Entrapment: The act of government agents or officials that induces a person to commit a crime he or she is not previously disposed to commit – West’s Encyclopedia of American Law
After serving nine years in prison, Eric McDavid was freed on January 8, 2015, when it was revealed – through Freedom of Information Act (FOIA)-released court documents pored over by his supporters – that the government withheld documents from him that supported his defense claim that he was entrapped by the FBI.
McDavid, who identifies as an anarchist and an environmental activist, was charged with “conspiracy to use fire or explosives to damage corporate and government property” in May 2008 and sentenced to 19 years and 7 months in prison.
McDavid is a victim of a long history and concerted effort by federal and state entities in the United States to target anarchists and other radicals. An early example of surveillance and harassment against birth control advocates, anarchists and radicals being targeted by the US government dates back to the Comstock Act. Passed in 1873, Comstock Law allowed the US Postal Service to spy on mail and report “suspicious” or “obscene” mail to state entities. The proponent of the law, Anthony Comstock, was appointed as a special agent to the US Postal Service from 1873 to 1915 where he utilized entrapment by writing to doctors and posing as a young pregnant woman.
The Comstock Law had a chilling effect on free speech, which led to anarchist Emma Goldman’s arrest for her publication Mother Earth and the destruction of anarchist literature by the US Postal Service.
In the infamous Haymarket Affair of 1886, involving the fight for the eight-hour-work-day, a bomb and subsequent riot led to the deaths of seven policemen and four workers. The following day, martial law was declared, houses were searched without warrants, and labor leaders and anarchists were rounded up indiscriminately. Seven of eight anarchists arrested were sentenced to death by hanging.
Targeting of radicals continued into the Red Scare of 1919 and the FBI’s Counterintelligence Program (COINTELPRO), which surveilled activists and civil rights participants, bugged their houses and sabotaged their relationships, even when there was no evidence that they posed a threat.
Although 1967 is when the FBI officially expanded its COINTELPRO to include what it dubbed “Black Nationalist-Hate groups,” research by Clayborne Carson revealed that Black Nationalism was targeted after WWI. Early on, Marcus Garvey and A. Philip Randolph were targeted by the FBI under J. Edgar Hoover’s direction. The targeting, surveillance and “dirty tricks” employed by the FBI’s COINTELPRO expanded to Martin Luther King Jr., Student Nonviolent Coordinating Committee (SNCC), Black Guerilla Family, Black Liberation Army, the Black Panther Party, the American Indian Movement and many other groups.
COINTELPRO’s Dirty Tricks
Examples of the COINTELPRO’s “dirty tricks” include FBI field offices sending fake letters to incite violence between the Black Panther Party and Puerto Rican Nationalists and the murders of Fred Hampton and Mark Clark.
These type of tactics have only increased since the signing of the USA Patriot ACT in 2001, leading to a dramatic increase of surveillance, targeting and entrapment – in Muslim-American communities in particular. Another population that has been targeted are activists who identify as anarchist or associate with the Animal Liberation Front (ALF) or Earth Liberation Front (ELF).
According to Eric McDavid’s lawyer, civil rights attorney Ben Rosenfeld, “Over the course of my 15-year career, I have seen a sharp rise in the targeting, entrapment and absurd branding of environmental activists as terrorists, dovetailing with the FBI’s focus after 9-11 in trying to prevent terrorism, or at least pretend to the public that it is doing so, which misdirects priorities, infects judicial processes with bias, and insults the victims of actual terror.”
In 2004, the FBI stated, “In recent years, the Animal Liberation Front and the Earth Liberation Front have become the most active criminal extremist elements in the United States.” Even though the FBI admits that these groups discourage any act that harms an animal or human, this type of rhetoric that brands activists as “terrorists” has led to the entrapment arrests of Bradley Crowder and David McKay; the SHAC 7 arrests – and more recently, Eric McDavid.
McDavid’s case was described as one of the most blatant cases of FBI entrapment in US history, involving an informant who went by “Anna.” The informant engaged in flirtations with McDavid, and rented a cabin and purchased bomb-making supplies with FBI funds. It was later discovered that “The FBI had extensively wired the large, two-bedroom cabin, for audio and video surveillance, and agents were apparently encamped at a command post down the road.”
McDavid’s habeas petition, prepared in 2012, revealed that “Anna” did a project in her community college course where “she went ‘undercover’ into the FTAA (Free Trade Area of the Americas) protest in Miami and wrote about it in a report. This impressed a police officer in her class who showed her report to his superiors, who then summoned her to meet with Miami police officers and an FBI agent. The FBI began grooming her to infiltrate protests, including protests against the G-8 Summit in Georgia in 2004, and against the Republican and Democratic National Conventions in New York and Boston, respectively, that same year.”
