Yesterday, Eric McDavid's attorney, Mark Reichel, filed this Motion asking the Court to issue an order to show cause to prosecutors to explain how and why they withheld critical exculpatory evidence from the defense before trial. TakePart.com, an investigative journalism website, has a lengthy feature on the motion, excerpted below:
McDavid was released in January after serving nine years of a 20-year sentence on federal charges related to an alleged ecoterrorism conspiracy. Documents had emerged, two months earlier, that were absent at his trial, including correspondence supporting his claim that he had been entrapped by an FBI operation involving a paid informant.
U.S. attorneys new to the case had discovered the documents during a search through their predecessors’ file, which they performed in response to a habeas corpus petition challenging the government’s right to hold McDavid. At a court hearing in January, they said the failure to produce the 13 love letters between McDavid and an informant known as Anna—along with almost 3,000 other documents, including an email showing the government had asked to polygraph-test Anna and evidence that she had been coached in the love affair by a Behavioral Analysis Unit—was “inadvertent” and “a mistake.”
Six months later, Reichel was still screaming about the loss—or deliberate withholding—of the documents. He’s a big man, passionate about justice, and he gets worked up: “Who is going to believe they fucking misplaced that shit? I mean, seriously! And then, after he’s convicted nine years later you say, ‘Oh, here they are.’ Do they get that much deference?”
He may soon find out. On July 30, Reichel filed a 28-page motion in federal court in Sacramento asking U.S. District Court Judge Morrison C. England Jr. to order the government to explain itself. The U.S. Attorney’s Office and the FBI would be required to detail how and why the evidence went missing. The motion also asks the judge to “grant such further relief as the Court deems appropriate.” Maybe someone will be punished. Maybe more transparency can be introduced.