McKay Trial: Day 1 Notes

The Twin Cities Felony Working Group, who have been doing legal support for those facing felonies stemming from the RNC, is attending David McKay’s trial and posting detailed notes of every day for the world to read. We have been concerned and saddened by many of the developments in this case, and we believe that it is important for the world to know what is going on here. Like many of the cases surrounding the RNC, the details and outcome of this case affect us all, particularly when there are multiple government informants involved.

Bradley Crowder took a plea agreement; he is not testifying at McKay’s trial. David McKay’s trial began Monday, January 26, and is expected to last about a week. It is at the federal courthouse in downtown Minneapolis (300 S. 4th Street), and is expected to last about a week.

[This report is written in a narrative fashion for ease of readability; we are taking verbatim notes throughout the trial and doing our best to reconstruct what was said. All stories and statements are written as the witnesses or others said them and do not necessarily reflect the truth or the opinions of the Felony Working Group or anyone else who helped with this project.]

We have *very* comprehensive and detailed notes that were too long [or potentially incriminating] to post here; if you are wanting more details on anything in particular or have questions, feel free to write us at rnc08felonies@riseup.net.

Stay strong, and we’ll see you in court!

FWG

United States vs. David Guy McKay - Day 1 (1/26/09)

[Before the trial started, David McKay’s father stopped a group of activists and asked us not to be in the courtroom. He said that his legal strategy was one of disassociation, that he wanted to distance himself from people like us and that our presence would threaten that. Some chose to leave at this point; others chose to stay for various reasons, including to take these notes and get them out. We are encouraging people to make their own decisions in this matter, but to dress up and be polite if they do choose to come.]

The judge, Michael J. Davis, began by reading the indictment.

The government is being represented by Jeffrey Paulsen, Asst. US. Attorney for Minnesota, and is being assisted by special agent Christopher Langert of the FBI.

The indictment states the charges (three felonies carrying a maximum sentence of 10 years each): that David McKay and Bradley Crowder, aiding and abetting each other and aiding and abetting others both known and unknown to the grand jury, committed illegal possession of a firearm, illegal manufacture of a destructive device, and possession of a firearm that did not have a serial number and was unregistered with the National Firearms Registry.

The prosecution put forward its prospective witness list; 37 people in total, including five FBI agents from MN and TX, three St. Paul police offers, one BATF agent, one from the Secret Service, one Wal-Mart security manager, and:

Freia Fenelon
Kirsten Baker - Coon Rapids, MN
Brandon Michael Darby
Andrew Darst [FBI informant, aka Panda]

The defense also put forward its witness list, all from TX, including:

David McKay
Emily Coleman
Larra Elliot

[Two others were also on this list; the defense later canceled their appearance.]

The jury selection began and ended. The judge asked the potential jurors if they had read about a case regarding Molotov cocktails and the RNC in the news; many had. Some were excused because they did not feel that they could be impartial because of this. The jurors were also asked questions relating to their feelings about government informants, protestors, and if they had worked or been downtown during the RNC. Once the jury was selected, the court went into recess and then began the opening statements from the court and the defense.

[Opening Statements]

Asst. US Atty. Jeff Paulsen for the prosecution:

St. Paul hosted the RNC - a part of our democratic process, where a party comes to nominate their candidate. The inauguration was the culmination of a peaceful transition of power. Thousands of people came to the RNC, including delegates, the media, and thousands of peaceful protesters. However, a few came with a different agenda - denying free speech to others. On August 31st, David McKay chose of his own volition to make 8 Molotov cocktails. By his own admission, he planned to use them to destroy property, including vehicles used by law enforcement. He had not been apprehended, and he could have caused grave injury to many innocent people and destruction. The charge is possession of an unregistered destructive device. A Molotov cocktail is a homemade bomb, made of empty wine bottles, gasoline and motor oil, and a fuse - sometimes a rag, or a sophisticated system of a tampon attached with a rubber band. The plan was to soak the tampons a little bit later, and light the fuse. Only imagine what happen when the bottle breaks! It is illegal to manufacture any such device without permission and a record made. This is not how McKay made his Molotov cocktails.

Two people were indicted, but Crowder is not on trial. Although he will not be judged here, we will hear about his case.

This is not about politics, people’s political beliefs or their right to protest. This is about one person’s decision to posses firebombs and his intent to use them. The background: David and Bradley are from Texas. In the spring of 2008, the RNC Welcoming Committee - an organization created to disrupt and shut down the RNC - went around to various cities to recruit people to help them with their plan, including coming to Texas. Brad and David became part of a group called the Austin Affinity Group, with intentions to disrupt the RNC and participate in the WC’s goals.

In the summer, they came up with an idea to use shields as a tactic. They built shields similar to police shields. The prosecution described the shields - they were made of stolen orange traffic cones, with strings, eyeholes, and screws protruding out, designed to cause injury. They made 35 shields, and intended to bring them to St. Paul and use them to keep cops at bay while people were “locking down” at the RNC.

