Saturday, January 31, 2009

Interview with Convicted "Eco-Terrorist" Jeff "Free" Luers

Prison Interview with Convicted Oregon “Eco-Terrorist” Jeff Luers

When Jeff “free” Luers and Craig “Critter” Marshall drove away from Romania Chevrolet in the early morning hours of June 16, 2001 after igniting the wicks of two one gallon milk jugs filled with Coleman fuel, they could not have known that this action would come to significantly alter their lives.

The Eugene, Oregon anarchist eco-activists had placed the firebombs under a row of SUVs in an attempt to bring attention to the disproportionate air pollution caused by gas guzzling vehicles. Neither were aware that Luers had been tailed throughout the day by three plainclothes police since his release from jail earlier that day on a disorderly conduct charge stemming from activities during the Eugene “Seven Weeks Revolt” anarchist conference. The cops lost track of the two a block from the Chevrolet dealership. Ten minutes later, Springfield officers stopped them for a traffic violation. Both were taken into custody by the undercover agents who had been following them. It was later learned that one of the agents was from an anti-domestic terrorist unit. Luers and Marshall were arrested on Criminal Mischief One, a charge that carries about one year.

Damage caused by the fire was quickly put out with a simple fire extinguisher and totaled $40,000 worth of damage. In addition, all three vehicles were repaired and subsequently sold. No human life was taken or endangered, yet one week later Luers was arraigned on nine different felony counts including arson, attempted arson, and manufacturing and possession of destructive devices or explosives. Similar devices were found at petroleum distributor Tyree Oil in Eugene, and three weeks before his trial began, he was also charged with attempted arson of that facility and faced several more charges. By the time of his trial, he had accumulated 13 charges and was looking at serving 100 years if convicted. While no physical evidence was found to link Luers to Tyree, he was offered a deal for 15 years if he would plead guilty to both Romania and Tyree. He held fast and refused. In the end, he was convicted of 11 felony charges and sentenced to 22 years and 8 months with no possibility of parole. Co-defendant Marshall took a “conspiracy to commit arson" and "possession of destructive devices" plea and was released after serving four and a half years. It must be made clear that no part of this deal involved any admission of guilt or implication of guilt on the part of Jeffrey Luers. A later falling out between the two is unrelated to this plea.

In a decision handed down on February 28 of 2008, Luers’ appeal for re-sentencing was heard in Eugene’s Lane County Circuit Court. The new ruling brings his release date to December 2009. Luers originally filed his appeal in January of 2002. The original sentence handed down to Luers in June of 2001 was stunning in a most draconian sense and was clearly politically motivated.

Since the time of Luers’ arrest, the United States has seen an unprecedented dismantling of civil liberties via the excessive reach of the War on Terror. The largest roundup of eco-activists in US history began with the launch of the FBI's “Operation Backfire” on December 7, 2005. At a national press conference in January 2006, then Attorney General Alberto Gonzales and FBI Director Robert Mueller unveiled a 65-count indictment targeting the Earth Liberation Front (ELF) and the Animal Liberation Front (ALF) with the claim that a "vast eco-terrorist conspiracy" was the U.S. number one domestic terrorist threat.

The Animal Enterprise Terrorism Act (AETA) was signed into law by President George W. Bush on November 27, 2006. It was pushed through Congress by wealthy biomedical & agri-business industry groups such as the Animal Enterprise Protection Coalition, the American Legislative Exchange Council and the Center for Consumer Freedom, with bipartisan support from legislators Senator Dianne Feinstein and Rep. James Sensenbrenner.

AETA expands the legal definition of “terrorism” to include activity previously protected as free speech under the First Amendment. The Act’s broad language brings ambiguity to statutory terms used in the offense and definition sections of the law. Such undefined terms as “interfere with,” “profit loss,” and “economic damage” might be applied to the results of lawful boycotts and peaceful protests: “interfering with” could conceivably cover undercover investigations of animal laboratories, Internet postings, email campaigns, or demonstrations and boycotts. Because of this ambiguity, the law arguably does not give a reasonable person fair notice of what is legal, as is required of a criminal statute. This is not resolved by the AETA’s stated exemptions for “lawful boycotts” and “peaceful protests.” Indeed, the elements of those acts may qualify as terrorist acts under the AETA. This brings a chilling effect not only to the work of eco and animal rights activists, but to all dissenters across the board. Luers in fact has never claimed affiliations with either ALF or ELF.

Jeff Luers has become internationally known and supported as a political prisoner, not only because of the length of his original sentence, but also because of his prior activism and the tree-sitting campaign at Fall Creek, Oregon. To some he is a true revolutionary. He also wears the label of terrorist. He has served time in a number of Oregon correctional facilities with the majority of his time spent at the maximum security Oregon State Penitentiary. He has been housed for the past nine months at the Columbia River Correctional Institution in Portland, Oregon. This interview was conducted by this author through a series of letter exchanges during late 2008 and January 2009.

MG-What is the status of your release date? Are you still looking at December 2009?

JL-My current release date is December 16 2009. There is some contention between me and the Department of Corrections about this; the date should be December 15. That is my good time release date. While it is unlikely to change, I could be released as late as June 17, 2010.

MG-What are you most looking forward to upon your release? What are you most apprehensive about?

JL-There are so may things that I am excited about. No more walls is a big one. I think that within my first weeks I’ll find myself camped deep in the woods reconnecting with nature.

There doesn’t really seem to be too much that I’m apprehensive about. Certainly, prison has changed me, but the core of my being is still the same. My biggest challenge I think, is going to be living indoors and paying rent.

