrapment defense would be permitted…. And Isentenced this person to an inordinate amount of time when I shouldn’t have done so. So am I a little upset right now? Yes, I am!”
Who is going to believe they just misplaced that evidence? I mean, seriously! Do they get that much deference?
McDavid’s case was one of hundreds of FBI investigations into homegrown terrorism, eco-sabotage, and Islamist extremism that grew out of a post-9/11 counterterrorism policy that critics have termed “preemptory prosecution.” These operations use paid informants to direct an individual or a group of individuals identified for their political or religious beliefs in a plot of terrorism. But the plots, critics say, are often ginned up by the FBI and never would have taken shape as conspiracies, let alone terrorist events, without the government’s involvement. Many legal experts say the FBI has repeatedly crossed the line into entrapment, as McDavid claimed: “Anna” had strung him along with the suggestion of romance if he would get serious about planning ecoterrorism “actions.”
England would have been aware, in January, of the additional problem of prosecutorial misconduct. Alex Kozinski, then-Chief Judge of the U.S Court of Appeals for of the Ninth Circuit (England’s circuit) had decried a wave of misdeeds, writing in 2013, “There is an epidemic of Brady violations abroad in the land. Only judges can stop it.” (The Brady v. Maryland case established that prosecutors are required to provide to the defense any exculpatory evidence.) One—highly publicized—such example included prosecutors’ withholding of exculpatory evidence in the 2008 corruption case against Senator Ted Stevens of Alaska, whose conviction was later vacated. “Overall the Feds have a very bad reputation for turning over exculpatory information,” says Downs, noting the 2003 Detroit Sleeper Cell case, in which the prosecutor was himself prosecuted for hiding evidence.
During the extraordinary January hearing, McDavid stood in his orange jumpsuit with his prison face on—blank, not displaying any emotion. Skull shaved, his red-orange beard thick and his body sculpted by years of yoga in a six-by-eight-foot cell, he steeled himself for disappointment. He’d endured the prosecution’s mockery at his 2007 trial on charges of conspiracy to blow up a dam, a U.S. Forest Service lab that developed GMO trees, and other targets: “The defendant has said there was a romantic relationship. He has provided no facts of that,” one of the U.S. attorneys said—when the facts were in the government’s possession.
Reichel was just about coming out of his skin during the trial, but other than filing a Freedom Of Information Act request there wasn’t much he could do. His 2007 request came back “No documents found.” Yet here were Assistant U.S. Attorney André Espinosa and Criminal Division Chief, U.S. Attorney’s Office for the Eastern District of California John Vincent—from the same office that had put McDavid away nine years ago—working up a sweat, explaining that all the newly produced evidence could be a violation under Brady. Espinosa and Vincent told the judge that the best idea was to let McDavid plead out and go home. Forthwith. That day.
A handwritten letter from McDavid to the FBI informant, "Anna," was among the correspondence withheld during McDavid's trial.
“I know he’s not necessarily a choirboy,” England said, “but he doesn’t deserve to have to go through this either.” Then he banged the gavel. Case closed.
McDavid didn’t turn to look at his family as he left the courtroom. He wasn’t going to show any emotion until he was Out. The. Door.
“This was just about the most clear-cut case of entrapment you’re ever going to see,” Rosenfeld said later. Reichel added, “If I [had] had these documents, I could have won that case with my brain tied behind my back.”
Downs and Kathy Manley, in their May 2014 studyInventing Terrorists: The Lawfare of Preemptive Prosecution, published by civil liberties organizations Project SALAM and the National Coalition to Protect Civil Freedoms, found that 94.2 percent of all U.S. terror prosecutions from 2001 to 2010 involved defendants whose plots were wholly or partially manufactured by the FBI. “Most of the people convicted of terrorism related crimes posed no danger to the U.S. and were entrapped by a preventive strategy,” they write. The plots often rely on their targets’ need for money, food, apartments, cars. Or, in McDavid’s case, love.
- Read more about McDavid’s story and the circumstances that led to his arrest here on TakePart.com -
