[Pnews] Hundreds are serving decades in prison for crimes that never happened - Role of FBI informant in eco-terrorism case

Prisoner News ppnews at freedomarchives.org
Tue Jan 13 15:19:20 EST 2015


  Role of FBI informant in eco-terrorism case probed after documents
  hint at entrapment

In the case of Eric McDavid, alleged to be ring-leader of eco-terrorist 
cell, ‘game-changing’ documents seen exclusively by the Guardian show 
informant might have entrapped him

Ed Pilkington <http://www.theguardian.com/profile/edpilkington> in New York
*http://www.theguardian.com/us-news/2015/jan/13/fbi-informant-anna-eric-mcdavid-eco-terrorism*

Tuesday 13 January 2015 15.01 EST

<http://twitter.com/@edpilkington>

On the surface, she blended in very well. With a skull tattooed on her 
shoulder, a black-and-white /keffiyeh/ around her neck, a shock of 
bright pink hair and her standard-issue dress of camouflage skirt and 
heavy boots, the energetic 17-year-old looked every bit the radical 
eco-activist she worked so hard to imitate.

But “Anna”, as she called herself, was no ordinary eco-protester. 
Really, she wasn’t one at all. She was an FBI 
<http://www.theguardian.com/us-news/fbi> informant under instructions to 
infiltrate fringe green groups and anti-capitalist networks and report 
back on their activities to the US government.

Now “Anna”, in her role at the center of a high-profile prosecution of 
alleged eco-terrorists in 2006-7, has been put under the spotlight 
following the embarrassing admission by the US department of justice 
that it failed to disclose crucial documents to defense attorneys at trial.

On Thursday, Eric McDavid, a radical green activist aged 37, was allowed 
to walk free after having served nine years of a 19-year federal prison 
sentence. Prosecutors had alleged that he was the ring-leader in a small 
cell of eco-terrorists connected to the Earth Liberation Front (ELF) 
conspiring to bomb the Nimbus Dam in California, cell phone towers, 
science labs and other targets.

Last week’s dramatic scenes 
<http://www.sacbee.com/news/local/crime/article5641188.html> in a 
courtroom in Sacramento, California, have focused attention on the FBI’s 
use of undercover informants and prompted claims that the agency lured 
unsuspecting activists into criminal activity through blatant entrapment.

But last November, the US attorney’s office in the eastern district of 
California admitted that it had “inadvertently” failed to disclose 
numerous documents that went to the very heart of the case. Crucially, 
those previously undisclosed files included correspondence between 
“Anna” and McDavid that suggests that, far from being the neutral 
intelligence-gatherer portrayed by prosecutors, she might have entrapped 
her prey by encouraging him to behave conspiratorially in the hope of 
romantic fulfillment.


    ‘I think you and I could be great’

Among the files are a letter and 10 emails written by McDavid to the 
teenaged woman he thought at the time to be his friend, peer and 
potential sexual partner. The writings have been seen by the Guardian 
and extracts of them are published here for the first time.

In the letter, McDavid declared his love for “Anna”, though he coyly 
added that he was not sure whether his feelings for her amounted to 
“just infatuation, a crush, or whatever box anybody has for this 
emotion”. Scrawled diagonally across the page in spindly script, his 
words expressed the trepidation of someone unused to venting openly his 
emotions. He feared that unless he shared his feelings, they would “eat 
me from the inside out”.

“I hope that my forwardness w/expressing all this doesn’t scare the shit 
out of u,” he wrote, “cause I know if I got this letter I’d probably 
trip out a bit, to say the least …” Having opened his heart, he blurted 
out with palpable relief: “Fuck that feels soooooo much better.”

At McDavid’s 2006 trial, his defense team presented evidence to the jury 
that McDavid had fallen in love with the woman who would turn out to be 
his downfall. What wasn’t known at that time, and what is revealed by 
the newly-disclosed documents, was that “Anna”, in her guise as a fellow 
radical, clearly reciprocated.

