Mistrial, Retrial for McKay

Jurors drop bomb on prosecutors' case against man accused of bomb-making

David 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.

Got something to say? The Chronicle welcomes opinion pieces on any topic from the community. Submit yours now at austinchronicle.com/opinion.

A note to readers: Bold and uncensored, The Austin Chronicle has been Austin’s independent news source for over 40 years, expressing the community’s political and environmental concerns and supporting its active cultural scene. Now more than ever, we need your support to continue supplying Austin with independent, free press. If real news is important to you, please consider making a donation of $5, $10 or whatever you can afford, to help keep our journalism on stands.

Support the Chronicle  

More David McKay
Domestic Terrorists? Or Activist-Acolytes Led Astray by a Mentor?
Domestic Terrorists? Or Activist-Acolytes Led Astray by a Mentor?
Documentary 'Better This World' ponders the endless shades of gray

Marc Savlov, Feb. 24, 2012

The Informant
The Informant
Revolutionary to rat: The uneasy journey of Brandon Darby

Diana Welch, Jan. 23, 2009

More by Diana Welch
The Real Cost of a Lap Dance?
The Real Cost of a Lap Dance?
Lawsuit cites violation of wage laws at strip clubs

Oct. 29, 2010

RNC Aftermath
RNC Aftermath
Austin protester pleads guilty in Minnesota

Jan. 16, 2009


David McKay, Brandon Darby, Bradley Crowder

One click gets you all the newsletters listed below

Breaking news, arts coverage, and daily events

Keep up with happenings around town

Kevin Curtin's bimonthly cannabis musings

Austin's queerest news and events

All questions answered (satisfaction not guaranteed)

Information is power. Support the free press, so we can support Austin.   Support the Chronicle