RNC defendant released for now

  • Article by: JAMES WALSH , Star Tribune
  • Updated: February 3, 2009 - 11:59 AM

A hung jury means a Texas man accused of making Molotov cocktails can go home until his new trial starts in March.

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David McKay, 22, of Midland, Texas, was released from jail after a hung jury could not reach a verdict in the federal case against him for making and possessing Molotov cocktails during the Republican National Convention last summer in St. Paul.

Photo: Jerry Holt, Star Tribune

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The Texas man accused of making Molotov cocktails during last summer's Republican National Convention stepped out of the federal courthouse in Minneapolis on Monday a free man -- for a while, at least. A jury of eight women and three men told the judge that they had no hope of reaching a verdict, prompting a mistrial.

U.S. Chief Judge Michael Davis set March 16 as a new trial date for David Guy McKay, 22, of Austin. McKay, who has been in jail since his arrest Sept. 3, said the jury's action -- and his subsequent release on a $25,000 bond -- felt "surreal."

"I'm just glad to go home with my dad," McKay said as he walked into the courthouse lobby. "I still have to go home and prepare to defend myself again. That's what's on my mind right now."

That, and a good dinner. McKay said he was anxious for a meal and to feel the outside air -- even if that meant stepping into a frigid Minnesota February evening. McKay can return to Texas with his father under conditions of his release.

McKay and another Austin man, 23-year-old Bradley Crowder, were arrested after police, working on a tip from someone inside their inner circle, searched an apartment building where they were staying and found eight Molotov cocktails. Crowder pleaded guilty Jan. 8 to manufacturing and possessing the explosives. Investigators said the men planned to use them to set parked police cars on fire. The bombs were never used. McKay faces up to 10 years in prison if he is convicted.

But McKay, who admitted to making the explosives in an interview with the FBI and in a letter to the judge, insisted at trial that it was the FBI's informant, Brandon Darby, who coaxed him into the deed. McKay and his attorney, Jeff DeGree, said an overzealous Darby entrapped McKay. In fact, McKay said, it was Darby who first brought up the idea the night before the convention started.

Almost from the start of deliberations, it appears that at least one juror gave entrapment a lot of thought.

The trial went to the jury late Thursday afternoon last week. By Friday morning, the jury was sending questions to Davis, asking for the definitions of "induce" and "persuade" and asking if it was possible if merely mentioning Molotov cocktails to someone was the same as inducing someone. The judge declined to give definitions to the jury.

Later Friday, jurors said they were having a hard time reaching agreement. Judge Davis sent them back into deliberations and told them to keep trying. By the end of the day Friday, Davis excused the jury for the weekend and told them to resume their work Monday.

But by noon Monday, the jury had another request. They asked the court for transcripts of Darby's testimony from Aug. 31, when, according to McKay, he and McKay and Crowder talked about the Molotov cocktails. The jury also asked for June e-mails between Darby and the FBI special agent with whom he had been in contact for months. Jurors specifically wanted to see an e-mail in which Darby mentioned his desire to keep working for the FBI.

The judge declined to give the jury those transcripts. "You must make a decision based on what you recall as evidence," he told the jury.

At 3:30 p.m., after both DeGree and the prosecutor, Assistant U.S. Attorney Jeffrey Paulsen, agreed that Davis should not provide the transcripts, Davis called the jury into the courtroom. He then asked the jury foreman "is the jury deadlocked?"

"Yes," the foreman said.

Davis then asked if the jury could come to "a fair and just verdict" if jurors had more time.

"No," the foreman said.

After the 11 other jurors told Davis that the foreman's answers were accurate, Davis thanked them for their service and released them.

"The government does intend to retry this case," Paulsen said. When asked if he could say more, Paulsen responded: "There is still a trial pending, so I cannot comment."

'I feel fantastic'

As McKay walked into the courthouse lobby, he and his father shared a long embrace. They plan to drive back to Texas in David McKay's car, Michel McKay said. Both McKay's father and DeGree said they hold out hope to make some kind of deal with prosecutors that would preclude more time behind bars.

McKay said that the fact that at least someone in the jury room believed that he was entrapped gives him hope for his case. He said he knows what he did was wrong, but he really wants to go home.

"I'm not trying to clear my name. I'm trying to let people know what really happened," he said. "Right now, I feel fantastic. I have never been this happy just to get outside in my entire life."

James Walsh • 612-673-7428

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