For two days, he'd heard witnesses for the government and for his own defense discuss whether he had planned to lob Molotov cocktails during the Republican National Convention in St. Paul last summer. He'd even taken his own turn on the witness stand.
But now, as a federal prosecutor and his defense attorney made their last appeals to the jury, there was nothing the 23-year-old Texan could do but listen.
Jurors got the case about 2:40 p.m. Thursday and deliberated about two hours before leaving. They resume at 8:30 a.m. today in federal court in Minneapolis.
To Assistant U.S. Attorney Jeffrey Paulsen, McKay was a determined member of a group of activists from Austin and schemed to firebomb first a truck hauling a Jumbotron screen, then a parking lot filled with police cars.
"Mr. McKay and his group came here to sow anarchy," Paulsen said as he started his closing argument. He said that after McKay and a friend had their riot shields seized, were arrested and had their plans for protest stymied, he was outraged and decided "to take it to another step, a violent step, an illegal step."
Not so, countered defense attorney Jeffrey DeGree. McKay, he said, was entrapped by an FBI informant who planted the firebombing scheme in his head with fiery rhetoric. Had it not been for the informant, a fellow Texan named Brandon Darby, there would've been no crime, the defense lawyer told jurors.
"Ladies and gentlemen, this is not — not, not — an attempt to blame somebody else for David McKay's problems," he said. "What the government did and what Brandon Darby did in this case was wrong."
He said that while the FBI had asked Darby to be the bureau's "eyes and ears" to monitor the small, loose-knit group of activists that included McKay, the informant crossed the line and incited the group to break the law.
"He wasn't the eyes and ears. He was the mouth — a violent, firebomb-obsessed mouth," DeGree declared.
McKay was named in September in a three-count federal indictment alleging that he built and possessed Molotov cocktails, and that the devices lacked serial numbers. He was charged along with another Texan close friend Bradley Neil Crowder, also 23 — and each count carries a maximum sentence of 10 years in prison.
But Crowder accepted a deal this month and pleaded guilty to a single charge, and he'll face from 30 to 46 months in prison. Although his name came up repeatedly during trial and the FBI claimed he was a leader of the Austin group, neither side called him as a witness.
To make the government's case, Paulsen called seven witnesses to the stand, including Darby. The defense put on three witnesses, including McKay.
The two men shared at least one thing: Both defendant and informer briefly fought back tears on the witness stand.
In his two hours and 20 minutes of direct testimony and cross-examination, McKay said Darby had been a heavy influence on him.
There was no dispute that McKay and Crowder bought the parts for and assembled the eight Molotov cocktails seized Sept. 3 in a raid on an apartment house half a mile from the convention center. The issue, U.S. District Judge Michael Davis instructed jurors, was whether McKay had any "intent or disposition" to commit the crime before meeting Darby, and whether the informant "induced and persuaded" McKay to make the devices.
To that end, the opposing lawyers did what they could to paint McKay as the person who best fit their theory of the case. Paulsen had the added burden of defending Darby's activities; he said the informant acted within the law.
He noted Darby had been an activist and had gained a national reputation for his relief efforts in New Orleans after Hurricane Katrina. He acknowledged that Darby had lived the lifestyle of a revolutionary, but said that he had never resorted to violence — and had even tried to talk McKay and Crowder out of building the Molotov cocktails.
"Why, what motivation ... would Mr. Darby have to incite somebody to make Molotov cocktails?" Paulsen asked.
Rather, the prosecutor argued, McKay had been exposed to the idea of Molotov cocktails when he attended a meeting in Austin featuring a couple of members of a group calling itself the RNC Welcoming Committee. It was an anarchist and anti-authoritarian group that planned demonstrations and confrontations with police during the convention.
At the meeting in an Austin bookstore in March, the RNCWC members played a sometimes-humorous video showing black-clad people — their faces obscured by bandanas — practicing with shields and batons, carrying a bowling ball near a U.S. Navy recruiting office, clipping shrubs with bolt cutters — and tossing a Molotov cocktail to light a barbecue grill.
"This was a week before he ever sat down at a meeting with Brandon Darby," Paulsen argued. "He didn't need anybody to tell him what to do next. The RNC Welcoming Committee told him what to do."
McKay made the Molotov cocktails "just as the people trying to create anarchy had instructed him to do," the prosecutor said.
DeGree said that McKay and Darby were "two very compelling figures," but that McKay was young, gullible, lacked activist experience and came to view the older Darby as someone he wanted to emulate.
He likened Darby to parents who injure their child in an attempt to win praise for taking the child to the doctor. The activist-turned-informant set up McKay, then reported him to federal agents, he said.
Darby was "the guy who started the dominoes falling and came to the rescue to save America," DeGree said. "This is a guy who thinks it's his job to save the world."
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