Eric McDavid Update - 10.4.07

Dear friends,

First we would like to express our heartfelt thanks to everyone who has sent us messages of support since the verdict was issued last week. We have not been able to respond to all of you, but please know that we read them all and have been very moved by the outpouring of support, and we always pass your words of encouragement on to Eric. This has been a difficult time for us, but we’ve been wanting very much to communicate with you our thoughts and feelings about the trial, the verdict, and what happens next. We’ll do our best in the lines below…

Trial and Lies

Eric’s trial was fraught with lies, slander, and calculated statements to hurt Eric and the people he loves. This should serve as a sad reminder to us all that we should never believe statements made in the media or by the government unless we know through our own experience their truthfulness. Perhaps the most egregious lies told about Eric were that he threatened to kill Anna if she was a cop and that she woke one night to find Eric waving a knife over her. Both of these statements were made without any supporting evidence – only the testimony of an admitted liar who was paid thousands of dollars to entrap Eric and send him to prison. The first statement was allegedly made by Eric in a car ride – there are no recordings of it. The second incident allegedly happened in a cabin that was completely wired with audio and video recording devices. Despite Mark’s repeated attempts to secure some recorded evidence of this incident, the government was never able to produce it. There were no written reports from the FBI or Anna anywhere in the thousands of pages of discovery that the government handed over. Anna testified that she fell right back to sleep after this occurred – clearly not what any of us would do if someone had been waving a knife over our sleeping bodies. Additionally, Lauren testified Eric would have had to climb over her to get out of bed, and that never happened. This is merely an example of the great lengths to which the government went to demonize Eric since his arrest.

The list of lies told about Eric during trial is far too extensive to detail here. If you are interested in knowing more, we suggest that you read through the trial reports which are posted on Eric’s website (www.supporteric.org). Often the lies told seemed meaningless and inconsequential, unless taken in a larger context. For example, at one point Zachary Jenson testified that Eric had a cell phone. This is unequivocally false – in fact, Judge England denied Eric bail, using the fact that he did NOT have a cell phone as an argument to claim Eric did not have strong family ties. Taken in the context of trial as a whole, the lies told about Eric were overwhelming and outrageous.

The Verdict

The verdict was issued on Thursday, September 27 around 3:30 pm. The jury had been deliberating for two days, and seemed to be asking questions that pointed to a positive outcome for Eric. One of those questions, and the Judge's subsequent answer, radically altered the outcome of Eric's trial. Before deliberating the jurors received the following instructions on entrapment:
The government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped. The government must prove the following:

1. the defendant was predisposed to commit the crime before being contacted by government agents, or

2. the defendant was not induced by the government agents to commit the crime.

Where a person, independent of and before government contact, is predisposed to commit the crime, it is not entrapment if government agents merely provide an opportunity to commit the crime.

After deliberating for a while the Jury asked Judge England when was the “first contact” between Anna (the government agent) and Eric (the defendant). The Jury asked this so they could find the relevant time period for determining whether or not Eric was predisposed to commit the crime. Before replying, Judge England heard arguments from the government and the defense about how he should respond to the Jury. The government argued that “first contact” was June of 2005 when they allege the conspiracy began. Mark argued that “first contact” was in August of 2004 when Eric first had contact with Anna while she was working as a confidential informant investigating the crimethinc convergence in Des Moines for the FBI. The Judge sided with the government, but stated that he could not instruct the jury on a specific date because that was a determination of fact that the Jury was supposed to make. Judge England gave the Jury the instruction that “first contact is the first time that the defendant and the informant discuss the crime that the defendant is on trial for.” This instruction blatantly contradicts established caselaw which says:

“Quite obviously, by the time a defendant actually commits the crime, he will have become disposed to do so. However, the relevant time frame for assesing a defendant's disposition comes before he has any contact with government agents, which is doubtless why it is called predisposition.” (US vs. Poehlman)

Though this issue of timing may seem like a legal technicality, it is in fact hugely significant. When Anna met Eric in August of 2004 she sent a report to the FBI saying that he was not a person of interest, meaning in her eyes he was not predisposed at the time. It was only later, in the summer of 2005, that she suggests he was predisposed to commit the crime. This is the point from which the government wanted the Jury to look at Eric's predispostion - after he had been under the influence of Anna, and the FBI by proxy, for almost a year.