MG-At the time that you began your activism, there were a host of eco issues to be addressed. What put you on the path to tree sitting as opposed to other environmental struggles?

JL-For me, tree sitting was all about the direct action. It was a campaign and struggle that was local that I could have a direct impact on.

The end goals of many struggles are completely beyond our reach. Not that we shouldn’t still struggle to reach those goals, but they translate into petitions of redress. We must concede that we are powerless to create change ourselves and end up asking others to do it for us.

Direct action isn’t like that. The power to create change or act on a belief system rests completely in our hands. It takes power away from the powerful and puts it in the hands of the powerless.

I got involved in old growth defense because I was physically capable of stopping the logging of that forest. And anyone familiar with the Fall Creek/Red Cloud Thunder campaign knows that we did not politely ask for that forest to be protected. Nor did we protest gently.

MG-What moved you to follow through with the arson at Romania? Did you feel that there was any other alternative at all to raise awareness about global warming? And, what was running through your mind when you set flame to incendiary?

JL-Our world is being physically and geographically altered by the greenhouse gasses that we’re putting into the environment. Local and global climates are changing. These events have been happening for decades, but it is only now that this makes news.

Industry giants and corporate hooligans are making millions of dollars destroying the planet I love. They are putting people’s lives at risk.

You ask me what moved me to follow through with these actions. I ask, what has not moved others?

There were plenty of other alternatives to raise awareness about global warming. Al Gore did a great job. He’s also a former vice president and millionaire. It’s harder to ignore him or shut him up though many tried.

Things have not changed much since the time of kings. Poor people are still ignored. Only when the peasants revolt does the king take notice.

Do you really want to know what I was thinking when critter and I lit the incendiary devices? Okay. I was thinking, “Don’t set yourself on fire.”

MG-You and critter both followed through in carrying out the arson action together and you were immediately arrested together after this action. Because of his plea, he was released after serving a four and a half year sentence in contrast to your original sentence of 22 years plus. What do you have to say to this? (Any comment for sake of clarity to the community regarding your falling out with him?)

JL-Critter and I talked extensively before he agreed to take his deal. He was firmly prepared to go to trial with me had I asked. I wanted critter to take the deal. At the time, they offered him five years. They were offering me fifteen. By taking the deal he in no way had to cooperate. Hell, he wouldn’t have even had to acknowledge guilt.

The falling out he and I had is personal and between he and I. We have since made up. I am very much looking forward to seeing my old friend.

MG-How effective was your action at Romania, and is there anything that you regret?

JL-In some ways the Romania action was and is probably one of the most effective direct actions taken in the United States; I know, very modest of me, right? Our action changed the dynamics of clandestine actions for the earth in this country. Afterward, Romania car dealerships all over the world were targeted.

Suddenly, it was no longer just industry being targeted but the culture that is responsible for global warming.

And yeah, I do have some regrets about Romania. After all of the [prison] time that I got for that little fire, I wish I’d done something bigger.

MG-Your original sentence by any fair and rational definition was brutal and extreme, particularly in contrast to punishment meted out to rapists and other violent offenders, many of whom you saw and see released while you sit in a concrete cage. The effect on you has had to, at times, fill you with rage. What have you done to channel this rage?

JL-I’ve never been angry about my sentence. What am I supposed to feel rage toward? I already know that the system is corrupt and unjust. I already know that property is valued more than life. I know that an act of dissent will receive harsher punishment than crime. I was angry at those things when I took action. So I can’t complain that [this punishment] happened to me. In some ways, I’m glad that they gave me 22 years and called me a terrorist. It not only proved that I was right about the things that I was saying, but it also showed that direct action really truly is a threat to business as usual.

The punishment has only served to further my dedication as demonstrated by my continuing struggle from inside these walls.

MG-Operation Backfire hit the environmental movement hard, in the NW particularly. You saw former comrades given lengthy prison sentences based on the testimony of other former comrades who rolled over for the feds. The Animal Enterprise Terrorist Act was signed into law in November of 2006. Clearly, the criminal factory farm corporations and capitalist industry polluters have it made in the shade as the government protects their interests at all costs. First, what do you have to say about these draconian measures and second, do you have any words of encouragement for activists who have fallen to fear and retreated to the shadows?

JL-Fear is the enemy of freedom. We fail to act because we fear the cost of living free. We live in a police state. The U.S. may be the kinder face of fascism, but it is still a fascist state. Yes, we have elected a man who may bring change, but the system that he upholds will still be a capitalist, imperialist monster. If anyone thinks that he isn’t going to protect the corporate interests at the extent of the people, they are wrong. We live in one of the few countries in the world where corporations are granted and guaranteed the same rights under our constitution. By design, our government is structured to uphold that rule of law.

I would rather be in prison or dead than blindly submit to a government I know is corrupt and wrong. I would rather dare to live free and fight against injustice than cower in silence and despair. I think many people feel the same way. We just have to be smarter in how we speak out and in how we act.

Oppression is designed to break the free spirit of the people and force them to accept their lot. The whole nature of and desire for freedom is to break free at all costs.

There is a world beyond this one just waiting to be created. The right to clean air, water and food is a birthright. Freedom is ours by right of birth. It cannot be granted by any government. It cannot be bought at any price. It is ours and we must only choose to wear its mantle.
Jeff Luers CRCI Oregon August 2008Jeff Luers CRCI Oregon August 2008
MG-You’ve kept us update via your Dispatches from prison. In your last one you wrote that you were tired of fighting. This is a right that you certainly have earned. You also wrote that you were not giving up, but are instead looking at different ways of fighting. Can you touch more on this?