In an email dated 27 June 2005, six months before McDavid’s arrest, 
“Anna” responded explicitly to his previous amorous advances. She said: 
“I think you and I could be great, but we have LOTS of little kinks to 
work out.” She went on to say: “I hope in Indiana we can spend more 
quality time together, and really chat about life and our things.”

The tone of romantic encouragement in the email had an immediate impact 
on McDavid. He replied three days later, using the ungrammatical 
language of texting: “hey cheeka, so far as us B’n great, that i think 
is an understatement… along w/the ‘LOTS of little kinks 2 wk out’… but 
if u aint learning, u aint live’n… & I do think we could learn a lot 
from each other.”

In subsequent emails, McDavid continued to express his feelings for her, 
sending her “big hugs” and saying “miss you much”. Only one of “Anna’s” 
replies to McDavid is included among the new batch of documents 
disclosed after so many years. In it she wrote intimately about her 
hair-style: “I took out the braids. : ( They were hurting my head SO 
BADLY by the last night in philly that I was just getting pissy. I’ll do 
it again, but I think I want the loose pink hair, like I told you about; 
and I can DIY that. But pain isn’t worth that much – besides, identity 
is so fluid… but that’s another convo, hopefully for IN. : )”

The tone is almost flirtatious. McDavid evidently took it to be such, 
because he replied: “sad & glad 2 hear about the braids, glad 2 hear 
they Rn’t hurting u’r head anymore, sad 2 c them gone… they were pretty 
damn cute, & that princess laya thing was 2 hot (inside shiver)”.


    McDavid’s treatment: ‘no fair’ or an ‘inadvertent mistake’?

It took McDavid’s defense team and his large band of devoted supporters 
seven years after he was sentenced to extract from the justice 
department those 11 precious documents. They were finally released on 6 
November last year, fully two years after reference was made to their 
existence in a court declaration 
<https://www.documentcloud.org/documents/1401154-nasson-says-polygraph-never-happened.html#document/p7/a196749> 
by “Anna’s” FBI handler, special agent Nasson Walker. That two-year 
delay alone belies the assurance made by the US attorney’s office in 
Sacramento to the New York Times 
<http://www.nytimes.com/2015/01/09/us/man-convicted-of-environmental-terrorism-wins-early-release.html?_r=0> 
after last week’s hearing that “the documents were produced to the 
defendant promptly after their discovery.”

At the hearing, federal judge Morrison England expressed astonishment 
and dismay that such game-changing documents had not been shown to the 
defense at the 10-day trial over which he had presided in 2007. “I’ve 
never heard or seen anything like this,” he said, adding that McDavid’s 
treatment was “not fair”.

The judge demanded to be told how such a flagrant breach of disclosure – 
under the 14th amendment of the US constitution, the prosecution must 
turn over potentially exculpatory evidence to the defense – could have 
occurred: “This is huge. This is something that needs to be dealt with, 
and I want to know what happened.”

McDavid’s current lawyers, Mark Vermeulen and Ben Rosenfeld, said the 
documents they battled for years to wrestle from US prosecutors would 
have transformed the trial had they been available at the time. “If the 
defence had the evidence it has now – that ‘Anna’ encouraged Eric’s 
romantic advances, leading him to believe that sexual fulfillment would 
be conditional on him following her plans - that would have confirmed in 
the jury’s mind that she entrapped him. He would have been acquitted, 
it’s as simple as that,” Rosenfeld told the Guardian.

The justice department continues to insist it was all an “inadvertent” 
mistake. But that narrative does not cut it for McDavid’s legal team and 
supporters. “They took nine years of Eric’s life away from him and they 
shouldn’t be able to gloss over that with a press release – there needs 
to be a detailed explanation,” Rosenfeld said.

Concerns raised by the McDavid case about the use of undercover 
informants will resonate today given the FBI’s continued reliance upon 
infiltration as a major plank of its counter-terrorism strategy. Its 
paid moles, especially those planted within Muslim communities in the 
wake of 9/11, are regularly accused 
<http://www.theguardian.com/world/2011/nov/16/fbi-entrapment-fake-terror-plots> 
of crossing the line from observation into entrapment.