After the jury issued their verdict, Mark conducted informal jury interviews and it became clear how pivotal these instructions were in the jury’s decision to convict. All twelve jurors told Mark they would have acquitted Eric if they had been instructed that “first contact” meant August of 2004, when Eric and Anna first met. The jurors told Mark very
openly and clearly that there was a lot of crying in the jury room because they did not want to convict Eric, but that they felt totally obligated to do so once they were instructed that the only relevant time period for evidence was after Eric agreed to the conspiracy with Anna. When Mark told them what his view of the law was, they all agreed they would have acquitted in an hour after the deliberations had begun on Tuesday. One of the
jurors was so emotional she could not stay and talk, but when leaving, went right up to the TV News 10 cameraman and gave an on air live interview (which was shown repeatedly on tv) where she stated that the FBI should be embarrassed of themselves for what they did in this case, that they should be ashamed, but they had found that Eric was predisposed based upon the law they received. The majority of the jurors said that they thought Anna was a liar and they didn’t believe anything she said unless it was on tape. They were disgusted and appalled at the FBI, and told them so to their faces.

While all of this is validating for Eric and his case, it’s maddening to know how close Eric came to being acquitted. It was clear during the reading of the verdict that a number of the jurors were unsettled by the decision they made and a couple of them started crying.

Another instruction that could have had a significant impact on Eric's case, which Judge England denied, was the jury instruction regarding a lesser-included offense. This would have allowed the jury to find Eric guilty of the same charge to which Lauren and Zach pled guilty, which carries a maximum sentence of 5 years, instead of the 20 that Eric is now facing.

Sentencing

Eric’s sentencing has been set for 9 am on December 6 at 501 I Street, 15th floor, Courtroom 3. The same judge who presided over Eric’s trial will also be sentencing him. The charge he has been convicted of carries a sentence of 5-20 years, and the US Attorney has indicated in the press that the government will be seeking the maximum 20 years. From the beginning, the government has also indicated that they will pursue the Terrorism Enhancement. We are asking for everyone who can to please come to court on this day to offer Eric your support, as this will be a very difficult day for him.

What Next

Eric will be appealing his conviction in this case. Based on our conversations with Mark and other lawyers, it appears he has a very good chance for success on appeal. Unfortunately, the process of appeals will take at least a year, and Eric will be sent to a federal prison facility during that time. Please see below for ways you can help.

How You Can Help

Fundraising: The struggle for Eric’s freedom is far from over. But to appeal his conviction will not be cheap – we need everyone’s help with fundraising, as soon as possible. We cannot stress this point enough. Please start planning now for your next event to support Eric. Stay tuned for updates about how much money we will need and how you can contribute. And remember, you can always donate money online at www.supporteric.org through paypal.

Letters: Please continue sending Eric letters of support. You can get information on how to write Eric at www.supporteric.org

Vegan Meals: Eric is still not receiving vegan food from the jail. He has been purchasing what little vegan food he can get from commissary, which allows him a minimal amount of nutrition to supplement the bread and fruit he can pull from his meal trays. But this is not sufficient for Eric to remain healthy. Please continue to call the jail until they resume giving Eric food he can eat. The jail fed Eric vegan meals for 15 months – there is absolutely no reason they cannot continue. You can call them at: 916-874-6752 or 916-874-6905 . Please have Eric’s x-reference number ready, in case they ask for it (x-ref 2972521), and be prepared to wait through lengthy holds and a lot of ringing. And remember, this is one of THE most important things we can do for Eric right now.

Eric’s Birthday

Eric’s birthday is this Sunday, October 7. Please send him a card, a letter, a poem, a beautiful picture – anything to help brighten his day.

T-Shirts

Thanks to some great folks in New York (and the fellow who designed them!), Support Eric shirts will soon be available for purchase online. Please stay tuned for details, or check the website for ordering info (it should be up soon). Money from these shirts will go to Eric's legal defense.


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 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 tremendous obstacles - and to infuse every moment with joy and love. After the jury delivered their verdict, as Eric was leaving the courtroom he turned to all of us sitting behind him, a look of concern on his face, and reminded us all: “Breathe.....”

Let's all keep breathing...and keep fighting.