Just as improbable-seeming as McDavid’s release, 10 years ahead of schedule, are the circumstances that he and his lawyers say led to his conviction in the first place: His romantic feelings for a pink-haired, 18-year-old activist, “Anna,” who spent months encouraging him and two others to join her in committing acts of eco-terrorism — and who also happened to be a paid FBI informant.
To understand how this all could have happened, you have to go back a decade, to when the Earth Liberation Front (ELF) and other environmental and animal rights extremist groups were considered the nation’s No. 1 domestic terror threat. (These days, the honor is held by the sovereign citizen movement.) According to the FBI, McDavid was the ringleader of an ELF plot to blow up California’s Nimbus Dam and other targets. According to McDavid, all the incriminating things he was caught saying on tape amounted to mere talk — and it was all instigated by Anna.
All the while, McDavid argued, Anna strung him along like a lovesick puppy. His defense argued that he was a victim of entrapment: that she acted on behalf of the FBI to induce him into conspiratorial behavior that he wouldn’t have engaged in otherwise. And his lawyers maintain that new documents — which the U.S. attorney’s office in eastern California says it “inadvertently” failed to disclose — strengthen his case. Among other things, they include letters in which Anna responds to McDavid’s declarations of love (“I hope that my forwardness w/expressing all this doesn’t scare the shit out of u,” he wrote) by hinting at the potential for a future relationship between the two of them.
“I think you and I could be great, but we have LOTS of little kinks to work out,” she wrote.
The attorney’s office maintains that “none of the omitted items were even remotely exculpatory.” But regardless of their content, the fact that they were withheld was enough to get McDavid a settlement. He pleaded guilty to general conspiracy, which carries a maximum five-year sentence, and, having already served nearly twice that, walked. In exchange, he promised not to appeal or sue the government. The ordeal, for McDavid, is mostly over.
But that’s no reason to put the matter to rest. “This is huge,” is how U.S. District Judge Morrison C. England Jr. put it when he signed off on the plea deal. “This is something that needs to be dealt with, and I want to know what happened.”
Mark Reichel, who served as McDavid’s trial attorney, agrees. The FBI’s actions, he told Salon, were improper and at times illegal; that evidence to this effect didn’t come out in the original trial is extremely suspicious, he suggests. Salon spoke with Reichel about his perspective on the case and its broader implications for the way federal investigators and prosecutors go after suspected terrorists. Our conversation has been edited for length and clarity.
Could you describe for me the role you played in McDavid’s case?
I was Eric’s attorney from the day of his arrest all throughout the pretrial motions — and there were a lot of them — and through the trial, on appeal, all the way to the U.S. Supreme Court. Then when it came time to file the habeas motion, which is basically taking one last gasp for newfound evidence, I was substituted out and he gave it to Mark Vermeulen and the wonderful Ben Rosenfeld, who came in to save the day when the new stuff came out.
The news of Eric’s release seemed very sudden, but this was obviously something you’ve been working on for years. What finally brought it together?
November of 2014 was when prosecutors at the FBI turned over all sorts of documents I had been seeking since 2006. They turned over the documents in 2014, eight years later.
The process of getting those documents must have been extremely frustrating for you.
Yeah, because we went through the lawful means. We asked for it under the law and they’re obligated to give it to me. They said they didn’t exist, so we filed a completely separate request through the Freedom of Information Act and the FBI, on their official letterhead, said it didn’t exist. So I filed a motion with the federal court. The federal judge ordered them to look into the files and see if they existed; they reported back that they did look and they don’t exist.
In the trial, I did everything I could to argue with what I had that there was an improper relationship by this Anna with Mr. McDavid and that she had not rebuffed his romantic advances but had, in fact, encouraged them and that he had expressed reluctance to commit the crime. But the jury was mis-instructed by the judge on the issue of her role as an informant.
