As the FBI tracked suspected anarchist and ecoterrorist Eric McDavid in 2005, agents ordered up aerial photos of his parents’ Foresthill home to study where he might have tested homemade bombs by exploding them.
They studied the vulnerabilities of one of his suspected targets - a U.S. Forest Service genetics lab in Placerville - and provided “law enforcement sensitive” updates to FBI field offices nationwide, as well as the Secret Service and the White House situation room.
By the time agents had finished the investigation, they had tracked his movements across the country, studied his reading and eating habits and talked to his friends.
But when Sacramento defense attorney Mark Reichel and McDavid filed a Freedom of Information-Privacy Acts request for all records on McDavid dating back to 2000 as they prepared for his criminal trial, the answer that came back was short and simple:
“No records responsive to your FOIPA request were located...,” the FBI advised on June 14, 2007.
Today, the government concedes there were thousands of pages of just such evidence withheld from the defense for years, something officials now are calling “inadvertent.”
But the lapse resulted in McDavid’s release from prison Thursday after nine years in custody and has drawn new attention to the claims his attorneys attorneys have been making for years about government misconduct in his prosecution.
Documents filed in U.S. District Court in Sacramento outline some of the evidence and the assertions made by McDavid’s attorneys that finally won his release, including:
▪ A claim by one of McDavid’s co-defendants that the co-defendant lied during testimony against McDavid at trial on the government’s instruction.
Zachary Jenson, who spent six months in jail before taking a plea deal, provided a sworn declaration to defense attorneys that was filed in court last year by McDavid's attorneys.
“In my first meeting, one of the prosecuting attorneys, after hearing my truthful reciting of the events which formed the charges, became very angry and....physically very upset, in fact, walked out of the meeting,” Jenson recalled. “There was a lot of tension in this first meeting.
“By the end of the meeting, it became very apparent that they did not 'like' my version of the events. ... In my subsequent meetings before the trial, the same dynamic was present. I would tell the prosecutor what happened, in my view, and in my recollection, and they would be unhappy. ...
“I became very aware that if I did not testify to the facts that the government felt occurred, which I did not believe occurred, that my plea bargain would be taken away and I would be charged with the major federal charge and would very likely receive a 20-year sentence. This was a lot of pressure for me to handle.”
▪ Court declarations by two jurors who voted to convict McDavid that they believed he had “a very good case for an entrapment defense” and that “they were astonished to discover the true facts after trial.”
▪ Proof that federal officials, who relied almost entirely on evidence produced and gathered by an FBI undercover informant known as “Anna,” at one point ordered a lie detector test on the 18-year-old woman, then inexplicably canceled it.
That evidence was only recently discovered after the government provided materials to McDavid’s lawyers in response to a Freedom of Information Act request.
FBI documents show “the purpose of the requested Polygraph examination is to confirm veracity of (confidential witness) reporting prior to the expenditure of substantial efforts and money based on the source’s reporting.”
After receiving approval to administer the lie detector test, however, “the source’s (Philadelphia-based) handler, (Special Agent) Rick Torres, decided not to proceed,” the documents state.
▪ Excerpts from a McDavid love letter to Anna and proof of other withheld documents, including 51 reports from the FBI in Miami.
In addition, defense attorneys have persisted in arguing since jury deliberations at trial that contradictory instructions to the jurors from the judge were devastating.
The jury was instructed that there must be a government “agent” involved to create entrapment. The jury was confused about Anna’s status and, during deliberations, asked for clarification from U. S. District Judge Morrison C. England Jr.
Orally from the bench he told the jurors “Yes,” she was an agent, the answer the government and the defense agreed was correct.
Later, however, the judge sent a written response to the jury stating “No,” she was not an agent.
Reichel did not learn of the written response until after the guilty verdict, when the response was filed on the court’s docket. Reichel moved for a mistrial, but England ruled the written response was a “harmless error,” and a federal appellate panel affirmed that ruling.
In a separate matter, the jury had to decide whether McDavid was predisposed to violence. During deliberations, the jurors asked England during what period of time were they to focus on regarding predisposition.
England instructed them that it was from June 2005 forward, a date when McDavid allegedly first indicated he was open to violent “direct attack” on infrastructure and government facilities.
But McDavid first met Anna at a gathering in Des Moines, Iowa, in August 2004, and had been plied with her feminine wiles in order to convert him to a radical long before June 2005. Reichel argued vehemently against the instruction, insisting it was not fair because it blocked the jury from considering a critical period, but England was not deterred and, again, he was upheld on appeal.
In papers filed last year, McDavid's appellate lawyers said those two instructions “eviscerated” the entrapment defense.
Call The Bee’s Denny Walsh, (916) 321-1189.
Timeline of the Eric McDavid case
▪ Defense attorney Mark Reichel files Freedom of Information Act request before alleged ecoterrorist Eric McDavid’s trial in 2007, asking for all FBI files on McDavid; the FBI responds there are no more files than those Reichel already has been given.
▪ McDavid, 37, of Foresthill, is convicted on Sept. 27, 2007, of conspiring to damage or destroy targets that included Nimbus Dam and a U.S. Forest Service lab.
▪ McDavid is sentenced May 8, 2008, to 19 years, 7 months in prison, 61/2 years more than recommended by the Probation Department. His scheduled release date: Feb. 10, 2023.
▪ Defense makes additional Freedom of Information Act requests years later; receives 2,449 pages never previously disclosed. Government calls failure to produce files earlier inadvertent, but enters into settlement talks.
▪ McDavid is released Jan. 8, 2015, after pleading guilty to one count of conspiracy, a crime that carries maximum 5-year punishment, in deal with prosecutors. He agrees not to appeal or pursue a civil lawsuit against the government.