Jury deadlocked in Molotov cocktail case

By JAMES WALSH, Star Tribune

Last update: January 30, 2009 - 3:14 PM

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The jury in the David McKay Molotov cocktail case cannot come to a unanimous decision, jurors told U.S. Chief Judge Michael Davis this afternoon.

Davis instructed the jury to go back and try again. The issue that appears to be vexing jurors is whether government informant Brandon Darby induced McKay into making eight Molotov cocktails during the Republican National Convention in St. Paul last summer.

Just before noon today, the jury had asked Davis to explain the difference between "induce" and "persuade" and asked the judge if it was possible to persuade someone to make Molotov cocktails simply by mentioning them.

What's not clear is how many jurors are struggling with the issues. When asked if the jury's difficulties gave him hope for his son, McKay's father, Michel McKay, said, "If I would know what's the hang-up, I could answer that question." What he doesn't know if most of the jurors favor acquittal, or most of the jurors would convict.

Defense attorney Jeff DeGree said, "It's very hard to know what to make of it. It's a difficult case, obviously."

If the case ends with a hung jury, that does not necessarily mean that McKay will go free. Prosecutors have the option of recharging him, of submitting the case to another grand jury, or dropping charges.

The defense could ask Judge Davis to release McKay pending a new trial.

In closing arguments in federal court Thursday in the case against McKay, the defense and the prosecution laid out a clear set of questions for jurors. Did McKay make and possess eight Molotov cocktails on the eve of the convention in St. Paul and, if he did, was he entrapped?

Neither Assistant U.S. Attorney Jeffrey Paulsen nor DeGree disputed that McKay made the bombs. The point of contention was whether he was talked into doing it by an FBI informant, Darby.

On Wednesday, McKay testified in his own defense Wednesday and insisted he never would have made the bombs if Darby had not told him to do so.

His testimony put him in direct conflict with Darby. The 32-year-old Texan on Tuesday and Wednesday denied that he suggested making bombs.

McKay's claim also contradicts three other statements he has made -- including a confession to an FBI agent, a statement he made in a letter to a judge and a statement he made in a recorded jailhouse telephone conversation with a female friend. In all of those cases, McKay said he regretted his actions and never hinted that somebody else had put him up to it.

"I am completely responsible for my own actions," he wrote in an excerpt read by Assistant U.S. Attorney Jeffrey Paulsen.

But DeGree asked McKay whether he wrote that letter at the direction of the FBI. McKay said he did, adding that a special agent told him that it would look good to the court.

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