Salon.com today has an interview with Eric McDavid's trial attorney Mark Reichel in a piece entitled, "They can do whatever the f*** they want: Inside the FBI's disturbing quest for domestic terrorists," excerpted below:
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.
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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.
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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.
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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.