Accused Molotov cocktail-maker McKay shakes it up again at retrial

As soon as it became clear Monday that his former co-defendant was going to testify against him, accused Molotov cocktail-maker David Guy McKay decided -- after months of insisting he was entrapped -- to plead guilty.

By JAMES WALSH, Star Tribune

Last update: March 17, 2009 - 8:27 AM

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McKay told the judge that he wanted to take responsibility for his actions. But McKay wouldn't completely back off his earlier insistence that Brandon Darby, the government's informant, influenced his decision to make the bombs.

So, with a panel of prospective jurors waiting outside the courtroom, Davis told McKay to think about it and come back today.

It was another twist in a continuing drama that raised questions about protest groups' efforts to disrupt last summer's Republican National Convention in St. Paul, and the government's efforts to infiltrate those groups to root out potential violence.

McKay, 23, was arrested Sept. 3, 2008, after authorities, using information from Darby, found Molotov cocktails that he had made with friend Bradley Neal Crowder, in a home where protesters were staying during the convention. Crowder and McKay were indicted and, in December, Crowder pleaded guilty to making and possessing the explosives.

But McKay took his case to trial. He claimed that Darby was a provocateur. Instead of just reporting to federal officials about the Texas protest group's actions, McKay said that the more aggressive and experienced Darby actually persuaded McKay to make the bombs.

At least one juror believed McKay. After several days of deliberations in January, jurors told Davis they could not come to a unanimous decision as to McKay's guilt. Davis declared a mistrial, released McKay after months behind bars and set Monday as the start date for the new trial.

In the meantime, assistant U.S. attorney Jeffrey Paulsen asked Davis to give Crowder immunity in order for him to testify against McKay.

McKay had claimed at trial that he, Crowder and Darby were sitting around a computer on Aug. 31 when Darby suggested they make bombs. But, when Crowder confessed, he said no one influenced him to make the explosives, Paulsen said.

Recordings of telephone calls involving Crowder and McKay would confirm the same thing, Paulsen said.

Immunity ruling triggers plea

As soon as Davis ruled that Crowder would indeed be immune from further prosecution if he testified at McKay's new trial, McKay's attorney Jeff DeGree said that his client wished to plead guilty to all charges. In exchange, the government would not seek to increase the severity level of the crimes at sentencing.

That's where things got interesting.

As Paulsen questioned McKay about whether Darby mentioned the idea of Moltov cocktails, McKay said that he made the decision to make the bombs. But he wouldn't deny that Darby had some influence.

Davis immediately jumped in. He had testified that he was entrapped at trial, Davis said. He had convinced at least one juror. He couldn't now just plead guilty in order to move on if he was still saying that Darby played a role, Davis told him.

"Did you lie at your last trial?" Davis asked, according to the transcript.

"No, sir," McKay said.

"Are you lying now?"

"I'm trying to take responsibility," McKay said.

When DeGree said that the issue isn't black and white and that the question of Darby's influence could be determined at sentencing, Davis told McKay that he would have a tougher time proving entrapment then than at trial. So he decided to adjourn until today, giving the sides time to decide how to proceed.

"My suggestion here is that we need time to cool off," Davis said.

Prospective jurors and the two sides will gather again in Davis' courtroom at 9 a.m.

James Walsh • 612-673-7428