JL-I’ve spent the last twelve years on the front lines. Sadly, nearly nine of those have been in prison. I want to focus on my life and family when I get out.

I’ve seen our failures at struggling against the symptoms. I’d like to focus on creating the cure. Direct activism and militancy is a mainstay of the struggle for social and environmental justice. Unfortunately, creating alternatives to today’s mess has not been. That is where I would really like to work and bring really hands on changes and alternatives to the table.

MG-One of the more chilling Dispatches from you appeared online on Portland Indymedia in September of 2006. In it, you wrote about the more brutal aspects of prison life. In the space of a few weeks a guard had been severely beaten in the yard, fights in chow hall were averaging one a week and a man lay dying for five hours in front of your cell. You wrote, “I can watch a man get stabbed in the neck and keep eating. I can pretend to not see a man lying helpless in his own blood (along with everyone else on the yard). And I can watch a man die and be completely unmoved.”

When you learned that the guy you watched die was a child molester, you wrote that you were glad that he was dead. While a few folks who commented seemed to understand what it was that you were trying to convey, one chastised you for feeling glad. She wrote that this was a “sad turn of events for you,” and that if anyone should have compassion for another human being, it should be you.

Clearly, prison is a dehumanizing experience. While I understand that it is not your job to clarify your feelings, how would you respond to the woman’s comments?

JL-This is the first time that I have seen these comments [I mailed Jeff a print out of the Indy post]. It is obviously a little difficult to respond to something I experienced years ago.

My friend Randy Cross-who took his own life no to long after-killed a man. I watched that man die. I felt nothing as I did. It was simply just another day in prison.

Many people cannot begin to grasp the violent life of a max security prison. The threat of death is in the air everyday. I lived that life without cowering from it. When threatened with violence I responded in kind. When threatened with being stabbed I had my own shank to turn to.

Every one of my friends had a weapon hidden somewhere. Prison is a war zone. We struggle for territory, space, to avoid becoming a victim. Right or wrong, that was my life. I fought, I stood my ground, and I survived.

When I learned the man Randy killed was a child molester who admitted in court that he raped and used a foreign object inside a little girl, a girl who wasn’t even yet twelve, I was glad the monster was dead. There are several monsters that I would like to see dead and not all are in prison. Some start unjust wars.

I’m not sorry the guy died. And I don’t need to justify or explain that feeling. What I am sorry about is that I can watch that level of violence and be unaffected by it. I’m sorry that society makes monsters that must be killed.

MG-What do you think the world will look like to you when you hear the steel door close behind you for the last time and you walk free? What do you think you will look like to the world? How will you see yourself?

JL-I think the only difference is that the world and I will both be a little older.

To learn more about the case and work of Jeffrey Luers, go to:

Friday, January 30, 2009

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.

Thursday, January 29, 2009

David McKay Trial Report: Days 1 and 2

Infoshop News Jan 29, 2009

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 what happens every day for all 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 the Texas Two case affect us all, particularly when there are multiple government informants involved.

These are the reports from the first two days of the trial; there will be more to come. Bradley Crowder took a plea agreement; he is not testifying at McKay's trial. David McKay's trial began on Monday, January 26. It is at the federal courthouse in downtown Minneapolis (300 S. 4th Street), and is expected to last about a week.

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 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]


Tuesday 1/27- Day Two of David McKay trial

[Tim Sellers, FBI agent from Austin, Texas with the Joint Terrorism Task Force was the first government witness. Sellers started under questioning from Asst. US Attorney Jeff Paulsen.]

The FBI began to pay attention to this case when the RNC Welcoming Committee came to Austin as a stop on their tour, which the FBI saw as an attempt to "draft others into violence." They sent a source there to find out about plans for direct action and violent protest. Brandon Darby became known to the Austin FBI office on Nov. 26, 2007; he was already an informant who was working on at least one other case. The FBI had previously been concerned about him because of his previous activities in New Orleans and a trip he made to Venezuela in 2006, but agreed to work with him. He had been self-employed in the concrete business, but was paid for his work on this case, as well as other cases that Sellers stated "it was best not to talk about right now." Darby was paid $6500 plus reimbursement for expenses for the RNC case. He received death threats and was offered an additional $5300 for a security system for his house; he declined.

Brandon Darby was tasked by the FBI to go to a meeting at Monkeywrench Bookstore to identify individuals going to the RNC; if a group was formed, he was told to get inside, but not to be a leader or to become too involved. The Austin Affinity Group (AAG) was formed at a meeting at a cafe on March 6th, which Brad Crowder and another person invited Darby to. 5 members of the group were from Austin, 3 from Houston. Darby was tasked by the FBI to become involved. The group planned to make shields for protective and defensive purposes at the RNC; they made 35 of them. Darby took and gave one of the shields to the FBI.

Brandon Darby then went to the pReNC 5.3 meeting in the Twin Cities; Sellers said that he was "vetted" by members of the Welcoming Committee in the vouching process to get in and was therefore made a WC member himself. Darby was told to go to the RNC; he was given level 3 security clearance for "otherwise illegal activity," which allowed him to legally trespass and conspire to commit property damage. There were limits - he was allowed to be around individuals, but was not allowed to encourage them.

The AAG left Texas in a van on 8/27 and arrived in the Twin Cities late on 8/28. Attached to the van was a U-Haul trailer that contained the shields, gas masks, and batons. The shields were of concern to law enforcement because they could be used against them. The shields were seized by the police. David McKay was "upset" because of the time, effort and planning used to make the shields. Brandon Darby informed the FBI that a few hours after the shields were taken on 8/31, McKay and others went to Wal-Mart. The FBI didn't know what was bought there, but they went to the store the next day and obtained this information from the security manager via video surveillance records and receipts. (The security manager who gave the FBI this information is on the prosecution's prospective witness list.)

