Another view: Mistake was made, but no misconduct in eco-terror case

Eric McDavid, 37, walks out of the U.S. Courthouse in Sacramento on Jan. 8.
Eric McDavid, 37, walks out of the U.S. Courthouse in Sacramento on Jan. 8.

The Sacramento Bee ran two stories covering the agreement between the United States and defendant Eric McDavid, under which McDavid pleaded guilty to the same substantive charge on which the jury had convicted him, and was released from custody after serving almost nine years in prison. The Bee’s coverage of this story departed from its usual standards of fairness. (“Prisoner freed – did FBI hide evidence?” Page A1, Jan. 9, and “Feds call withheld evidence a lapse” Page A1, Jan. 10.)

The government entered into this agreement because of the discovery of the inadvertent non-disclosure of documents prior to McDavid’s 2007 trial. When those documents were discovered late last year, we turned them over to the defense.

A mistake was made, and it is one for which we have attempted to take full responsibility, but there was no intentional concealment of documents and there is no reasonable basis for assertions of misconduct by any prosecutor in this office.

The Jan. 9 story stated that the government “concede(d) that thousands of pages of evidence that should have been given to McDavid’s defense attorney years ago … had instead been secretly held in an FBI file in Sacramento.” This claim was repeated in the Jan. 10 article. That is incorrect.

The U.S. provided 2,400 documents to McDavid in response to his post-conviction Freedom of Information Act request. Many of those documents were produced to McDavid prior to his trial. Many more of them were not relevant and/or required to be produced prior to McDavid’s criminal trial.

The key in that FOIA response was a reference to 10 email communications between McDavid and the informant, and a handwritten letter from McDavid to the informant. The Bee describes this limited set of documents as being “secretly held,” which implies they were intentionally withheld. That assertion is incorrect.

These documents do nothing to change the fact that he committed the acts found by the jury and admitted by McDavid in his plea last week. The documents arguably add to his defense that he was entrapped into committing his crime. That defense was rejected by the jury, and we believe it would likely have been again, regardless of the newly discovered documents.

The government remains confident in the truth of its charges and in the jury’s verdict. So too, apparently, does McDavid, who was placed under oath on Jan. 8, sworn to tell the truth, and admitted he was guilty of the same conspiracy to bomb federal facilities that he was convicted of at trial.

The Jan. 10 article suggests there was prosecutorial misconduct, when there was none in this case. That article referenced claims McDavid had previously raised, which have been refuted by the government and which were not the basis of the parties’ recent agreement.

The majority of McDavid’s post-trial claims concerned his argument that his trial counsel was incompetent, but The Bee skips over those claims and lists four other issues, only one of which – relating to the declaration of cooperating witness Zachary Jenson – is even arguably a claim about prosecutorial misconduct.

The Bee describes the Jenson claim as one that he “lied during trial testimony against McDavid on the government’s instruction.” But Jenson’s vague declaration failed to identify a single fact as to which he would have testified differently, while his trial testimony was corroborated by other trial witnesses and was consistent with the facts McDavid admitted to under oath last week.

The government fully rebutted the Jenson declaration that he was pressured to testify to a particular version of the facts. The article ignored that filing. The Bee’s one-sided description of this unsubstantiated claim unfairly impugned the integrity of prosecutors in this office.

The inadvertent non-disclosure of a limited set of documents in 2007 is unfortunate, and since it is conceivable that it may have resulted in a new trial, this office believed that the right thing to do was to resolve the case for a time-served sentence rather than expend additional resources litigating this case and possibly doing a full retrial. There was no reasonable suggestion of prosecutorial misconduct in this case, however.

Benjamin B. Wagner is U.S. attorney for the Eastern District of California.