Eric McDavid was freed recently after serving nine years in federal prison, after extensive evidence that the FBI refused to produce prior to his trial mysteriously showed up in an FBI file. The evidence was the most important piece in the entire case (“Mistake was made, but no misconduct in eco-terror case”; Jan. 17).
The evidence contained letters and emails from McDavid to an FBI informant named “Anna,” as well as FBI documents showing their own questions about her credibility. Had this evidence been disclosed before trial – it was ordered to be produced by a federal judge – it would have resulted in a pretrial dismissal of all charges or an easy acquittal.
The case speaks very poorly of our current federal criminal justice system and points out the fact that we have no mechanism sufficiently in place to ensure fairness and due process. I must ask what we can do to correct the problem.
McDavid’s conviction was based on the FBI’s desire to cover up its mistakes. Specifically, the investigation was extremely expensive, using surveillance aircraft, rented cabins, numerous government agencies; and broke the law on many occasions, with illegal political spying on lawful gatherings and illegal wiretaps, and required the untrained and unsupervised 18-year-old informant to commit serious federal crimes.
From 2006 to the appeal of his 20-year sentence, I sought through aggressive legal motions to gain all evidence of McDavid’s writings to the informant, which would show his romantic interest in the informant and her methods of seducing him, as well as his reluctance to commit the crime. I also sought evidence casting doubt on the informant’s credibility.
Not only did the federal government deny these items existed in its written responses to these motions and in arguments to the court, prosecutors filed proactive motions to prevent any trial defense which discussed romance between McDavid and the FBI informant, or his reluctance to commit the crime.
In the closing argument to the jury, prosecutors mocked the defense position that “love letters” existed and pointed to the lack of any such evidence. I had also filed a motion to dismiss the case because of the improper method of creating a romance with the defendant by the FBI informant. The government argued to the judge that I had no letters to prove it; the motion was denied.
Jurors submitted sworn declarations that they were very close to an acquittal, based upon the improper creation of romance by the informant and their view of reluctance by McDavid. They also had doubts about the informant’s credibility.
No one is silly enough to believe that writings and emails were “forgotten” or “overlooked,” or that the failure to disclose them was inadvertent. The FBI agents sat at the counsel table as a member of the court for all proceedings.
We deserve a better answer than what we are currently getting.
Mark J. Reichel is a Sacramento attorney at Reichel, Plesser.