Let’s face it the government hides evidence. Or they lose it. Or they forget to produce it. Or something happens that results in the defense not getting the evidence to which they were legally entitled. Proof of this fact was painfully clear in Sacramento recently.
So-called ‘eco-terrorist’ Eric McDavid was freed after spending more than 9 years in a federal prison. McDavid spent nine years in prison not necessarily because he was guilty, he may not have even done anything wrong. Instead, he spent nine years in prison because even though his defense lawyer requested the exculpatory evidence, even though everyone who knew him didn’t think he was guilty, the FBI failed to produce literally thousands of pages of evidence showing that the snitch likely entrapped McDavid.
What did the snitch do? She basically seduced him. The snitch is known as ‘Anna’ she was an FBI informant trying to work off her own case. The government failed to turn over the love letters McDavid sent to her as well as her responses, promising to consummate their romantic relationship after McDavid engaged in the acts of eco-terrorism in which she was encouraging him to engage. The FBI was so concerned about her credibility that there was an apparently internal government request ‘Anna’ undergo a polygraph examination. That bit of evidence didn’t get produced until years later when appellate lawyers for McDavid sent a FOIA [Freedom of Information Act] request.
The Eastern District’s Chief of the Criminal Division, John Vincent said that the documents had remained in the FBI’s file in Sacramento for years. He said he didn’t know why the documents weren’t turned over. The government contends that even if the documents had been turned over McDavid might still have been convicted. Or not. Maybe he would not have had to spend nine years in prison for a crime that may never have occurred.
There are two problems here: One, McDavid didn’t get the evidence to which he was constitutionally entitled and which very well may have prevented him from spending unnecessary years in prison. Two, the government’s reaction. The defense has been claiming for nearly 10 years that critical evidence wasn’t produced. The government didn’t listen. And they continued not to listen until the defense got lucky, they got the documents in a FOIA. If McDavid’s lawyers hadn’t gotten the documents in a FOIA request McDavid would be spending most of the next decade in prison while he finished about his nearly 20 year sentence.
Now the government claims they don’t know why or how the records weren’t produced in the first place. Prosecutors are quoted in the paper as saying they still think McDavid is guilty. How about a mea culpa? Government prosecutors and FBI agents and every other law enforcement agency need to acknowledge they get stuff wrong. They lose evidence. Sometimes on purpose, sometimes on accident. They indict and sometimes convict innocent people. Frankly the government would have more credibility if they acknowledged their screw-ups, accepted responsibility and ditched the face saving.