Regarding McDavid’s case, Rosenfeld explained how he was “disgusted by the extraordinary lengths the FBI went to pin a case on Eric, even though Anna had first reported to them that he was just a harmless college kid, simply to crucify him as an example to the radical environmental movement.”
McDavid was released when it was discovered that federal prosecutors withheld crucial evidence from the defense, which included not informing jurors that the informant “Anna” was a government agent. On Democracy Now! Rosenfeld said, “The government had called urgently for a lie-detector examination of their informant and then inexplicably canceled it. There are indications that letters of a romantic nature that they had withheld from the defense were included in their files.”
According to The Guardian, McDavid’s trial lawyer Mark Reichel said, “I demanded to see the love letters before the trial, but the government told me they didn’t exist.” Reichel maintains that McDavid’s case was the result of the government targeting anarchists and “manufacturing crime.”
Regarding the overarching implications of targeting activists, Rosenfeld stated, “The FBI’s oppressive and deceitful tactics chill people into inaction, reduce diversity at public protests, sow mistrust in government, and drive a certain core of activists underground.”
McDavid’s partner and member of Sacramento Prisoner Support, Jenny Esquivel, said her group provided support and solidarity since McDavid’s arrest in January 2006. Esquivel stated, “We ended up doing the kind of support work that dozens of other support groups all across the country (and internationally) do for political prisoners every day – fundraising for legal defense and the costs of imprisonment, telling Eric’s story and gathering support for him from his community and the public, writing letters, visiting, sending books and advocating for his health and basic needs while he was in jail and prison.”
While in prison, McDavid was in isolation for two and a half years, she said, and “During that time, he had almost no human contact with anyone. He was not allowed out of his cell with other inmates; he only got to go outside for a couple of hours each week, and he was allowed visitors twice a week separated by a wall of glass with a phone that seldom worked.
Hunger Strikes Cause Heart Damage
In prison, McDavid went on two separate hunger strikes because the jail would not provide him vegan food. “While he was on hunger strike, he lost almost 30 pounds” Esquivel said. “He became very weak, and his health suffered terribly. The lack of nutrition and proper care ultimately resulted in him getting pericarditis – a heart condition that involves the swelling of the sack around the heart. It is incredibly painful and feels like a heart attack.”
Because McDavid was labeled an “Eco-Terrorist,” he and Sacramento Prisoner Support were both subjected to heightened surveillance. Esquivel elaborated on the monitoring: “Eric was under constant scrutiny within the BOP [Federal Bureau of Prisons]. All of his mail and phone calls were heavily monitored. He was frequently visited by SIS [Special Investigative Service] – the internal intelligence agency within the BOP. Only one journalist was ever able to get in for an interview with Eric – and he was not allowed any recording equipment.”
Regarding surveillance on Sacramento Prisoner Support, Esquivel said Freedom of Information Act (FOIA) documents revealed that a member of their collective was under extensive surveillance. “Our events were frequented by FBI agents. They were watching our house. At one point, we saw one of the FBI agents involved in Eric’s case seemingly helping someone move out of an apartment a block away from our house. . . . I have a hard time believing that was a coincidence.”
FOIA documents also revealed that all of McDavid’s correspondence in jail was sent to the Sacramento FBI, then forwarded to field offices nationally and intelligence agencies internationally, if a letter was not from the United States.
Rosenfeld doesn’t feel the resolution of McDavid’s case of entrapment – that stole nine years of his life – should just be praised as justice delayed. He wants the people who withheld key documents and put “Anna” on the stand to lie to be held accountable.
“The Department of Justice officials want to skate away from this mess with the meager mea culpa that ‘a mistake was made,’ ” Rosenfeld said. “The FBI Case Agent, Nasson Walker, has not answered publicly. One of the federal prosecutors, Steven Lapham, is now a Sacramento Superior Court Judge. The other, Ellen Endrizzi, is still working as an Assistant US Attorney. Where’s the accountability? Explain your so-called mistakes, and if the explanation is lacking, fire and prosecute the people responsible.”
Esquivel emphasized that even though McDavid has substantial support coming out of prison, most prisoners don’t – and one of the takeaways from this case should be a more wide consideration of the need to provide prisoner and community support for all people coming out of prison, especially people who are disproportionately impacted such as people of color and the poor. Sacramento Prisoner Support set up a website collecting donations for McDavid to help him get back on his feet.
(Very special thanks to Ben Rosenfeld for assistance with editing and accuracy.)