They rode up to MN in a rental van with a trailer full of shields. Brandon Darby rode with them, and was ordered to report on any illegal conduct that might be planned. On 8/31, the police found and searched the u-haul van, taking the shields. When McKay learned he wouldn’t have access to his carefully made shields, he got angry. So angry, that he went to Wal-Mart w/ Crowder to get parts for Molotov cocktails. He bought a gas can, motor oil, and rubber bands, and talked 2 female members of the Austin affinity group into buying tampons.

They were staying at Freia Fenelon’s residence in St. Paul. Brandon Darby stayed in Minneapolis, and came to check up on them and find out what they were planning. He then reported this to the FBI. Bradley and David talked Freia into going to the gas station. She will testify that they bought gas and were going to make Molotov cocktails with the gas and that she couldn’t talk them out of it.

That night, they made 8 Molotovs and hid the assembled cocktails in the basement of the building where they were staying.

On 9/1, Crowder and McKay didn’t have shields anymore, but they did what they could to disrupt the convention, along with other members of the Austin affinity group. They were wearing all black, bandanas, elbow pads, and hiding their faces. This was not a peaceful protest - there were no signs protesting the war. They pushed dumpsters and threw trash into the street, broke bottles, and blocked traffic. They went over a highway overpass, and Bradley Crowder threw a road sign onto the freeway. “This was not a protest; it was something else.” They were both arrested. David got out because he had ID on him. Bradley didn’t, so he stayed in jail. David was still angry about his shields and wanted to get revenge, so he came up with a new plan. After the 1st, he wanted to do more. He confided in Brandon Darby that he made 8 Molotovs and planned to use them the next night on police vehicles near the jail where Bradley was, at a security checkpoint a few blocks away. All trucks had to go through this checkpoint to be inspected before they could enter a secure area; it was a highly trafficked area, especially late at night. Darby reported to law enforcement, who convinced him to wear a wire, which he hadn’t wanted to do before. He had been involved in previous cases, and he was valuable as an informant. He was originally going to only be the “eyes and ears,” and he didn’t want to testify or out himself as an informant.

On the night of Sept. 2nd, Brandon Darby had a meeting with David McKay at 11pm outside of Hard Times Cafe in Minneapolis. He was wearing a wire, and FBI agents were listening in. Part of the conversation was quoted:

Darby: “You know, even if they’re duds you can get charged.”
McKay: “I know.”

McKay said that the goal was property damage. Darby asked him what time he was going to do his action and where; McKay said at 2am at the vehicle checkpoint down the street from the apartment they were staying at on Dayton. He explained that that would be a good time to do it, because the bars closed at 4am during the RNC. McKay tried to recruit Darby to replace Crowder in the plan, saying, “Crowder will be angry that he couldn’t get to play this role.” The vehicle checkpoint was a school parking lot that had been temporarily taken over by the secret service, military and police. Darby said McKay’s plan was to throw the Molotovs at vehicles there. More of the conversation was quoted:

Darby: “What if there is a cop sleeping in a car?”
McKay: “He’ll wake up.”
Darby: “What if he doesn’t?” McKay didn’t answer.
Darby: “You mean you could leave the scene of the crime with a cop burning?”
McKay said “it’s worth it if a cop gets burnt or maimed.”

McKay and Darby went their separate ways after the meeting, but Darby tried to keep in contact with McKay via text messages so McKay wouldn't carry out the plan. McKay sent a message to Darby just before 2 am in code - "we can't go to mom's tonight, there are too many ants around the candy bars" - that the action was off.

A SWAT team raided the Dayton apartment at 4:35 am and found the Molotovs in the basement, arresting David and a couple of other women staying there. They found a tampon box, gas can, other equipment, gas masks, and slingshots "used to shoot rocks at cops."

McKay had a plane ticket back to Texas at 9am the morning of 9/3. Instead that day, 2 special agents went to jail, where they interviewed McKay and he gave a full confession, including his and Bradley Crowder's intent to use Molotov cocktails to destroy a jumbotron [used by a Democratic Party group to display video near the St. Paul Cathedral]. The charge is illegal manufacture and possession of firearms (Molotov cocktails) - but the evidence presented will include other evidence about McKay's activities regarding the convention.

Brandon Darby is 32 years old. When he was younger, he was an activist. He has done work on behalf of the homeless, and in the aftermath of Katrina, in tense and violent situations. He was active in anti-war protests, and protests for other causes. Darby was able to be a part of the Austin Affinity Group (AAG) because of his credibility; he was known in the past for his sometimes revolutionary rhetoric. He was a pre-existing informant who was tasked to get information relating to the group's plans for the RNC. He was paid for other cases and for this one - $6000 (approximately) and expenses paid [just for this case]. He is not being paid or benefiting from his testimony here; in fact, he chose not to accept money for security funds. He "believes in peaceful protest" - and in fact pushed the limits of it. He does not believe in violence and doesn’t want anyone to get hurt. "That was part of his motivation to do this."

