Did Darby Entrap McKay? No Verdict Yet After 2nd Day of Jury Deliberations

TC indymedia Jan. 30 , 2009

After 10 hours of deliberation spanning two days, the jury in United States vs. David McKay has yet to reach a verdict. The question before the jury is whether or not McKay was entrapped by Brandon Darby, activist turned FBI informant, to possess unregistered destructive devices (count 1), illegally manufacture the devices (count 2), and possess such devices that had no serial number (count 3). For the entrapment defense to succeed, the jury must decide that Darby "induced or persuaded" McKay to commit the crime, and that McKay had no "intent or disposition" to do so before meeting Darby for the first time at the beginning of March, 2008.

After seven prosecution witnesses and three witnesses for the defense, including McKay himself, closing arguments in the dramatic trial concluded Thursday. Since then, members of McKay's family, supporters, media and interested observers waited anxiously for a result in the lobby of the courthouse. Now they'll have to continue waiting at least until the jury resumes deliberations at 8:30 on Monday. (More details in story below.)

Day 1 | Day 2 reports from Felony Working Group - Day 3 and 4 reports to be posted this weekend | Subscribe to TCIMC on twitter by texting "follow tcimc" to 40404 for a message as soon as the verdict is announced

Three times on Friday afternoon, the jury asked the judge for instruction.

The first time, around lunch, they asked about the difference between "suggesting" and "inducing or persuading" an illegal action, and what it means for an informant such as Darby to provide a "favorable opportunity." Both the prosecution and defense agreed that the jury had all the necessary information to come to a judgment on the question of definitions themselves, and Judge Davis instructed the jury as such.

At about 2:30, the jury indicated they were unable to reach a unanimous verdict. The judge instructed them to continue deliberating, saying among other typical instructions for such a situation that there is no reason to think another trial or another jury would lead to a better resolution.

Then, at 4:30, family, media, supporters and other audience members returned to the courtroom for the third time, only to be asked to leave for a sealed hearing. After five minutes, the courtroom was reopened. One juror had sent a note to the judge saying he was in fear of losing his job as a result of being on the jury. Judge Davis stated he would contact the employer to say such a firing would be illegal. The jury also indicated to the judge that they wished to continue deliberating until 5pm and resume if necessary on Monday at 8:30am.

After a tense countdown to 5pm, no verdict was returned and everyone was left to wait out the weekend. David McKay remains in custody.