In the Huffington Post, Eric McDavid's post-conviction attorney Ben Rosenfeld says his client deserves answers from the feds who kept exculpatory information from McDavid at trial. He questions the government's view that we don't know what happened, but whatever happened must have been inadvertent. (Yeah, isn't that inherently contradictory?) Rosenfeld calls for an official inquiry into what happened and why.
I second that, and many in the defense bar feel the same. Why is it that judges are far more likely to issue an order to show cause to a defense attorney for missing a court appearance or a purported local rules violation than to the prosecution after it is discovered that they failed to disclose exculpatory evidence at trial?
Here are some excerpts from Rosenfeld's piece:
Rather than explain what happened, though, federal officials are trying to skate away with the hollow press statement that "a mistake was made." They contend they promptly turned over the missing documents upon discovering them, and that they were not important to the defense anyway. Both claims are patently untrue.
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Contrary to the government's public relations spin, the documents it withheld were central to Mr. McDavid's entrapment defense. Clearly, the government recognizes their importance too or it would not have negotiated McDavid's release. They include love letters to Anna, and evidence she pretended to reciprocate his feelings to keep him on the hook, writing to him, for example, "I think you and I could be great, but we have LOTS of little kinks to work out," and, "I hope in Indiana we can spend more quality time together, and really chat about life and our things."
The government's repeated insistence that it simply overlooked this correspondence strains credulity. Correspondence between an informant and a target is rudimentary evidence in a criminal case. Mr. McDavid's trial attorney Mark Reichel made it a centerpiece of his cross-examination of the informant, getting her to admit only grudgingly that McDavid had sent her romantic epistles, which she downplayed as containing only a "slight indication that he might have been interested in me." In point of fact, he opened his heart to her, declaring, for example, "all the endorphins shoot off in my head when ever I think of u." Prosecutors did nothing to correct the informant's misleading testimony.
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Prosecutors kept up the charade well after Mr. McDavid filed his habeas petition. . . . : "Although McDavid insinuated throughout the trial that there was a romantic relationship between himself and Anna, the evidence was to the contrary."
In the meantime, Mr. McDavid sat in prison for two more years. The government also withheld evidence that the FBI ordered, then mysteriously canceled, a polygraph examination of Anna the informant, suggesting both that the FBI had doubts about her credibility and that it wanted to bury those doubts at a critical junction in the case, just before Anna roped all of the co-defendants together from around the country for a meeting at Mr. McDavid's house. It was at that meeting, the government alleged, that the group agreed to do something.
Like the missing correspondence, the polygraph order remained concealed throughout trial. It surfaced only in response to a Freedom of Information Act request which McDavid's supporters submitted 2-3 years after his conviction. In response, the government produced roughly 2,500 heavily reacted pages while holding back nearly 900 others on various grounds. Among the items redacted in the polygraph order is the mere name of the Assistant U.S. Attorney who signed off on it, concealed for alleged privacy reasons.
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The U.S. Attorney is correct about one thing: As a condition for being released from prison, Mr. McDavid pleaded guilty to a new felony charge of general conspiracy which carries a maximum penalty of five years in prison, half the time he had already served. But if McDavid was entrapped, as the evidence overwhelmingly shows, he is in a real sense innocent. Before the FBI fastened Anna the informant onto him and pursued him relentlessly with dirty tricks, he had no predisposition whatsoever to commit the charged offense. Whatever conspiracy he may have joined was a pure artifice of the FBI's and Anna's from the start.
The U.S. Attorneys who negotiated Mr. McDavid's release are not responsible for his entrapment or unfair prosecution. They inherited the case after the fact and acted honorably by helping to correct a grievous injustice. But they need to stop vouching for their predecessors and start conducting an inquiry. Ninth Circuit Chief Judge Alex Kozinski recently warned of "an epidemic of Brady [evidence withholding] violations abroad in the land." Unless and until prosecutors explain their so-called mistake, the public should doubt that's all it was.