Eric McDavid Court Report, Days 8 and 9

Day 8, September 25, 2007

The morning opened with a series of stipulations between the defense and the prosecution. The first was to admit into evidence the “advisements”that Anna was given by the Philly FBI agents. They also stipulated that Anna had filled out a 240 question psychological assessment of Eric’s personality traits (to get advice on how to respond to his “advances” towards her). Next was a stipulation about Ryan Lewis which clarified that Eric had been a friend of Lewis but that Eric was NOT a target of that investigation. The defense then admitted several emails and VHS tapes into evidence.

After this, the government attorneys asked to move two exhibits into evidence and Mark objected, saying that their case had been closed and it was too late to admit things into evidence. Judge England granted the governments request to reopen their case so they could admit the evidence. Mark then opposed the government’s efforts to call Anna back to testify, as their ability to call people for rebuttal should only be reserved for things the defense raises in their case in chief. The government said they were going to ask Anna when the idea for the conspiracy originated and that she would tell them it originated two months before Bio (this would address the predisposition issue raised the day before).

At this point the jury entered and Mark read the stipulations to them. He then played two excerpts from VHS recordings of the argument on the night of the 12th. The tapes showed Anna pushing and cajoling the group to reach a decision about which targets they should focus on. It also clearly showed the tension that existed in the group. Both Lauren and Zach were voicing their desires to slow down, and Eric was supporting them in this. Anna was clearly upset and told the group that she wished they could “stick to a damn plan.” Then the defense rested, and the government did not rebut.

At this point, the court excused the jury until after lunch and the jury instructions were hammered out. This process went fairly smoothly, until discussions began about instructions proposed by the government and the defense. In the instructions about how to weigh the testimony of each witness, the word “benefits” was removed from the instruction about Anna and the phrase “reimbursement for her expenses and compensation” was used. The instruction about the use of undercover agents or informants was altered to substitute the words “cooperating witness” for “undercover agent.” Mark voiced concern that by not using the words “undercover agent” in the instruction, the government might be shielding Anna. The judge overruled.

Mark then asked that a jury instruction be given for a lesser included offense. This would allow the jury to find Eric guilty of a lesser charge if they could not all agree that Eric should be found guilty of the offence for which he is currently charged. The lesser-included offence would be the same one that Zach and Lauren pled to. At first, Judge England agreed to grant the instruction, and he asked the government if a rational jury could find Eric guilty of a lesser-included charge. The government responded yes, but then added that they have case-law stating that the specific charge Mark was requesting was not a lesser-included offense of the original charge. At this point, England said he would grant the instruction for now, pending further information from the government. But the government kept pressing the issue and eventually the judge ruled against Mark.

Then Mark pushed for an instruction that the government had to define what types of explosive device the defendant’s were trying to create, as this was one of the “elements” of the alleged crime. The judge denied the instruction.

Next was the issue of whether or not to include an instruction about the entrapment defense. This was crucial to the defense case – without it, Eric’s entire entrapment defense would be useless. The instruction would advise the jury of the elements of entrapment and what the government must prove to overcome the entrapment defense. With little discussion, Judge England stated that only slight evidence need be raised to allow for this particular instruction, and that it was possible that a jury could look to see the issues of predisposition and inducement in this case. He stated that it would be a clear error to not give the instruction, and the instruction was included.

A discussion of the meaning of predisposition ensued. Mark claimed that case law indicates that the relevant period of time for considering predisposition is before Anna first contacted Eric in August 2004. Not only contact, but friendship and continued communication – she traveled to gatherings and protests with him and maintained email communication after this point in time. Mark stated that you have to look for predisposition at the time BEFORE any possible government inducement of crime. England rejected this argument, stating that reluctance to commit crime was probably the most important element (*this is clearly not the case, when one examines the 9th circuit case US v. Poehlman, the prevailing case law on entrapment). England eventually refused to hear further argument on the matter.

Mark renewed his motion to acquit, based on a lack of government evidence, and Judge England denied it.

Government’s Closing Arguments

Assistant United States Attorney (AUSA) Ellen Endrezzi began her closing argument by referring to the government's opening argument analogy of a puzzle. She said the closing argument was like mapquest -that you could zoom in on the parts that are interesting or important. She said there was a lot of commentary about leadership, romance and money but that none of it was very important.