That was found to be a “harmless error” on appeal because there wasn’t sufficient evidence in the trial of the romance between Eric and Anna and of his reluctance and questions of her credibility. The 9th Circuit Court of Appeals said, there’s not strong evidence of the romance, there’s not strong evidence that he was reluctant, there’s not strong evidence questioning her credibility, so the conviction stands. Well, if I’d had this evidence the conviction wouldn’t have stood.
Can you talk to me a little bit more about the significance of this new evidence? Is it enough to establish beyond doubt that McDavid was entrapped?
In the criminal case, he doesn’t have to prove anything. The government has to prove that he’s guilty and they have to prove that he wasn’t entrapped. We basically prevailed on that anyway, without this evidence, but with this evidence it’s ludicrous. The appeal would not have been denied, they might have even acquitted him even though the judge instructed them wrongly. The jurors walked out after the verdict, walked right up to the camera and spoke to local news agencies, and said they were embarrassed by the FBI’s conduct in the case and that they found that Anna was very incredible to believe, and they said based on the instruction they’d been given by the judge, they had no other choice but to follow the instructions, which was that she wasn’t an informant.
The new information is a series of letters back and forth between her and Mr. McDavid, which were completely inappropriate for an undercover agent to do. But she had had no training or instruction whatsoever on how to operate appropriately. She’s 18, and she’s doing what she thinks she can do. She engaged in illegal conduct, she encouraged a romance with Mr. McDavid. It took them 16 months to get to the point where they could even make an arrest, and the reason was because they really didn’t want to. They were tumbleweeds, she was herding tumbleweeds. She was herding cats, and one of the ways to keep McDavid tightly affixed to her hip was to keep him in love with her. So the letters are from him to her and her back to him. In fact, in some of them he expressed reluctance about committing this. He wanted to do things outside of activism with her and build a life outside of activism with her.
Because Eric did plead guilty, does that mean you won’t be able to address why the documents were withheld?
Yes. He was required to plead guilty to a lesser crime and required to agree not to sue over what happened to him. What does that say about our justice system? It speaks volumes, and it needs to be fixed because if you were Eric, you would do the same thing. The goal is to win, not to win and look good. If you wanted to continue to press this case, he would clearly spend another three years in prison, I’m sure, and he’s already served nine. If they say, “We’ll let you out, but you have to sign something,” that’s not of his making and that’s not something that he should feel unethical or morally responsible about. He did what he had to do, which is to admit that he engaged in a conspiracy, which has a maximum of five years. He served nine. If you sign on the dotted line, you walk out the door. He’d never been in jail before, let alone in prison federally as a convicted domestic terrorist. He did exactly what he had to do and what he should have done.
What we need to do is put an apparatus in place to check federal law enforcement and the awesome, unbridled power of federal prosecution in cases of national importance like terrorism, to hold them accountable if they don’t play fair. Because otherwise, this will happen over and over and there will be no normative deterrent effect. When the law enforcers don’t follow the law, don’t expect anyone else to.
There needs to be accountability in this case, and it’s not that hard to do that. I know that the local prosecutors and federal prosecutors nationwide would be very unhappy if a defense attorney had been asked for documents that he has to give up, he was then in court told by a judge that he has to give them up, and in both instances he said they don’t exist. And then at trial, he made fun of the prosecution and said, “they refer to these documents that we all know don’t exist” and then the guy gets acquitted and seven years later I just publicly hand out those documents and said I had this the whole time. Well, they’d be screaming that I’d be disbarred. They’d be screaming that that lawyer should be sanctioned. They’d be screaming that justice had been corrupted. That’s exactly what happened in this case, except it was just on the other side of the aisle. It doesn’t mean justice was less corrupted.
I’m wondering why Eric was caught up in this to begin with. Was there ever any indication that he was capable of committing an act of terrorism or any radical act before Anna came into the picture?
There had been none. In fact, she testified in court, and the documents show, that when she met him in August of 2004, she said that he was harmless, he was a college student and he posed no threat in any way. Those were her words and those are the things she testified to about him.
So one of the other things that turned up in the new documents was the fact that the FBI had formally requested that Anna undergo a lie detector test and then canceled that request. What would that have added to the case?