Rosenfeld said that McDavid’s story was a warning for today’s justice 
system: “When people see the TV news and hear of the latest foiled 
terrorist outrage they think ‘Wow! The FBI is so good at its job.’ But 
so many of these apparent plots are complete inventions of the 
government in the first place – they are creating and then solving their 
own conspiracies.”


    ‘I wanted to get a conversation going with everyone’

Throughout almost a decade of legal wrangling over the McDavid case, the 
mysterious “Anna” has been a constant factor. In her only known 
interview, for a 2008 article in Elle magazine 
<http://www.foodnotbombs.net/elle_anna.pdf>, she posed for photographs 
in her normal outfit of jeans, T-shirt and suede jacket, her hair by 
then faded from lurid pink to its natural brown.

She told the magazine that 9/11 had motivated her to engage in 
counter-intelligence. A year after the attacks, when she was just 15, 
she contacted the Militarywomen.org website to inquire about enlisting 
in the Army.

At a community college night class in Miami she tried to impress her 
professor by sneaking into a meeting of anti-free trade protesters for 
what she called “anthropological observation”. The report she presented 
to class so struck a police officer who was also taking the course that 
he passed her details to the Miami police department, which in turn 
quickly recommended her to the FBI.

Within months, she was going undercover among protesters at the G8 
summit of leading economic powers in Atlanta. Over the next two years 
she was given more than 10 federal assignments, including infiltrating 
protest groups at the Democratic and Republican National Conventions in 
Boston and New York respectively, and delving into the world of radical 
environmental activism.

At the G8 she met an anarchist named Zach Jenson, and through him fellow 
eco-activists Lauren Weiner and McDavid who she first met in 2004. All 
three were eventually arrested, though Jenson and Weiner cut a deal with 
prosecutors in which they gave evidence against their co-defendant in 
exchange for a lesser sentence.

“Anna” told the jury at McDavid’s trial that she had been scrupulously 
impartial, sticking closely to legal guidelines for informants that 
forbade her from playing a leadership position in the group or from 
pushing anybody to do anything. Yet under cross-examination 
<https://www.documentcloud.org/documents/1501598-mcdavid-tx-anna-9-12-07-em.html>, 
she described some of the proactive steps she took to bring the “cell” 
together.

She bought plane tickets for Weiner to fly her to McDavid’s house for a 
group meeting. “I wanted to get a conversation going between everyone,” 
she said.

Later, she drove Weiner and Jenson across the country to meet McDavid, 
using a ’96 Chevrolet paid for by the FBI and kitted out with recording 
equipment. When Weiner showed signs of losing enthusiasm for the 
project, “Anna” sent her an email saying: “There’s no going back… I 
don’t want to be dilly-dallying around forever, which I know I could do 
and fall into that trap but I want to avoid you doing that too.”

In email correspondence that is included in the newly-disclosed 
documents seen by the Guardian, “Anna” wrote to Weiner in September 
2005, telling her “I’ve made some more contacts in Philly, esp with the 
animal liberation movement, which I’d like to bring you and the rest of 
teh (sic) crew more into. I already talked a little bit about it with 
[McDavid] - we could make a big difference on multiple fronts.”

In a later email, also to Weiner, she said: “I’d love to start helping 
you and the rest of the Philly kids in whatever your hearts find to do.”

The FBI also paid for a cabin in Dutch Flat, California, heavily rigged 
with surveillance devices, where “Anna” assembled the group, telling 
them she’d earned the rent money working as a dancer-cum-escort. There 
she presented the others with a “burn book” containing six recipes for 
concocting firebombs, though she told the jury the devices were designed 
by the FBI to be duds.


    ‘The government owes it to Eric – to tell the truth’

As these final planning meetings for a potential attack on a science lab 
were taking place, the FBI appeared to grow jittery about an operation 
that depended entirely on “Anna”. In November 2005, just weeks before 
the three activists were arrested at the cabin, a formal request was 
made to subject her to a lie-detector test.

