Mistrial, Retrial for McKay

David McKay (Photo courtesy of Lauren Pool)

After being held without bail for five months, 22-year-old David McKay stepped out into the Minnesota cold on Monday after being released on a $25,000 bond following a mistrial. The weeklong trial, in which McKay was charged with possession of unregistered firearms, ended after jurors admitted they couldn't reach a verdict. McKay's defense hinged on Brandon Darby, the 32-year-old activist turned informant whose cooperation with the FBI led directly to McKay's arrest in September.

Both McKay and Darby took the stand and during cross-examination gave differing views on basically the same story: McKay, along with his friend Bradley Crowder, who pleaded guilty Jan. 8, bought bomb-making materials from Wal-Mart and assembled eight Molotov cocktails during last summer's Republican National Convention in St. Paul, which were found in the basement of the residence in which McKay was arrested in the early hours of Sept. 3. The stories diverge, however, when it comes to Darby's involvement: McKay says that he wouldn't have built those bombs had Darby not encouraged him to do so after coming up with the idea in the first place; Darby insists that not only did he not encourage McKay and Crowder but that short of admitting that he was working undercover with the FBI, he did everything he could do to talk them out of it. (See "The Informant," Jan. 23, and "RNC Aftermath," Jan. 16.)

After deliberating since Thursday afternoon, the eight-woman, three-man jury returned to the courtroom Friday morning to ask the judge to define the terms "induce" and "persuade." They wondered if simply mentioning Molotov cocktails was grounds for entrapment. According to reports from within the courtroom, the judge refused to define the terms. By the time Monday rolled around, the jurors still seemed to feel that they didn't have enough information and asked to see the transcripts of the e-mail exchanges between Darby and the FBI – particularly one in which Darby mentions his desire to continue working with the bureau – and testimony of the meeting that took place Aug. 31, the night before the Wal-Mart shopping trip. The requests were denied, and that afternoon, the panel was officially a hung jury.

McKay isn't off the hook, however. Condi­tions of his release include that he surrender his passport, submit to drug testing, and live with his father in Midland until court-approved housing is arranged. The prosecution has no plans to drop charges, and a retrial has been set for March 16.