At what was supposed to be the beginning of the retrial on Monday, Judge Davis called potential jurors to line up in the hallway, before reconsidering his position and giving the parties a night to "think it over" and argue the matter again Tuesday. The rollercoaster series of events left many feeling emotionally spent; many hoped that Davis would reject the plea and bring the matter to trial again to prove Darby's entrapment, feeling that McKay had been pressured into accepting the deal - although McKay in court affirmed there had not been any official persuasion for him to do so (but who knows?). A source close to the defense reported that at the original trial, the jury had been deadlocked at 6-6 on the question of entrapment.
Here's what happened on Tuesday:
Shortly after 9 o'clock, prosecutor and U.S. Assistant Attorney Jeffrey Paulsen went to chambers with defense attorney Jeff DeGree. Later they re-emerged entering the courtroom from the main entrance and at about 9:45, Judge Davis appeared. Davis stated that he met with both attorneys, and that he wants David McKay to be honest in his statements. He read the indictment all over again in the same procedure as the day before, and everyone went through the same process as Monday. DeGree began to question his client:
(paraphrasing below, except where in quotes)
DEGREE: what happened at the August 31 meeting after the shields were confiscated?
MCKAY: there was a discussion between myself, Brandon Darby and Bradley Crowder. I earlier testified that it was Darby's idea to make molotov cocktails. But I don't remember who actually brought the idea, and that is the truth. If Darby had not been there, Bradley and I would've done it anyway.
DAVIS: why is that? what was going through your mind?
MCKAY: because we thought it was a necessary tactic, in order for us to contribute something. if Darby was not there or if another person had made the suggestion, we would've followed through. we didn't need darby there.
DEGREE: then what?
MCKAY: i went to wal-mart, then to [248 Dayton] and built the molotovs with Bradley in the bathroom.
DAVIS: it wasn't just you at wal-mart, was it? who made up the plans to have women buy the tampons and so forth? did the women know what they were for?
MCKAY: we were organized in an affinity group, and did not share info outside of those groups. myself, [another activist], bradley and darby had built an AG, but now it was only myself, bradley and darby. we didn't talk with others about what we were doing, but soon they realized what was up.
DAVIS: so you and crowder came up with the plan?
MCKAY: yes
DAVIS: tell me in your own words.
MCKAY: "the concept of making molotov cocktails came from that conversation." i don't have a recollection of whose idea it was. after getting in the van to wal-mart, bradley and i made the plans.
DEGREE: where did the list of supplies come from?
MCKAY: the internet, i believe. bradley went online to find the list. after we built them, the plan was to bring them to the park...
DAVIS: how did you "you make your bombs"? who else assisted?
MCKAY: freia took us to the gas station to buy gas. the women helped buy supplies at wal-mart. after they realized what was up, they had a meeting and contacted us, but we had already made the cocktails. it was just me and bradley making them.
DAVIS: was brandon darby there?
MCKAY: i don't know where he was - maybe at another house. he didn't go to the store. ... to make the cocktails, we put gas in the bottles, then duct taped the tops.
DAVIS: did you lock the bathroom door?
MCKAY: there was no lock.
DAVIS: [he doesn't understand the concept of affinity groups at all.] this wasn't a "library book club," it was more like a "secret cell," wasn't it?
MCKAY: affinity groups set up an information barrier so as not to tell others about tactics and jeopardize things.
DAVIS: what was this based on? [long pause - davis takes an extraordinarily long time to ask this question, about two words at a time between pauses, grasping for words about something he doesn't understand] was it research... done by other groups... that have been.... labeled as.... terrorist organizations?
MCKAY: not to my knowledge.
DAVIS: "it's not a book club!" you've got cells. who came up with all this? was it... "i forget the name of the group" [but he's clearly referring to the RNC Welcoming Committee]
MCKAY: it was decided at our first meeting to form an affinity group. affinity groups are a way of staying safe.
DAVIS: safe from what?
MCKAY: "from getting caught doing something bad."
DAVIS: so you were predisposed to do something bad, and so you set up a barrier.
MCKAY: from the point we formed the AG to the time of the RNC, we simply wanted to keep our information amongst people we trusted, about things like the shields
DAVIS: but what are you protecting from?
MCKAY: cops, informants
DAVIS: why?
MCKAY: because what we were doing may have been illegal, or considered a threat or danger to the RNC
DAVIS: so you knew that before. back up you walked into an affinity group meeting... what was your reason for getting involved?
MCKAY: to be with a protest group. we were willing to be arrested, and wanted someone to have our backs - someone i could rely on
DAVIS: so this AG was not based on nonviolence?
MCKAY: no, it was not ... we understood that we had a great possibility of being arrested.
DAVIS: did you know about other peaceful groups coming to protest?