Paulsen mentions his witnesses - Darby, Freia Fenelon [who lived at 248 Dayton], a bomb squad officer, and other officers involved in the search of the apartment.

In a backpack of McKay's were found a contact lens solution bottle containing flammable liquid and a lighter stick, which were to be used to ignite the Molotovs, which weren't yet soaked in gas while sitting in the basement.

Finally, Paulsen says, in his confession to Agent Langert, McKay never implicated Darby with claims of entrapment or said that Darby encouraged his actions.

[Defense attorney Jeffrey DeGree gives his opening statement.]

"This is a case about a government informant who took it upon himself to make things happen." Darby took advantage of a mentor-type of relationship with McKay, who was the product of a unique family - mother was a model, father a cook. They divorced; he was the subject of custody dispute. He felt his family loved him. When he was a senior in high school and involved in sports, his mom was an alcoholic, and he felt he needed to leave. He moved to Midland, TX to live with his father and met Brad Crowder there. Before long, he decided to move back to Austin.

McKay considers himself self-educated. His Mom’s sister got him a job with her graphic design company - first as a gofer, then an artist. He had a girlfriend, and felt fortunate. But he realized not everyone is so fortunate, and many people didn't feel a responsibility toward them. He felt a need for social change, and decided to see the RNC Welcoming Committee (RNC-WC) speak in Austin about what they were planning.

Thousands of people came to the RNC. Some had good intentions, others were "complete violent wackos... who had nothing but bad intentions." McKay met Darby, who is 10 years older than him, in February at the RNC-WC event. They and others started a new group in Austin - at the suggestion of the RNC-WC.

Brandon Darby was a “larger than life character” in Austin. He did work in New Orleans following Hurricane Katrina after receiving a phone call from a former Black Panther. He brought guns there, declaring that he would bring relief there “by all means necessary.” He was a revolutionary - an enemy of the government. He said that what the government did in New Orleans after Katrina was criminal. He went to Venezuela to get funding for his organization, after Hugo Chavez called Bush "the devil". He was not motivated by doing what was ethical.

At one point Brad and David said to Darby that they would “do anything you asked us.” They looked up to him.

Lots of militant rhetoric from Darby to Brad and David was quoted. For example: “direct action is intense, and any group I will go with will be successful" and "you look like tofu eaters - you'd better start start eating meat" so you'll be able to fight. He also taught them martial arts.

Darby was already an FBI informant at this point.

During a van ride to the RNC, Darby challenged David and Brad to step up. There were conversations where Darby asked about violence, and David and Brad said the RNC wasn't an appropriate place for it. Darby manipulated them into certain types of actions by using guilt, saying they owed it to marginalized people. David hadn't been to many protests before.

The shields they brought with them, DeGree said, were for the purpose of protection and were "almost paper thin." When the shields were seized by police, Darby went crazy and was in their face. He said they shouldn't take that lying down. "Brandon Darby talked about Molotov cocktails; David McKay never did." David did listen to Darby and bought supplies for Molotovs.

David should be found not guilty because the government went too far and he was entrapped. David had to be pre-disposed to making a destructive device to be found not guilty. [Prosecution objects that this is not precisely legally true; the objection is sustained.]

The Molotovs were not used on September 1 - at the protest David went to that day, there were "a bunch of people running around acting like idiots" with no plan and no goal. David didn't participate the second day of the protests, but rather took pictures. Later, he took the Molotov cocktails that had been constructed and put them in the basement, because he knew he was being watched and couldn't throw them away, even though he had no intention of using them. This whole time, Darby was telling him he needed to step up his game.

Darby kept pressuring him, and with a group they went to Hard Times Cafe, even though McKay didn't want Darby to come with. They smoked marijuana in the vehicle on the way from the apartment they had been staying at in St. Paul to Minneapolis. At Hard Times, Darby said he wanted to be alone with David, and took him out back. The conversation was not recorded [only transmitted to FBI agents and other officers in a car nearby via the wire Darby was wearing]. There, David told Darby what Darby wanted to hear, so that he could go to a concert at a nearby theatre and then go home to bed.

The state will make it out like they are heroes, but nothing could be further from the truth. They will say that they acted in the nick of time, before David high-tailed it out of town after firebombing the police checkpoint. "The government's conduct in this case is appalling. Brandon Darby's conduct in this case is appalling." McKay had every opportunity to use the Molotov cocktails, but he didn't.

McKay should be found not guilty because he was entrapped by Darby. "The government is more to be faulted for making those Molotov cocktails than anybody else."

[Court adjourns for the day - End of Day 1]