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Important Eric McDavid Update

by Sacramento Prisoner Support Wednesday, Dec. 15, 2010 at 6:50 AM

Eric's petition for a rehearing en banc has been denied

Dear friends,

On Wednesday, December 8, the 9th circuit court of appeals denied Eric's request for a rehearing en banc. This means, in theory, that 11 judges reviewed Eric's petition for a rehearing and not a single one of them found any merit in the arguments detailed within. After nearly 5 years of political maneuvering on the part of the government and a complete and total lack of any sanity or logic in the court's decisions, this came as no surprise to Eric and his loved ones.

However, that fact does not lessen the blow of this cruel decision by the 9th circuit. This was, in effect, Eric's last available option in the appeals process (other than appealing to the extremely conservative supreme court). Hope has proven to be a fleeting, evasive creature throughout this whole process. Many of us knew better than to fall for its seductive overtures. But hearts are so often blind to what our minds know to be truth – even when we knew what the outcome would be, our hearts had trouble letting go. We wanted Eric out here, with us. Free to wander in ancient forests, to play in the swirling, roaring ocean. To live outside a cage. But now, whatever traces of hope may have remained have been scattered in the wind.

For some of us, our biggest mistake was believing that we ever had any options in the first place. It became all too easy to fall into their trap of successive illusory next-chances. Every time we lost bail, or a motion, or trial, or at sentencing, or at the appeal... there was always something waiting in the queue that could possibly save us from our imminent hell. But the state created that queue – not us. And it was set up to keep us on the hook – to keep us invested in a system (a system that many of us never believed in to begin with) that would never deliver what we most wanted = our friend, uncaged. As long as we believed that something might change somewhere on down the line, we had to keep putting time and energy into this behemoth of injustice.

When the panel for oral arguments on Eric's appeal was announced we immediately did some homework to figure out what we would be facing on August 9th. What we found was less than inspiring. Two of the judges were Bush (junior) nominees. One of the three was described as a legal conservative, who pursues a “tough on crime” approach. Another was mentioned in a 1998 review of local judges reported by the San Francisco Examiner. A poll of area attorneys rated him among the five worst judges among the 49 judges named. One experienced female attorney described Bea's attitude as "condescending and biased against women attorneys." He is also a member of the San Francisco chapter of the Federalist Society.

But most alarming of all was an article we dredged up on Consuelo Callahan which indicated that she and Judge Morrison England – the trial judge in Eric's case – were buddies. This was later confirmed by a lawyer who works in the Sacramento Federal Courts. Just in case you missed the significance of that – one of the judges who would be deciding Eric's appeal, which would mean reversing the decisions of the lower court, is friends with the very person who made those rulings to begin with. For a judge, having your decisions reversed is perhaps the worst kind of embarrassment. But surely Eric's fate wouldn't be decided by the rules of social etiquette?

Perhaps no one will ever know what actually went on behind closed doors (maybe we'll see it on wikileaks one day), but their written decision reflected nothing that had taken place during the oral arguments and was clearly written before they even occurred.

And so, by the time we arrived at the en banc process, most of us (Eric first among us) had absolutely no expectations that this would go in our favor. If anything, the court's decision is an affirmation of what we have known to be true all along. The “justice system” works only for the interests of it's creators. If it starts to falter in it's mission, it gets fine tuned (i.e. laws and rules get rewritten) to put it back on the proper trajectory.

People keep asking: what next? The truth is, there is no more next – at least not in the sense that most people mean. That is the trap we have been falling into all along. That question is misplaced and misdirected. It shouldn't refer to some obscure legal option, but instead it should refer to what we do as individuals and as a movement, as a community, to make things better and to move forward. We - not the state – should define what's next.

Eric has been held captive by the state for almost 5 years, now. He has known, more than any of us, what “next” really means. Next means right now. Next means making a life for himself in the middle of a storm. He has always created his own definitions. He has been moving forward all along.

And so, his struggle continues.

Eric would like to send his sincerest thanks to all of you. You have been instrumental in this fight. Your letters, your songs, your donations, your words of encouragement have kept Eric and his loved ones inspired and strong. Keep it coming! Eric has a long road ahead of him, but with your love and support he will press on. He remains strong in heart and mind. And he knows that dreams can never be caged.


Sacramento Prisoner Support

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