Paulsen plays video of the surveillance tapes from Wal-Mart, which show several people from Texas - all of whom Sellers pointed out and named - exiting the van from the parking lot and various views of them walking into and through the store. They showed video of McKay walking in the store while holding a gas can and overhead views of several people at the checkout counter; Paulsen asked Sellers to point out the individuals by name and the items bought, which included tampons, bolt cutters, and "lighter sticks." Paulsen then showed several different receipts for what all of the individuals concerned bought; McKay's was for motor oil, earplugs, a gas can, rubber bands, a mouth guard, a pad set and a helmet. Video was then shown of them exiting the store, carrying bags of their purchases, and getting back into the van.

McKay and Crowder were staying at Freia Fenelon's apartment on Dayton Ave. near downtown St. Paul. Brandon Darby stayed elsewhere, in Minneapolis. The FBI had concerns about the items that were purchased at Wal-Mart, so they "got busy" and spoke to Darby to "get him back in the group" for information on their plans.

Video was played of the AAG's activities on 9/1 at the RNC - this was a youtube video "posted by a person sympathetic to the group" that portrayed the black bloc running to block delegate buses and throwing a dumpster into the street. Sellers identified McKay and Crowder as members of the bloc. Darby was there, but not throwing stuff, damaging property or encouraging others to do so. Darby did take a video that day.

McKay and Crowder got arrested that day; McKay got released later that day because he had ID, but Crowder didn't, so he was "held for the duration." The FBI was still concerned about the Wal-Mart purchases, so they asked Darby to find and meet McKay to find out the plans for the stuff. Darby did so, and reported back to the FBI that McKay had made 8 Molotov cocktails with help from Crowder on the night of 8/31. They were made and stored in the basement of the Dayton apartment, and Darby had been nowhere near there. The FBI had concerns about the info Darby provided them about McKay's plans; McKay "intended to target a law enforcement facility nearby" by throwing Molotovs.

On the evening of 9/1, there was a meeting between Darby and McKay. Darby wasn't wearing a wire. The FBI wanted more evidence and spoke to Darby about the importance of "overhearing" conversations via a recording device or transmitter. Darby agreed to wear such a device.

Darby had another meeting with McKay on 9/2 at the Hard Times Cafe in Minneapolis. Prior to this meeting, the FBI met with Darby and gave him a wire, which transmits via radio. Once a wire is on the person wearing it can't control it or turn it off and on - it just runs until the battery dies. Agents Sellers, Langert and three other officers were in a car nearby listening to the video, not recording but taking notes.

McKay planned to leave the TC next morning on a plane to Austin at 9am.

In the discussion outside Hard Times, McKay said he made 8 Molotovs and was intending to use them against police vehicles at a checkpoint near 248 Dayton. McKay specifically told Darby about the construction of the Molotovs, and he said that it would take a minute for the cops to realize they were being firebombed. He chose 2am because it was quiet, and was worried that "Brad would be made someone took his role." McKay was 99.9% confident in the devices themselves, but concerned about getting to and from the location. Darby asked McKay if he could leave the scene with a cop burning or dying; McKay said yes, and that it was "worth it if a cop gets burned or maimed." Darby: "What if a cop is sleeping in a car?" McKay: "He'll wake up." Darby: "What if he doesn't?" McKay didn't answer. Darby asked if anyone else knows; McKay replied yes, that another activist knew and was upset about it. McKay says the decision was made for him to go ahead because the cops took their defensive things, and that symbolism was the reason for the action - it's not about the cops, it's about the way we live our lives. it's not about ego. he was willing to make the sacrifice.

Darby asked McKay if he was sure he wanted to go ahead, and McKay replied that he was. Darby was not encouraging him. Law enforcement wanted Darby to stay close to McKay; surveillance around McKay and 248 Dayton became constant. Darby did not accompany him back to St. Paul.

[Government introduces series of text messages into evidence - the next day they said they had "forgotten" some and added them into the record - these have been added here]

1:31am Darby: "what up, butter cup?"
1:43 McKay: "too many ants around the candy bars, not going to mom's tonight. serious concern. too hot. will update in 1 hr"
1:49 Darby: "chill, it's fine, normal feeling to have when you haven't seen family in a while"
2:13 Darby: "why do you keep half calling me. you are a mo fo."
2:26 McKay: "Yeah I'm just not feeling the vibe on the street."
2:26 Darby: "I guess I'll just have to whip you with a wet noodle when I see ya, you butthead. text me when you can"
(later) Darby: are you ok
Darby: "you be trippin. all jimmy hendrix style and shit"
Darby: "it's your call. I support you making whatever choice you are comfortable with. Be proud of yourself for your work and take a chill"...
Darby: "it's ok, don't get crazy, just communicate" ... " police and demos can be traumatic." asks to move on and talk about other things. "i'll start: how bout them yankees?"
McKay: "word. talk to you in the am for more details."
Darby: ... "hope to see you before your flight"...
Darby: it's all good, sometimes it's best to fight another day. you'll wake up and feel bad - it's ok, i'll support you.
Darby: "you asleep yet?"
Darby: i can't sleep, let's go eat at an all night diner or something.
[this is a partial transcript - paraphrasing if not in quotes. in total Darby sent at least 15 text messages in this stretch; McKay only sent 3.]