First of all, there’s a lot we don’t know because they’ve held back 900 pages. The results of a polygraph test are not admissible in court, usually. But in large cases, especially a case like this, before the expenditure of funds, the vetting of an informant is extremely important. In 2005, the Office of the Inspector General had issued a very large report to Congress about the FBI and the use of undercover informants. It was highly critical. It found, I believe, in almost 80 percent of cases that serious violations had occurred. That compromises national security in a variety of ways and there had been cases that had compromised national security.
The FBI constantly polygraphs their own employees, they polygraph their receptionists, their security guards who watch outside the building. They constantly polygraph when they have questions. I’m positive it is routine that informants are put on polygraphs in situations like this, and obviously it was scheduled in this case and then for some reason there was an urgency to cancel it. Who knows why.
What’s really important in the case is Anna testified about three different occasions that were really significant. These are things she testified to that the prosecutor used in their closing arguments and zeroed in on. There were statements that Eric supposedly made to Anna when the tape wasn’t running and no one else was around to witness it. So her credibility became paramount. The prosecutor in closing arguments, one of the things they said was, “this case is solely about her credibility.” The FBI had doubts about her credibility, I believe. The jury would then acquit someone at that point, so that’s why it’s really important that that stuff gets to the defense attorney for the trial.
In a 2008 Elle article about the case, you’re quoted as saying, “If this case teaches one lesson, it’s that we are at the point where the government can say whatever the fuck they want. Do whatever the fuck they want. Whatever the fuck they want.” Do you still feel that this shows to be the case?
Yes. Why not? For whatever reason, the smoking gun was delivered and they say, “Well, here’s a smoking gun and it gets you out of prison, no more questions please.” I still think they can say whatever the fuck they want, they can do whatever the fuck they want, whatever they want, because they did. It may not even be the prosecutors in the case, it may be the FBI agents or a federal agency that was involved that did this. That doesn’t mean that there shouldn’t be an examination of what happened. The truth will always make us stronger, always.
We’re now at a slightly different point in history, and eco-activists aren’t seen as as large of a threat as they were in the early 2000s. Is there any reason to believe the FBI is still doing this sort of thing to activists?
I would hope not. But if they do, this case tells them that it’s perfectly OK to do it. So we need a result that tells them it’s not OK to do this and there will be serious consequences.
And is there going to be any way to get that? Or because of the plea agreement are we kind of stuck?
No. Eric personally couldn’t ask for a new trial or do something as a litigant himself in federal court, I don’t think. He might be able to, but I don’t think so right now. The courts, other lawyers, the media, Congress, and the Justice Department, FBI directors — nothing is preventing them, anyone, from asking for accountability and asking for a change.
I want you to know and understand that the way it works in the federal system is that the FBI and the other federal agencies — not the federal prosecutors, but the federal agencies — are very, very well trained and they make the case. They are out in the field, they collect the evidence, then they bring it to the federal prosecutors and say, “Here is what we have, and we ask you to indict this case.” The prosecutor reviews the evidence and then files the indictment and takes over the case. But usually all the evidence is maintained by the case agent, who often has a law degree, who’s been very well-trained on how to present a case for court. The federal agents also are allowed to sit at counsel table with the federal prosecutors. That’s unique. Normally, witnesses are required to be excluded from the court proceedings, so they can’t watch it and shape their testimony if they’re called later on. The rule we’ve developed is that we let the federal agents come to all the court proceedings, and stay in the court proceedings when they’re closed to the public. We allow them to maintain and hold secure the evidence.
So the FBI in this case was present in court when I asked about these exact items, was present in court when the judge ordered they be produced, was present in court when we argued about them in front of the jury, was present in court when the prosecutors mocked me in front of the jury. Think about that. These are writings from the main defendant, the main focus of this million dollar investigation, writings by him on the subject of the crime, sent directly to the FBI. How on earth did they sit through the trial, the pre-trial motions, and were these not turned over? We need to set something up so this doesn’t happen anymore.
