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The Eric McDavid Story
Originally published in the EarthFirst! Journal, Samhain/Yule 2007
Weiner began talking to the FBI a week after her arrest and was released on $1.2-million bail. Six months later, having previously been denied bail twice as an alleged public danger and flight risk, Jenson agreed to cooperate and was released on $40,000 bail. Eric was denied bail twice and remained in jail, struggling for vegan meals. After four months of pressure from supporters and a two-week hunger strike, he was finally able to gain access to vegan food—but a week before trial, the jail cut off his vegan meals once again, in an apparent attempt to weaken him. He has not received vegan food since that time. Eric has been in solitary confinement since his arrest.
After months of delays, Eric’s trial finally began on September 10. The trial was fraught with clearly biased and improper rulings, and lies were rampant.
The trial opened with the government’s star witness: cooperating witness “Anna,” a young woman who was paid $65,000 by the FBI to befriend and entrap Eric and his codefendants. Anna, who was 17 at the time she began working for the FBI, admitted repeatedly during her testimony that she was a liar. At one point Eric’s attorney, Mark Reichel, said to her, “All lies, all the time, 24-7 would be the ad in the phonebook, right?”
“When I was undercover, in my role, correct,” she responded.
Despite the government’s best attempts to obscure the truth, Anna’s testimony proved that she was the driving force behind the “conspiracy” and that without her and her FBI masters, it never could have happened.
The other two key witnesses for the government were Eric’s former codefendants, both of whom admitted that they had agreed to cooperate because of the “75-percent-off sale,” as Reichel dubbed it—the 75 percent reduction in prison time they were promised in exchange for cooperating. They also both stated that their sentencing had been delayed until after Eric’s trial so that the government could see how they performed first. Weiner seemed visibly shaken throughout her testimony. She also seemed relieved, when Reichel cross-examined her, to finally have the opportunity to speak something more closely resembling the truth. This was not the case with Jenson, who behaved like a trained monkey.
After six full days in court, the jury left the courtroom, and both sides began to argue over the instructions that the jury would receive. These instructions would guide the members of the jury in making their decision about Eric’s innocence or guilt, but the judge issued devastatingly incorrect instructions. The first blow came when the judge denied the inclusion of the “lesser included offense” instruction. This instruction would have allowed the jury to find Eric not guilty of the crime he was charged with, but guilty of the charge that Weiner and Jenson had pleaded to. While this clearly would not have been an outstanding victory, if Eric had been found guilty only of the lesser offense, it would have capped his sentence at five years, instead of 20.
The other huge point of contention in the jury instructions was the definition of “predisposition.” For the government to prove beyond a reasonable doubt that a defendant was not entrapped (and is therefore guilty), it first must prove that the defendant was inclined to commit a crime prior to contact with a government agent—in this case, Anna. After a series of intense arguments, the judge instructed the jury to examine the question of predisposition beginning in June 2005—the moment at which the government claimed the conspiracy began, and almost a year after Eric and Anna had met and remained in contact. This ruling was in clear defiance of not only logical reasoning, but also of case law, which says: “Quite obviously, by the time a defendant actually commits the crime, he (sic) will have become disposed to do so.... The relevant time frame for assessing a defendant’s disposition comes before he has any contact with government agents, which is doubtless why it is called predisposition (US v. Poehlman).”
Armed with a set of faulty instructions, the jury returned after two days of deliberation with a guilty verdict.
After the delivery of the verdict on September 27, Reichel conducted informal interviews with members of the jury. Here is a rundown of what they had to say:
•They wanted to acquit Eric, but felt that they could not because of the instruction the judge had given them about “first contact” and “predisposition.”
•They thought that Anna was despicable, and they didn’t believe a word she said unless it was on tape.
•They were appalled at the behavior of the FBI and told the agents so to their faces.
While much of this information is validating for Eric and his case, it’s also maddening to know that Eric would be free today if not for one jury instruction. However, this bodes well for Eric’s chances of appeal, which will be the next step in his struggle for freedom. Unfortunately, this process will take at least a year, and Eric will remain imprisoned in the meantime.
Lies, Lies, Lies
Not surprisingly, the media and the government have made a number of inaccurate and misleading statements about Eric and his case. Perhaps the two most egregious lies made during the trial were that Eric threatened to kill Anna if she was a cop and that she awoke one night with him waving a knife over her. There was absolutely no evidence to support either of these claims, other than the word of an admitted professional liar. During the time that the second incident was alleged to have happened, Eric and Anna were in a cabin completely wired with video and audio surveillance. Yet despite repeated requests from Reichel, the government never produced any documentary evidence. When Anna told this story during her testimony (after a lunch break, after it was clear that the government was grasping at straws), Reichel asked her if she had gone right back to sleep after the alleged incident, and she said yes. If you wake up with someone waving a knife over you, do you fall right back asleep? Both of these outrageously slanderous statements were clearly meant to smear Eric in front of the jury.