[Defense Cross-Examines Sellers]

Sellers was with the FBI for only 2 years and was tasked to help infiltrate groups " of interest." It was his idea that Darby could be useful. Darby had approached other law enforcement officers about informing and was given Sellers' contact. Sellers did a background check on Darby and found lots of info on the internet as well, which led to concerns regarding his previous activism. Sellers is asked about the ties to former Black Panther Party members and if this gave him concern regarding terrorism: "No." He's asked about Darby's extensive interviews and statements the media - he is aware of some and not aware of others. Sellers underwent 19 weeks of training before becoming an FBI agent, some of which involved the use of sources. He did not get training on informing, however. Neither did Darby.

Sellers wrote reports about Darby's meetings, but only included what the others at the meetings said - not what Darby said. Darby's emails to Sellers were kept in a file, but not included in the reports. One email, written after the first affinity group meeting, included statements made by Darby like "I'm going to shut this fucker down" and "any group I go with will be successful." Darby said/wrote that "process is developed by working together, not by sitting down like lawyers to work it out first." He said he "wasn't there to fuck around - direct action is intense, and we can all expect to have violence used against us" and that they will "put us in jail with people who will ass-rape us." He told Crowder and McKay they looked like a bunch of "tofu-eaters" and needed to "start eating meat and bulk up" so they could fight. Darby taught techniques to use in a fight, such as head-butting an opponent by surprise.

At the end of the first meeting on March 6, Darby proposed and the group agreed to meet every week, at least for the first month, although the others wanted to meet less often. Darby then sent a 6-7 page email to Sellers. Sellers talked to Darby about it and the emails got considerably shorter after that.

Sellers said that some Texas activists were of interest to the FBI before this investigation started. Also, he confirmed that no conversations were recorded and only the one behind Hard Times was transmitted. Sellers was the only one in the car of agents and officers taking notes to that conversation. There is no transcript. The texts between Darby and McKay were forwarded immediately to Sellers.

The FBI gave Darby several payments: $1500 on 12/18/07, $1000 on 12/28, and $2000 on 1/8/08, all related to a different case; $1500 on 4/4 and $1000 on 5/8, both of which may have been related to both cases; and $750 on 5/14 after Darby attended the pReNC 5.3. Darby was also reimbursed for various expenses, including the trip to the Twin Cities, but Sellers doesn't know the amount. Also, Darby was paid $5000 for this case in October of 2008, making a total of 11,750 plus expenses. [Darby testified later that he made $12,500 plus expenses for his involvement in multiple cases.]

Darby was recently in the media about this case and Sellers became aware of this "after the fact". The FBI "encouraged against" Darby doing interviews, but Darby did it anyway.

[government questions Sellers on redirect]

Sellers says the press sought out Darby, and that the press figured out he was an informant because of his public letter [posted on]. Sellers talks about Darby needing to not be looked like as a leader, but also to be playing along. Darby did not report any "stronger language" after the 3-6 affinity group meeting. Darby wrote in an email, "Brad stated he would take orders from me," so he told him he would not be his boss. Darby told Crowder that he needed to be careful, or the government could charge him regarding the shields. Crowder wasn't concerned because charges like that usually don't stick. Darby agreed, but told him again to be careful.

On June 8, Darby wrote in an email to Sellers, "It is is my hope that the FBI places enough eyes and ears for me to get away and move along with my life." He wrote that the activities of the AAG "profoundly offend me."

Sellers says his notes of the conversation outside Hard Times are accurate and that he consulted with the other agents/officers in the car to verify their accuracy.

[defense cross-examines]

The defense asks about the guns Darby took to NOLA - an AK47 and a couple handguns. Sellers checked to see if they were legally registered. The defense quotes Darby talking about willingness of activists to carry guns; Sellers says he doesn't recall the quote.

Darby wrote in an email that he told Crowder that he "needed to call me daily and email me update" about their plans after Darby was instructed to "stay close" to the AAG and ask for daily email updates.

[Sellers steps down and the prosecution calls the next witness - Freia Fenelon.]

Fenelon is 20 years old, graduated from high school in the Twin Cities and works in the service industry in St. Paul. She lived at 248 Dayton Ave in St. Paul during the RNC, in a fourplex in which she had the attic apartment. Brad Crowder and David McKay stayed with her after getting in touch through a mutual friend from Texas. Her friend Kristin Baker also stayed in the apartment a lot. Fenelon looked very uncomfortable on the stand - as if she didn't want to be giving the testimony. The Texas folks arrived late on Friday August 29, in a white van, with "a bunch of people [she] did not know". One of them was David McKay.

On August 31, Crowder and McKay asked Fenelon to go to a gas station, telling her the van they came up had run out of gas. Fenelon agreed; she did not know they went to Wal-Mart, except for seeing Wal-Mart bags in the apartment later. They went to the Snelling and Minnehaha Super America, and Fenelon paid for $20 of gas in her car. Crowder or McKay said they also had to get gas, so she parked and stayed in the driver's seat as the boys got out. Fenelon saw the gas can prior to leaving, and assumes they filled it up even though she didn't see the pumps from the car. She then drove the others back to her apartment close to midnight.

Fenelon doesn't know what they did with the gas. At the apartment, they went up to the roof and started smoking - "cigarettes" - and she asked what was going on, needing to know what was happening in her apartment. They told her they were planning to build Molotovs to use at the RNC, to throw them to scare people and make a general statement. Fenelon said that she understood where they were coming from and her passion for the movement, but that there was no reason to hurt people and using violence was the wrong way to make change. McKay and Crowder responded that they just wanted to do something and let people know that they were against the RNC; Fenelon says they seemed desperate and hopeless.