The AUSA then defined conspiracy as an agreement to break the law between two or more people, the defendant joins knowing its object, and at least one person commits at least one overt act in furtherance of the conspiracy. She stated that it does not matter whether or not the agreed upon crime occurs. In her words “we didn’t have any arsons here but that doesn’t matter for the conspiracy”. She also said “there doesn’t have to be a formal agreement - it can be inferred”. She said they don’t have to agree on everything and the overt act doesn’t have to be illegal. Then the AUSA patronizingly told the jury she used to be a teacher and she wanted them to write down some questions. The questions she told them to write down were: was there an agreement to break the law? Who was part of this agreement? What were the overt acts? The AUSA then told the jurors that when they go back and compare their notes they will find lots of overlap.

The AUSA told the jury that there were different kinds of evidence and that they carry the same weight but they would have to decide for themselves what to believe. She claimed that the entrapment defense was a popular defense because it is on tv and has an “ooh” factor. She then tried to instruct the jury about entrapment with a quote from the supreme court. Eric’s attorney objected and the judge called the attorneys to the bench to discuss it. After it concluded, the judge told the jury that only he can instruct them on the law and asked the AUSA to remove her slide with the supreme court quote.

She said that for entrapment the burden of proof is on the government and that they must prove that the defendant was predisposed to commit the crime or was not induced by government agents. The AUSA stated that for a defendant to be entrapped the government has to do more than just provide the opportunity to commit a crime - they have to provide a special incentive to commit a crime. They also must prove that the defendant was predisposed to commit the crime prior to being approached by a government agent. The AUSA discussed different factors that can be used to determine predisposition.

She said that the character witnesses that testified about Eric didn’t know about his political beliefs and so their testimony was not important because “they didn’t know the side of him that we knew”. The AUSA stated that Eric “was held in such high esteem by the protest movement he even mediated a spokescouncil meeting”. She stated that Ryan Lewis was Eric’s inspiration and that Eric believed the arsons Ryan did were sloppy. The AUSA stated that when the cabin was searched they found a year old article about Ryan Lewis’s arrest. The AUSA said that Eric was not induced because he invited Zach and Lauren to join the conspiracy and that he did not profit from any of this but that he was motivated by his core beliefs. She said that if Anna had not bought all the supplies for the group they would have just stolen them. She stated that “romance is a red herring” and that Anna rebuffed Eric.

The AUSA claimed that Eric showed no reluctance in the conspiracy. The AUSA told the jury they should look at his character. She then told them what she thought were the most salient features of his character: that he allegedly threatened Anna, that Anna claims he waved a knife in her face, that he thought that Ryan Lewis messed up, that Zach claimed Eric talked about dropping sugar or little bombs in gas stations while they passed through Kansas and his comments about the death of civilians. She said the financial incentives provided by the government can’t be considered as such because the defendant chose a lifestyle where he was homeless.

The AUSA stated that there doesn’t have to be a leader for a conspiracy. In her words “Anna could have lead, McDavid could have lead” but that it doesn’t matter. The AUSA stated that regarding Anna “she is not giving directions, if she is, it is rare” and that “if there was a tape of Anna pushing we would have shown it”. The AUSA said that “Anna lets us see Eric McDavid for who he is” meaning that Eric became more radical during the time that Anna knew him. The AUSA also took the opportunity in her closing to reiterate that Zach “is responding to questions that the FBI has about other people”, meaning individuals not connected to this case. At one point she confused Zach Jenson with Derrick Jensen and said that Derrick Jensen went to visit his mother for the holidays in Tennessee.

Defense Closing Arguments

The closing argument for the defense was made by Eric McDavid’s attorney, Mark Reichel. He told the jury that they were smart and he didn’t use a bunch of theatrics to convince them of anything. Mark stated the government had to prove conspiracy and prove that Eric was not entrapped. He indicated that this is not about Lauren or Zach, but that this case is the tale of two people, Anna and Eric.

He reminded the jurors that Zach and Lauren both testified that they were acting during much of the “conspiracy” because they did not want to let Anna down. But unlike Eric, neither of them were in love with her, yet they were still so under her thrall that they felt they couldn’t disappoint her. Mark then reviewed the testimony and evidence that established that Eric was in love with Anna. He stated that Anna, Zach and Lauren had all testified to this fact, that there was one love letter in evidence and that Anna had admitted to throwing away the other two. Mark then told the jury that Anna filled out a 240 question personality test for the FBI behavioral psychology division. AUSA Endrezzi had stated in her closing that this was done so that Anna could figure out how to let Eric down easy. Mark said that the FBI’s response to her was all about how to keep him hooked and not scare him away.