MCKAY: yes
DAVIS: and you decided to meet up with other affinity groups to infiltrate peaceful, nonviolent groups, to disrupt them.
MCKAY: our goal was NOT to infiltrate, but to meet with others to create a "disgruntled protest"
DAVIS: a violent protest, then?
MCKAY: perhaps violent
DAVIS: you did not come to St. Paul to peacefully demonstrate?
MCKAY: no
DAVIS: you were in the bathroom making bombs - how?
MCKAY: i was in the tub pouring the gas. brad put motor oil in and duct taped the tampon
DAVIS: how many?
MCKAY: eight
DAVIS: then what did you do?
MCKAY: put one in a backpack, the rest away
DAVIS: where?
MCKAY: next to the door [describes where in the apartment]
DAVIS: back up - why have freia buy the gas?
MCKAY: we had no vehicle and didn't want to walk through the RNC area
DAVIS: there would be problems if you walked?
MCKAY: most definitely. we were next to the STP cathedral, and there were constant police patrols
DAVIS: you didn't want to be detected? why?
MCKAY: we were doing something illegal
DAVIS: was Darby with you?
MCKAY: no
DAVIS: Brad Crowder was your good friend?
MCKAY: yes
DAVIS: what does that mean to you?
MCKAY: i've known him since 18, we were really close and hung out lots
DAVIS: when you came to STP, is it correct that you and crowder were leaders of the AG?
MCKAY: um... as i understand it there's not supposed to be a leader - we're all equal. you might say we were leaders of the shield concept. most people who came up with us were not there for the shield idea, though - they were mostly medics and observers.
DAVIS: so any activity with violence was you and crowder coming up with that plan?
MCKAY: our concept involved confrontation with police, but not by using the shields physically. the confrontation would only be by not obeying their orders to move.
DAVIS: we've seen the video of you in the street - you were active and agressive?
MCKAY: yes
DAVIS: Darby wasn't in your ear?
MCKAY: no
DAVIS: you were aware of the number of peaceful demonstrators coming to STP to peacefully demonstrate and voice their opposition to... policies?
MCKAY: my knowledge was limited - i knew people would be there, but that was not who i was associated with or getting info from
DAVIS: did you know your actions would disrupt peaceful demonstrations?
MCKAY: we took steps not to be part of their marches or "green zones" - we made a conscious effort not to run into peaceful protesters. we specifically wanted to not be near the march that went from the capitol to the xcel center, i believe
[DAVIS asks DEGREE to have david confirm the molotov cocktails were unregistered and had no serial number, and he does. tip for the future from the feds: apparently putting a random number on your molotov cocktails might lessen your sentence!]
PAULSEN: you admit you are guilty of the three counts?
MCKAY: yes
PAULSEN: you made them voluntarily?
MCKAY: yes
PAULSEN: you knew it was against the law?
MCKAY: yes... not to this extent.
[Davis asks DeGree to confirm with David that he understand the burden of proof for entrapment is on the government, and that's he giving up forever the right to say he was entrapped. he does.]
Davis asks David the same questions as Paulsen, and once again asks if he was forced into saying anything. David gives the same answers.
Judge Davis then pauses and, in a complete reversal from the day before, accepts the guilty plea. He says there will be a pre-sentence investigation soon, and an interview with a probation officer. Then a date will be set for sentencing, before which motions will be heard on sentencing.
Paulsen points out that in a "crime of violence", pre-sentencing detention is mandatory. The defense doesn't have any exception to this rule that fits, and so Davis orders David back into custody. David slowly takes off his suit coat, his necktie and his belt, takes a final look at his father and supporters in the room, then is escorted out a side door without looking back. It's very sad.
In the hallway, Paulsen is cornered by two reporters, who don't ask very hard questions, but he still acts like a prick - being an assistant US attorney, after all. He's asked if this case gives cause for the FBI to re-examine their use of informants, and he adamantly says no - the guidelines that were in place were used. Paulsen's asked why the conversation outside Hard Times Cafe wasn't recorded, and says that if the case were more serious, it would likely have been, but this case wasn't serious enough. Apparently it's serious enough to seek two trials, apparently engage in shady backroom deals, unfairly threaten co-defendants with additional prison time and force them to testify against each other, have the U.S. marshals create arbitrary rules to intimidate supporters, and most seriously pursue three counts carrying a possible 10 years in prison each.
It seems likely that David will be returned to Sherburne County Jail (a federal holding facility near the Twin Cities) to await sentencing. When the address for writing to him is confirmed, it will be posted on twin cities indymedia (tc.indymedia.org) and the felony support webpage:
http://rnc08arrestees.wordpress.com/arrestees/felony-info-and-support/
Solidarity to David, his family, friends and comrades. When one is in prison, none are free. To the feds: for every one you lock up, there are ten more of us who will see another world - run away now!
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