Fenelon wasn't there when the Molotovs were made, but she went down to the basement with McKay to hide them. After the raid, she didn't talk to the cops or FBI Agent Langert because she was scared and didn't want to get herself or anyone else into trouble. Instead, she "covered from them for a while."

[Cross-examination by defense]

McKay and Crowder didn't say they intended to throw the Molotovs at cop cars or cops, but rather just to scare people. Fenelon saw Brandon Darby at the apartment when he came over and talked to McKay. McKay stayed there on Monday (9-1) and Tuesday (9-2) and went to bed late. Darby never stayed at the house, saying he was allergic to cats and therefore didn't want to be there. Crowder and McKay never said that they were being encouraged by anyone, she said.

[Fenelon steps down and looks like she feels terrible.]

[Prosecution calls Brandon Darby to the stand. He takes upwards of 5 minutes to come into the courtroom.]

Darby is 32 years old, born in Pasadena, TX, where he got a GED. He's also taken college and certificate courses (including an EMT course), and currently is working in legal aid for a civil attorney in Austin TX, "learning how to be a legal assistant", saying he wants to go into law. [An Austin Chronicle article said he wants to go into law enforcement.] Before that, he had his own business doing concrete staining.

His first involvement in activism was around medical marijuana and addiction issues, and he worked with a needle exchange van in an "act of civil disobedience." He became "very concerned with political prisoners in the US" and worked with refugees and the homeless. He "reached out to people in bad spots." After Katrina, he went to NOLA with scott crow to look for a friend, James "King" Wilkerson," a former BPP member who had been in prison for 25 years. Darby bought a boat and snuck into NOLA illegally, "in a very intense way." The mission failed because of the violence from police and military. Darby was not satisfied with the government response and was "VERY critical."

Darby and crow went back to Austin and got a call from Malik Rahim, saying the black NOLA community was living in fear because of armed white militias roaming the city. Darby and crow bought guns - an AK47 and two pistols, one for Darby and one for Crow, at Cabela's. They never fired at anybody, and were careful not to have them in certain situations around Rahim because of Rahim's prior felonies.

Later, Darby went to Venezuela to get help for people in the 9th Ward, but failed. Darby says he was not working for the government then (in 2005), but that in late 2007 he began working with FBI Agent Tim Sellers on a case unrelated to this one. Sellers later asked him to go to a meeting at Monkeywrench Bookstore in Austin where the RNC Welcoming Committee was presenting on February 26, 2008. Darby said he "didn't fit in" and "felt uncomfortable" there, and that he bought a book beforehand as a pretense for being at the store and was then invited to the meeting. The two men there from MN were not talking about "coming to protest," but talked about stopping the RNC. Darby didn't agree with that, referring to the RNC-WC as "one group of people who thought they were right who were out to use a variety of tactics to stop others who they thought were wrong, and violate their constitutional rights." [He said this sentence in a very fake-sounding, singsong way, failing to keep a straight face by the end.]

The meeting talked about zones - "blue, yellow, and red" - in which red was for property destruction and "fighting cops", yellow for locking down, and "blue" for staying safe. Darby didn't know McKay then, and "had maybe seen" Crowder before. Others present were a mix of people he had seen before and those he hadn't. Darby reported all this to Agent Sellers, who gave directions on what to do next. Darby got a phone call from Crowder about a followup meeting. Darby didn't call Crowder himself and didn't know McKay; Crowder proposed a meeting along the lines of what the RNC-WC proposed to form "infinity groups."

The meeting happened a week later between Darby, Crowder, and another Austin activist. This was the first time Darby remembered McKay - due to his body structure, Darby thought McKay might have been an informant himself. At the meeting, they had a go-round of what they wanted to do at the RNC. Crowder said he wanted to do "red zone actions" and was willing to get arrested. McKay "had a video idea" to make shields; the other activist stated that this event wasn't something to risk possibly going to prison over - "it wasn't NOLA." Darby said they would face intense police and prison violence. He needed to provide intelligence on one had and fit in on the other - he "had trouble balancing those roles" but wanted to prevent bad things from happening. He made comments about actions to the effect that he wanted to shut down the RNC and be successful in order to "keep access with the group." He claims the group expressed what they wanted to do prior to his involvement.

Darby reported all this to the FBI, which asked him to stay involved and go to the pReNC 5.3 in May in the Twin Cities, which Darby did. McKay didn't come, but Crowder did. The meeting put on by the RNC-WC was very detailed and when Darby got back to Austin he reported back about it to Agent Sellers immediately.

Darby soon learned of a plan in which Crowder and McKay wanted to make shields; Darby says he had no part in making them. Darby mostly spoke with Crowder, and less with McKay prior to the RNC, but that McKay's plan was to use the shields as part of a red action to allow people who were participating in yellow actions time to lock down.

[Prosecutor brings out one of the shields as evidence]

Darby says McKay used a slingshot to put a crack in the shield in question to test the plexiglass window. Darby says he only saw the shields once in Austin, when someone from MN came to McKay's house and they (not Darby) and others practiced blocking cops with them. Agent Sellers asked Darby if he could obtain a shield, and Darby gave the story that he would test one to see if it was heat resistant to obtain a shield from the group. He was given one with shorter screws; later the shields were made with longer screws - McKay felt that cops would get cut if they pushed through, but another activist was only worried about the activists themselves getting cut.

The FBI asked Darby to go to the RNC with the Austin Affinity Group. Darby was accepted in the group and asked for clearance from the FBI for otherwise illegal activity, including legally trespassing, but not resisting arrest. Darby was worried about being caught up in a mass arrest situation because then he "would have been of no use" to the FBI. This clearance was given. Darby was told by Sellers not to take a leadership role, and claims he didn't.

