On March 17, 2009 David McKay plead guilty to possession of unregistered Molotov cocktails, charges stemming from his involvement in the protests against the Republican National Convention last September. Those of us following the case were shocked and saddened to learn of this development.
The State and, in particular, the FBI reached into their bag of dirty tricks to make examples of McKay and his co-defendant Brad Crowder. It is also apparent to us that if this had gone to trial again, the lies of the State's primary informant in the case, Brandon Darby, would have embarrassed the FBI and the prosecution. This would have ruined their case against David and called into question the reliability of informants in past and future litigation. This is the question the prosecution has feared all along.
Before David’s first trial in January the prosecution filed a motion to change the definition of entrapment in the case. However the judge refused to overturn years of legal precedents for the mere convenience of the prosecution in this case. The first trial ended in a hung jury. We have reliable information indicating that it was hung 6-6, with the crucial issue being the question of entrapment. A couple weeks before the March 16 retrial, in another attempt to cover for their informant’s misconduct, the prosecution filed a motion to exclude information about Darby's violent tendencies and his history of using firearms in inappropriate situations. This motion also failed.
During the intermission in proceedings, David’s defense compiled additional testimony that confirmed Darby’s history of problematic and manipulative behavior. Through grassroots appeals, reliable witnesses came out of the woodwork to attest to Darby's repeated incitements to violence, his disruptive behavior and promotion of illegal activities in every organization he infiltrated. As the case of the defense solidified, so escalated the prosecution’s intimidation of both David and Brad. The State was determined to prevent both the exposure of its misconduct in utilizing and supporting a violence-prone provocateur to entrap two young activists, and the precedent of being called out and held accountable for their repressive tactics. The State knew that Darby’s testimony was questionable, if not completely lacking credibility.
The months since David and Brad’s arrest have been hard for both of them, their families and the community. Days before the trial, the prosecution subpoenaed Brad to testify. Brad had no interest in testifying against David. The State then threatened to add two years to Brad’s sentence if he failed to cooperate. The FBI has contacted and intimidated others, including potential defense witnesses, over the past few months in an attempt to disrupt David’s legal defense.
It is likely that David did not want Brad, his close friend, to be forced to choose between testifying and enduring harsher sentencing. Neither did he want his family and loved ones to have to go through the turmoil of a second trial. David’s father has spent large amounts of money, bankrupting his business, to pay David’s legal fees.
The State has never been above entrapping and manipulating activists. As many of us well know, radical movements have long been the targets of these tactics in an effort to criminalize and suppress our dissent. Based on our interactions with Brad, David and the unabashed snitch, Brandon Darby, and through a rigorous examination of the court and FBI documents that emerged during this case, we believe strongly that this is once again the situation.
The Austin Informant Working Group concludes that there is much more to the story than any of us know. From what information we do have, we stand by the statements we have previously made about the entrapment of Brad and David. There are many reasons innocent people plead guilty, including intimidation, fear and exhaustion. The evidence suggests these factors, rather than the truth, controlled the outcome in this case.
This battle has been a hard one. In the end, the State once again had more resources and time than those of us who stood in solidarity with the defendants. Rather than let this hinder our hopes and overwhelm our movements we must learn from this experience and stick together to build stronger and more just communities. We must also recognize our continued resistance, solidarity, and resilience in the face of the forces of misery as victories in and of themselves.
We respectfully submit this statement as a Call to Action to all communities of conscience in support of the struggle against all forms of government repression, and in opposition to all the travesties (named and unnamed) carried out on a daily basis under the guise of the “criminal justice system”.
In solidarity,
Austin Informant Working Group
Texas.solidarity@gmail.com
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