Mark stated that Eric had no predisposition to commit this crime. He stated that Eric was aimlessly traveling around and that when he met this ambitious employee of the FBI he didn’t have a chance. Anna testified earlier that she was an excellent liar on a mission to investigate political protest for the FBI. Mark refers to the recorded conversation where Anna indicates that she asked Eric how he became radicalized and Eric says that it was her. Marks talked about Lauren and Zach’s testimony and says “their motive is the 75% off sale,” referring to the 75% sentence reduction they hope to get from testifying. He referenced the AUSA’s claim that the Zach and Lauren have to tell the truth by saying “it is not my version of the truth, it is Ms. Endrezzi’s version of the truth.” Marks stated that Zach and Lauren spoke to Eric’s predisposition when they testified that he was a peaceful and gentle person. He said that Anna made an important evaluation of Eric’s predisposition when she testified that upon meeting him in August of 2004 she told the FBI he was no one of interest.

Mark stated that after the meeting in November of 2005 there was no agreement. They did not know where they would go, what they would do or how they would do it. There was still no agreement in January. Mark also stated that Eric was high at the meeting in November and that you can’t enter into a conspiracy while high and stating “if you say it while high, it might be a lie.”

Mark countered Endrizzi's statements about Eric being a facilitator at a spokescouncil meeting in Philly at Bio (perhaps to prove he was a “leader”) by pointing out that Anna made it into a spokescouncil at the age of 17 at her very first protest. In regards to the government's constant insistence that Eric was the “keeper” of the “burn book” Mark reminded the jury of the tape the defense played earlier in the morning, on which Anna is clearly heard asking for people to fetch the book, and Eric tells her to not worry about it. Anna brought the book to Dutch Flat and was the one who filled a large percentage of it with her “bomb recipes.”

In response to Endrizzi's statements about the group being able to steal the supplies they would have needed – thus making Anna unimportant - Mark pointed out that it might have been difficult for them to steal a cabin in Dutch Flat. He stated that the government was participating in the creation of a case in the courtroom, just as they had in the field. All of the things that Eric allegedly said to Anna in the beginning were NOT on tape – meaning that it's her word against his – and she is self-proclaimed accomplished liar. When Anna tried to get it on tape that Eric was the 1st one to mention the IFG and attacking federal buildings, he clearly had no recollection of those converstaions ever taking place.

In October 2005, Anna met with the FBI to create a crime – she was instructed to get three on board. In October and November there were a number of phone calls and emails from Anna to Lauren about going to California. Lauren had no wherewithal and in fact told Anna that she has panic attacks in airports and inner ear problems on planes. Anna got her to come anyway. Eric said that he had family things going on and wouldn't be able to meet. Anna's response is that she can't believe how selfish he is being. Is this inducement? Yes. Did Eric have a lack of predisposition? Yes. Anna was there to get them to fix on a target, an object, and to get them more on board. All three of them (Lauren, Zach and Anna) testified to that.

Was there inducement? Anna paid for their travels. Eric was in love with her. The list goes on. Anna had one target and that was the group itself. In November of 05 the corraling really begins. If you remove Anna, the other three are tumbleweeds, going their separate ways. Is it inducement if you provide the place, all the supplies, the chemistry supplies and know-how, recipes, heart strings, $100 bills, if you are the glue, you provide advice, instruction... Yes.

Fairness is the heart of justice. It is the heart of life. Smearing (as the government has done to Eric) isn't fair. Mark then asked the rhetorical question of whether or not the government would address new things in their rebuttal that Mark would be unable to respond to. Again, they are creating a case in the courtroom. He asked the jury to pay significant attention to the jury instructions about government witnesses and the instuction about entrapment.

Government Rebuttal
Then AUSA Steve Lapham began the government's rebuttal, which was essentially a lengthy restatement of the government's closing argument. What follows is a summary of the statements not already made in the government's first closing argument. AUSA Lapham said that Eric was predisposed to commit the crime because he told Anna he had been thinking about how to make explosives in April of 2005. Lapham says that the FBI began investigating Eric because he told Anna he had “something big going on in California”. Lapham also said “remember at this point the FBI has other info on Mr. McDavid's radical tendencies”. He did not eloborate on what he meant, but stated that those were the reasons Anna was “talked by the FBI to investigate him.” Lapham said that Anna's allegation that Eric threatened to kill her coupled with his disclosure about his idea for a “bombing campaign” meant that he was serious.