Before the RNC, Darby rode to the TC in a van with the u-haul trailer, containing shields and personal belongings including slingshots.

[Government introduces pictures of the van ride from McKay's camera; Darby identifies the people in the photos].

In the TC, Darby stayed in Minneapolis, but Crowder and McKay with Freia Fenelon at her apartment on Dayton Ave in St. Paul. He never stayed there because of his allergy to cats; he "believes" she had them. The first time Darby knew about the Molotov cocktails was after the trip to Wal-Mart by Crowder and McKay when Darby got a text message from another activist saying that she "needed to talk." Others in the group were mad after the Wal-Mart trip, knowing that Crowder and McKay wanted to make Molotovs. Darby reported this to the FBI, which replied he needed "eyes and ears" confirmation that it was true.

On September 1, Darby participated in a "black bloc episode" as part of the RNC-WC strategy; Darby only took video, however.

[Gov't introduces video taken by Darby, over the defense's objection of irrelevance.]

Darby identifies McKay several times in the video, which includes people throwing objects onto the freeway and dumpsters being pushed into the street. Darby doesn't know "what they were trying to prove."

[recess; court resumes. Prosecution resumes examining Darby.]

On the evening of Sept. 1st 2008, Darby had a meeting with McKay on the roof of the Dayton avenue apartment. Darby recites the basics of the conversation he had, that McKay had confirmed that he'd made "shrimp cocktails", equal parts tomato juice, gasoline, and motor oil. McKay had pointed in the direction of the targeted parking lot. Brad and David had airline tickets so they could get out of MN quickly. McKay said Brad would be mad but he needed someone to take his place.

Darby reported the conversation to the FBI and agreed to wear a transmitting device by the next day. He'd met up with David and others at the Dayton Ave. residence. He'd made an excuse to leave and put the wire on. He drove with several other individuals, including two he didn't know the names of. Darby said one of the individuals had been skeptical of him, asking who that person with the bandanna was and saying she was on probation. The attention she gave Darby made him uncomfortable. They drove to a café he couldn't remember the name of.

Darby met outside with McKay. Special agents Langert and Sellers were listening.

Darby says he warned McKay of the consequences of using the Molotovs during this conversation, saying (to paraphrase in brief) "you have to willing to go to prison for a long time if you get caught. I am a revolutionary but I don't think there is any shame in backing out now and I wouldn't tell anyone that you backed out." Darby says McKay claimed he still wanted to use them. Darby says he asked McKay, "What if an officer gets hurt?" to which McKay responded "It's worth it if an officer gets hurt." A few other things were discussed.

Darby says he did not encourage David, says that he did everything short of telling him that he was working with the FBI to discourage him from using the Molotovs. After they left the FBI's plan was for Darby was for Darby to stay with McKay to make sure that nothing happened while the cops got a warrant and could collect evidence. They went to a theater, where Darby departed from McKay against the FBI's request. Darby said he was nervous. They were to communicate by text message.

According to Darby, McKay said he wanted to use the Molotovs at 2am, not 4am as previously planned,but he was not sure why this changed. Darby said he went back to the house where his tent was. He received a text message from McKay in code- "too many ants around the candy bars, it's too hot, I'll call later." Darby said it was code for too many cops around where the Molotovs were allegedly to be used.

Darby said he was in constant communication with the FBI throughout the whole trip, including the drive up.

After Darby told the FBI about the Molotovs, they told him to stay with McKay. He says they asked him to make sure he couldn't slip out and use them. In relation to the text messages that Darby sent, he says he feels they were jovial and kind - pretty hands off, and supportive of whatever decision McKay would choose to make. He says he hoped that McKay would "flush them down" and that he wouldn't go to prison.

[Cross examination by defense]

The defense asks Darby about his history of protesting. Darby says his first protest was probably at a DEA office. Other things he's been involved with include the Iraq war, in multiple ways of protesting. Multiple occasions he has protested in New Orleans. He feels helping people in New Orleans was an act of protest. Darby says he's also been involved in anti-KKK activities. The defense questions him about an anti-war protest in Austin where Darby was arrested, and questions Darby about a letter to the paper Darby had written after his arrest. The defense quotes from the article and Darby agrees that quotes read were things he'd written— e.g., "Obedience has not ever brought change. Murderous government, we are all guilty". The defense questions Darby about a protest at Halliburton where he was also arrested.

The defense turns to New Orleans and questions Darby about Robert "King" Wilkerson whom he knew, and Malik Rahim who he met after Katrina. scott crow is mentioned as being someone who Malik Rahim initially contacted. Darby says he made two attempts to rescue King and was successful the second time. Darby bought an AK-47 and another gun several days before going to New Orleans specifically to bring to New Orleans. The defense reads quotes from a book, Post-Katrina Portraits, about the aftermath of Katrina in which Brandon Darby is quoted about bringing guns and night vision equipment to NOLA, and his militancy; Darby says he was misquoted in the book. The defense questions Darby about his feelings on carrying guns. Darby says in a situation that was exactly the same as post-Katrina NOLA he would feel it was appropriate to carry arms but he couldn't imagine the same situation occurring again. The defense asks Darby if he feels it would ever be appropriate to take up arms against his government, to which Darby says no. Darby agreed he planned to shoot his way to people who were drowning.

There are more questions about Darby's intent to use the guns and where they were kept in New Orleans. Did he bring them into King's house? Darby says they were kept in a car outside King's house.

