Between the State and a Hard Place: Statement on David McKay's Plea

from the Austin Informant Working Group

The Austin Informant Working Group is an ad hoc collective of
interested and affected individuals that formed to do research and
media and legal work around the exposure of an FBI informant in the
Austin radical community. The group is also helping to uncover the
lessons about community accountability and security that must be
learned from this debacle. It is not a prisoner support group and
does not speak for Brad Crowder or David McKay.

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