After the trial, US Attorney McGregor Scott was quoted as saying, “Can you imagine what would happen if they succeeded in blowing up Nimbus Dam? It would make New Orleans look like a Sunday pancake breakfast.” But both Weiner and Jenson testified that Nimbus Dam was not a target at the time of the group’s arrest in January.
The list of falsehoods, hyperbole and fear-mongering statements made by the government over the last two years is far too extensive to detail here. The bottom line is that the government has no qualms about spouting off the most malicious of lies in its desperate pursuit to convict innocent people.
A Bit of Context
Eric was arrested amidst the whirlwind government crackdown on radical environmentalists known as the “Green Scare.” What sets Eric’s case apart from the majority of these others, however, is that Eric was not actually charged with carrying out a crime—rather, he was charged with “conspiracy” to commit one. In essence, Eric was pursued and arrested for “thought crime.” Nothing makes this more clear than the prosecution’s non-ironic invocation of association with CrimethInc. as proof of in itself of criminality. It is unclear whether the prosecutors are aware that the word they constantly uttered has the same Orwellian roots as the case itself.
A quick glance at the criminal complaint against Eric and his former co-defendants (which can be viewed on his web site) reveals the extent to which the charges against him stemmed from the state’s targeting of certain lifestyles and political beliefs. The 15-page complaint uses the words “anarchist,” “anarchy” or “anarchism” 26 times and makes multiple references to CrimethInc., train-hopping and hitchhiking while tracing Eric’s path across the country to various political protests and gatherings. The focus on anarchism and political thought extended into trial, with a rather heavy focus on the works of one author, Derrick Jensen. At one point, the prosecutor actually confused Derrick Jensen with co-defendant Zachary Jenson and claimed that the author had visited Zach’s mom in Tennessee over the Winter! Derrick Jensen was probably mentioned in the trial more than anyone other than Eric and his co-defendants.
This case makes it clear how far the government is willing to go to spy on and repress people based on their politics and lifestyle. Eric met Anna in August 2004 and the two remained in contact after that time. It was made clear during trial that Eric had fallen in love with Anna and that she used his feelings to keep him hooked and, eventually, to entrap him. Anna manufactured this “crime” by providing the means for it to occur and by manipulating the three into doing things that would allow her employers to arrest and prosecute them. She constantly pushed and cajoled Eric, Weiner and Jenson when they showed resistance to her plans. She paid for their entire existence—the cabin they lived in, their travel across the country, the car they used, the computers they used (which the FBI later confiscated), groceries and supplies. Weiner testified that Anna pulled $100 bills out of her pocket and gave them to Eric so that he could purchase groceries and supplies—leading to Anna’s outlandish statements during trial that the money the group used came from Eric and Lauren’s pockets!
Eric was not released on bail because the government said that he train-hopped, hitchhiked and “lived off the land.” The most the government had to say about Eric’s predisposition is that he read an interview of Derrick Jensen and shared it with others. This case is clearly meant to terrify people who are seeking a way to be free in their minds and in their lives—to get them to police themselves and each other in order to avoid persecution.
Eric’s struggle is far from over. He is committed to continuing his fight against these charges through the appeals process. Due to the many legal errors made by the judge during Eric’s trial and to the response from the jurors during the informal interviews, we remain positive about Eric’s chances for appeal.
But this will not be an easy battle. Much work needs to be done in preparation, and Eric needs support now more than ever. There are a number of things that you can do to help Eric make it through his coming months in prison and actualize his freedom. First of all, appeals are not cheap. Unfortunately, we will need to raise many thousands of dollars to cover Eric’s legal fees. We need everyone’s help with this—please start working on fundraisers now and visit Eric’s web site to make a donation online.
Second, Eric is still without vegan meals. Please call the jail and request that they resume feeding him meals he can eat.
Third, Eric’s sentencing is scheduled for December 6. We would love to see the courtroom full of supporters for Eric on that day. Eric is facing 20 years in prison, and the government has indicated that it will be pushing for the maximum time. The government also continues to dangle the threat of a terrorism sentencing enhancement over his head.
Finally, please take a few minutes and write Eric a letter of support. Hearing from everyone around the world who keeps him in their hearts and minds helps keep Eric going day to day.
Eric is an amazing individual. Those of you who know him know how compassionate and caring he is—how full of integrity and courage he is, and how he embodies these qualities in his day-to-day life. Eric has taught us all so much, especially in these last two years. Most of all, he’s taught us what it means to choose life—to keep pushing forward and doing what’s right, despite substantial obstacles, and to infuse every moment with joy and love. After the jury delivered its verdict, Eric turned to all of us sitting behind him as he was leaving the courtroom, a look of concern on his face, and reminded us all: “Breathe....”
Let’s all keep breathing... and keep fighting.
For more information, contact sacprisonersupportriseup.net; www.supporteric.org.
Send letters of support to Eric McDavid, X-2972521 4E231A, Sacramento County Main Jail, 651 I Street, Sacramento, CA 95814.
Sacramento Prisoner Support is based in Sacramento, California, and has been doing support work for Eric McDavid since his arrest in January 2006.
photos courtesy Sacramento Prisoner Support