But a last-minute deal in the case of accused bomb-maker David Guy McKay fell apart Monday moments before his retrial was to start. The hang-up? The 23-year-old Texan whose previous trial ended with a hung jury couldn't bring himself to admit the idea to build Molotov cocktails during the Republican National Convention was his and his alone.
The hour-and-40-minute hearing appeared to leave attorneys and the judge exasperated and the defendant frustrated and in tears. While saying he wanted to take responsibility for his actions, McKay steadfastly maintained that part of the blame for building eight Molotov cocktails rested with a government informant who had infiltrated McKay's protest group.
Blaming the informant wasn't part of the plea bargain.
Chief U.S. District Judge Michael Davis said he had difficulty reconciling McKay's new claims with his own testimony at trial in January, when he raised an entrapment defense.
"Did you lie at your last trial?" Davis asked McKay.
"Yes, sir," he replied.
"Are you lying now?"
"No, sir."
Davis, a normally placid jurist with a gentle air, seemed to grow more annoyed as the hearing wore on. At one point, he told McKay, "It's just as easy for me to try this case again as it is to take this plea."
At another point, he halted the proceedings and told McKay that prospective jurors for his retrial were waiting downstairs and that he was going to bring them into the courtroom to start picking a jury.
"OK, we'll get the jury up here," the judge snapped after hearing McKay say yet again that he was willing to take responsibility for some but not all of his actions.
After a brief recess during which both sides tried yet again to reach agreement, McKay again stood before the judge and contended that the informant was "involved" in the conversations to build the Molotov cocktails.
After some more back-and-forth, the judge decided to give defense lawyer Jeffrey DeGree and Assistant U.S. Attorney Jeff Paulsen until 9 a.m. today to either reach an agreement or start the trial.
"My suggestion is we need time to cool off," Davis told the attorneys.
McKay and another man, Bradley Neal Crowder, were part of a group of Texas protesters who came to St. Paul from Austin last summer to demonstrate at the GOP convention. Crowder already has pleaded guilty in a plea bargain; when he did so, he told Davis that he and McKay alone came up with the bomb-making scheme, and they weren't influenced by anyone.
Unbeknownst to them, the FBI had infiltrated the group. The informant's name was Brandon Darby, a fellow Texan and longtime activist who had made a name for himself nationally for relief work in New Orleans following Hurricane Katrina.
But Darby had become disenchanted with some of the more radical elements of the activist community and had become a government informant in another case. When the FBI learned of the Austin group, it asked him to infiltrate the organization and accompany the members to St. Paul.
When McKay went on trial in federal court in Minneapolis in January, he claimed entrapment. While the government must prove a defendant's guilt beyond a reasonable doubt, an entrapment defense shifts the playing field. When it is raised, the defense must prove the defendant had no predisposition to commit the crime before meeting the government agent.
McKay testified that at a meeting on the eve of the convention, Darby came up with the idea to build Molotov cocktails. McKay admitted that he and Crowder bought the components and assembled the devices in a St. Paul apartment house without Darby.
Darby testified that he wasn't at the supposed meeting. Crowder, the only other person McKay said was present, was not called to the witness stand by either side.
During deliberations, jurors sent the judge several notes indicating they were wrestling with the issue of entrapment. After more than 14 hours without a verdict, Davis declared a mistrial.
For the retrial, the government has come up with more evidence, including tape recordings of McKay admitting to his father that Darby wasn't involved in the decision to build the Molotov cocktails, Paulsen said Monday. Also, the government filed a secret motion Friday asking the court to compel Crowder to testify in return for immunity.
Crowder's attorney fought the motion, but after Davis granted the government's immunity request, Paulsen said McKay intended to plead guilty. While details of the plea agreement aren't public, Paulsen and DeGree indicated that in return for McKay's guilty plea to the three felony counts he faces, the government would recommend a four-year sentence.
It began like a routine plea. The judge advised the defendant of his rights and he waived them. The judge read each of the three counts of the indictment, and McKay admitted he was guilty of making and possessing an unregistered firearm (what federal law considers a Molotov cocktail) and possessing a firearm with no serial number.
As he admitted his guilt, McKay stood straight at the lectern in front of the judge, his hands clasped behind his back and his head tilted slightly to the right. His answers were clear and short.
But before the judge could accept the plea, Paulsen had to establish its "factual basis" by getting McKay to admit to the elements of the crime. That's when things went awry.
McKay readily admitted to making the Molotov cocktails — "I am now prepared to accept responsibility for my actions," he said — but when Paulsen began to ask about details of the key meeting when the scheme was allegedly born, McKay hedged.
"I made my own decision to agree to make Molotov cocktails," McKay replied.
DeGree said that McKay's new position was that Darby had been an influence on McKay, "but it doesn't rise to the level of a defense."
"There's no way I can just wipe clean Mr. McKay's testimony because I had it before me. I heard it on the stand," the judge said. "First, he has to convince me that he's guilty of this offense."
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