Lapham then said again that the defendant did not have to engage in an overt act in order to be convicted but that “the mere fact of coming together at the cabin was an overt act”. He went on to say that searching for sites about chemicals on the internet was an overt act and that “when they hit the start button on the computer that was an overt act”. That tangent continued with Lapham stating that visiting San Francisco was an overt act; as was boiling bleach, measuring salt and making fuses. He summed it up by saying that “the conspiracy train has already left” and “these defendants were guilty the moment Lauren Weiner bought 'The Poor Mans James Bond'”. Lapham brought up the Derrick Jensen interview, allegedly brought to the Foresthill meeting by Eric, and paraphrased Eric's alleged persepctive on the interview by saying “this is the guy that pumped me up and got me to believe that harsher tactics are neccessary” and “It is Derrick Jensen in this article that says I can't decide if I want to write or blow up a dam and that is his philosophy and that is Eric McDavid's philosophy”.

The AUSA then took a brief stab at putting their case in historical perspective by saying that since this country was founded, conspiracy has always been a problem because it involved people getting together, sharing their knowledge and encouraging each other. He then decided to respond to Mark's assertion that Eric was high at certain points during the time period in which this alleged conspiracy occurred by saying “you can't be high 100% of the time”. The AUSA stated “there is no inducement here, none”. AUSA lapham stated that Eric being in love with Anna was motive, not inducement, and “the law doesn't care why you've committed a crime”.

The AUSA told the jurors that if they believed that Anna implanted the idea for the conspiracy in his head or took steps to induce the crime then they should acquit. He followed that by saying that there was no evidence that Anna did anything to induce or cajole anyone. Lapham went on to say that the three were not homeless and penniless in the way we are used to.

He said the FBI was “on it” from the beginning and would never have let them pull a conspiracy off. He said they had to wrangle them together to create a crime because “they ride the rails, they dumpster dive, they can dissappear faster than anyone.” Lapham said that the reason they talked and talked and never decided anything is because “this is a very egalitarian, no that's probably the wrong word, this is a very anarchist group.” He then asked the rhetorical question - if the FBI hears someone talking about bombing the pentagon or world trade center should they just not follow up on it because they don't think the people are capable? Lapham closed by saying Anna received no benefits and that the money she got is a small amount for the services she provided and the risks she took.

After the government rested, the jury was dismissed for the day. They were told they would receive their instructions the next morning and then begin deliberations. After the jury had left, Mark moved to get the “Sears” instruction included in the jury instructions. This instruction specifies that a conspiracy cannot exist if it is only between a defendant and a government informant. In Eric's case, this would mean that a jury could not convict him if it found that a conspiracy only existed between him and Anna. Judge England stated that Zach and Lauren both testified that they were part of the conspiracy and this instruction would mean that the court would have to discount their testimony completely. Mark responded that Zach testified that Eric and Anna agreed on the IFG as a target – but this was the only “agreement” that Zach could point to during his testimony. England said he would review the case-law and revisit the issue in the morning. Court was adjourned for the day.

Day 9: September 26, 2007

Court began with a discussion about the Sears instruction from the previous day. England stated right away that his reading of the law indicated that the instruction would be required. He went on to say that we may need other special instructions to clarify who the conspiracy was actually between – including a special verdict form. Anna cannot be the only person with whom Eric conspired.

The AUSA responded to Judge England by saying that the instruction was not necessary because in Sears the defendant only had contact with the informant – not the other parties to the conspiracy. He also claimed that Mark never argued Eric had only conspired with Anna, and thus there would be some prejudice to the government. He claimed that the instruction was included in Mark's original proposed jury instructions, but not in the final packet.

England pointed to Zach's testimony and certain conversations on the tapes and said that the jury could possibly say that there had been a conspiracy between Eric and Anna, but not the other two. He said that since there was “an issue of a person's liberty at stake” he had to grant the instruction.

Mark then stood up and voiced strong disagreement with everything that the AUSA had said, claiming that there were a number of cases where the defendant knew the other conspirators. He also made clear that there is no rule that states the defense has to explain their strategy in closing arguments.

Then the discussion moved to the creation of the jury form, in light of the new instuction. England wanted to make sure that a clean record was created, in case of appeal. The new verdict form requires the jury, if they find Eric guilty, to indicate with whom they believe he entered into a conspiracy. They're decision on this must be unanimous.

At this point the jury was brought back into the room and read the jury instructions.

The jury deliberated until 4:30 and then broke for the day. The jury has not reached a verdict and will continue to deliberate tommorow (Thursday, September 27).