But now we know -- as his lawyers always suspected -- that the federal government committed prosecutor misconduct in the case by withholding THOUSANDS of pages of exculpatory material from the defense. If the prosecution team had turned over the exculpatory "Brady material" like they were required to under federal law and as directed by the federal judge in the case, Eric McDavid would almost surely never have been convicted in the case.
Eric McDavid was an idealistic young environmental activist when he was convicted in 2007 for domestic terrorism for plotting to blow up a dam in Northern California. But Eric McDavid contended that his involvement in the alleged plot to blow up the dam was not his idea but rather the idea of an FBI informant named "Anna" with whom he was smitten. Letters between Eric McDavid and Anna -- in which McDavid expressed his love for Anna and Anna purported to reciprocate and string him along -- were among the thousands of pages withheld by the prosecutor. Clearly these letters were material to McDavid's entrapment defense. Further, as "evidence favorable to an accused" the letters constituted Brady material required to be disclosed under Brady v. Maryland (1963) 373 U.S. 83.
Unfortunately, the prosecutor misconduct in the McDavid case is not an isolated instance. In an important 2013 Ninth Circuit dissent, Chief Judge Kozinski wrote that "Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend."
Judge Kozinski implored judges to be more assiduous in holding prosecutors accountable for violations of Brady v. Maryland. He wrote: "We must send prosecutors a clear message: Betray Brady, give short shrift to Giglio, and you will lose your ill gotten conviction. Unfortunately, the panel's decision sends the opposite message. The panel shrugs off an egregious Brady violation as immaterial….On these facts, I would easily find a Brady violation. My only question is whether the Assistant U.S. Attorney's failure to discover the WSP report was willful or reckless, and if so, whether an Order to Show Cause should be entered inquiring why he and his supervisor should not be sanctioned….By turning a blind eye to this grave transgression, the panel has shirked its own duty and compounded the violence done to the Constitution by the Assistant U.S. Attorney."