The request form 
<https://www.documentcloud.org/documents/1476820-mcdavid-polygraph-pages.html> 
says the purpose of the polygraph would be to “confirm veracity of 
[“Anna’s”] reporting prior to the expenditure of substantial efforts and 
money based on source’s reporting.”

The polygraph was disclosed to McDavid’s defence team under freedom of 
information laws in 2012, five years after the trial. A small, but 
potentially significant, footnote to the request form 
<https://www.documentcloud.org/documents/1476820-mcdavid-polygraph-pages.html#document/p2/a196829> 
reveals that a senior federal prosecutor (AUSA) approved the test, 
though the identity of the official is redacted on grounds of “personal 
privacy”.

The emergence of the polygraph test, and of the romantically-tinged 
correspondence, has incensed Mark Reichel who acted as McDavid’s lawyer 
at trial. He tried to mount an entrapment defense, having been told by 
his client of “Anna’s” amorous behavior, but was ultimately stymied by 
lack of evidence.

Before the trial began Reichel filed a motion to dismiss the case on 
grounds of an improper romance between informant and defendant. In it 
<https://www.documentcloud.org/documents/1501596-mcdavid-0129-motion-to-dismiss.html#document/p4/a196830>, 
he accused “Anna” of having “encouraged and urged him on, to write love 
letters and emails to her”. The US government’s response to the motion 
<https://www.documentcloud.org/documents/1501597-0169-govt-2007-response-mtd.html#document/p36/a196831> 
left no room for doubt: “The defendant’s claim of a romantic 
relationship between him and the informant is categorically untrue”.

“I demanded to see the love letters before the trial, but the government 
told me they didn’t exist,” Reichel said. “They wanted the world to see 
they had captured a member of ELF. He was innocent, they knew that, but 
they couldn’t let it be seen.”

The revelation of the newly-disclosed documents is likely to prompt a 
flurry of litigation. Jeffrey Weiner, Lauren Weiner’s attorney (and 
cousin), told the Guardian that he was considering legal action to have 
her federal conviction lifted.

He said that “Anna” had encouraged a strong and intimate personal 
relationship with Lauren that was “so intense and continuous she 
literally took over Lauren’s will. ‘Anna’ chose the most gullible people 
that she could find and stopped at nothing to persuade them to commit 
criminal acts. I’m not saying my client did nothing, but her crime was 
created by the US government.”

For McDavid, too, this story is not at an end. As part of his release 
deal, he pleaded guilty to a single conspiracy charge with a terrorism 
enhancement attached, meaning that although he is a free man he will 
continue to labor under the stigma of a serious federal conviction.

Nor is the full extent of the official deception yet known. In 2010 the 
justice department released 2,500 pages relating to the case under 
freedom of information rules, but it refused to hand over a further 900 
pages. What nuggets of information those pages contain, particularly 
among “Anna’s” replies to McDavid’s emails – most of which remain hidden 
– only the US government knows.

McDavid’s current partner, Jenny Esquivel, who has been a leading member 
of his support group <http://supporteric.org/>, said she feared the 
remaining documents would never see the light of day. “The government 
keeps trying to frame this as a mistake, but they are the only people 
who knows what happened and they owe it to the American people – and to 
Eric – to tell the truth.”

She said that in the five days of freedom he has enjoyed, McDavid has 
reveled in being reunited with his family and spending time with his two 
nieces, both of whom were born while he was in prison. “The girls were 
overjoyed when they heard the news that he was coming home. It was 
almost impossible to pull them away from him while they were here,” she 
said.

Amid his joy, McDavid hasn’t lost sight, Esquivel said, of those who 
remain in the clutches of FBI entrapment. “The travesty is that so many 
people are dealing right now with exactly the same problem. Hundreds are 
serving decades in prison for crimes that never happened.”

-- 
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org
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