The defense asks Darby about Common Ground and about their goals--were they trying to restore neighborhoods and provide food, homes, and medical care? Darby agreed that was in part the work he did. The defense asks Darby about how many interviews he gave. Darby says he was interviewed frequently because he was the spokesperson for the organization. Darby agreed he'd said that what the government did in Katrina was criminal. The defense asks Darby more questions about positions he has taken before. "Did you not claim that black men were injected with syphilis?" He did. The defense brings up Darby's past positions on the atomic bomb and the government dumping toxic waste on reservations. The defense brings up statements Darby has made about the government's handling of Katrina. Darby's answers to most questions are along the lines of, "at one point I said that, at one point I believed that." Did Darby ever associate with people who claimed that what happened in New Orleans was genocide? Yes, he says, adding that Common Ground was a large organization with many viewpoints. The defense asks Darby how many speeches he has given? Many, Darby replies.

The defense brings up Darby's trip to Venezuela; Darby can't remember exactly when but probably 2006. The defense asks Darby about his meeting with Hugo Chavez, to which Darby replies he never met with Hugo Chavez [just his government]. Why had he gone to Venezuela? His intent was to find resources for people in New Orleans. The defense continues a line of questioning about Venezuela and the relationship between the governments of Venezuela and the U.S. The defense brings up something Darby had said, about something very bad happening there. Darby agreed he had said that he should've gone into therapy after going to Venezuela.

The defense brings up an interview Darby gave to a newspaper after being outed as an informant. The defense quotes a passage in which Darby says he is part of the "radical, radical left", to which Darby replies the statement is out of context; he said that but in relation to the past. Darby agrees that at one point he identified as a revolutionary, but no longer "in the same way." Darby agrees he had said that he was a revolutionary to McKay, that it was part of his cover.

The defense questions Darby, asking him if he ever had talked about taking up arms against the government.

The defense questions Darby in regards to his position on firebombing. Darby says he had never talked about firebombing but had talked about arson, that he had had conversations on the subject of arson but had never done so himself. The discussions that Darby had had about arson were in relationship to the death penalty, gentrification, and people around him had talked about it in relation to the environment and animal rights. Darby agrees that at one point he espoused the philosophy of using arson against gentrifying developments to bring up their insurance rates and make it unprofitable.

Darby says he began to disagree with the people he was working with as much as the Republican party. He felt an obligation to work with the FBI.

On the 26th of February, there was a meeting at Monkeywrench books. Darby says McKay, Crowder, and another activist were there. He began talking to the people he knew and that Crowder and McKay joined it. Soon they planned another meeting. Darby says he did not participate in planning the next meeting, but did attend. He emailed his report to the FBI on the third of March. It was seven pages. The defense reads quotes from the email: "I can help strategize with law enforcement to best prepare for the coming storm" ... "I hope I am tasked by the bureau full time on these issues."

Darby says he had read through these documents prior to trial as they were things he himself had written.

The four including Darby met at a café in Austin for their next meeting. He said Brad and David had asked Darby some questions about his time in New Orleans, to which Darby had said he didn't want to talk about it. Darby acknowledges that he knew that McKay was much younger than himself.

At this meeting Darby said he didn't want to be a part of a group that would sit around and talk and work through issues from adolescence. Darby agrees he'd said in the meeting that he wanted to "shut that fucker down" in relation to the RNC, and that any group he'd be a part of would most likely be successful. Darby also said, "Direct action is intense", and that the police would likely put them in jail cell where people would try to "ass-rape" them.

Darby testified that he said those things to deter McKay and Crowder from taking those risky sorts of actions, and also to be accepted by them, as they had been talking about doing "red" actions.

Darby says he'd used analogies and personal stories to explain how he felt. Darby says his stories were mostly not about being an activist but more about how he related to other activists. He told a story about the 9th Ward post-Katrina where he had instructed people to fill a van with water bottles, to which someone had responded by saying they felt uncomfortable with everyone taking orders from a white man. Darby says he'd responded by saying he was uncomfortable with white people sitting around on boxes of water while black people needed it.

Darby says most of the things he'd said were in a jovial manner. He says he wasn't serious about the things he'd said because he was undercover but much of it wasn't a joke.

Darby says he showed McKay and Crowder some jiu-jitsu moves, ways of "getting away from people who grab you". The defense describes the moves, and Darby agrees that was what they were.

They agreed to meet every week. There was sentiment in the group that Darby's experience and credibility would be helpful in getting their newly formed group to be trusted in Houston. Darby says he played off having security concerns and explained it was because he had done work with—in the words of the defense—"Palestinian freedom fighters", and he felt he was being watched because of that.

[The jury is excused for the day. The defense makes a motion to not allow the prosecution to show a video made by the St. Paul bomb squad simulating Molotov cocktails being thrown against a wall, which is denied. The video is not shown the next day, anyway.]

More day-by-day reports to come!

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

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


Key Documents in the Tacoma PD Spy Scandal

UPDATE: Key Documents in the Tacoma PD Spy Scandal

Some of the key documents in the Tacoma PD and ICE Puget Sound Spy Scandal are now available.

Tacoma PD Photographing U.S. Citizen During Lawful Activity

Some of the key documents can be found here.

Note the large number of activist groups targeted in the Puget Sound Region

Confirmed: Tacoma Spies on Regional Activists

author: Benjamin Franklin
Jan 26, 2009 20:28

Documents show Tacoma PD and Port Police collected and shared intelligence about lawful 1st amendment conduct with GEO Group a private prison corporation.

GEO Spies From its Roof
GEO Spies From its Roof

The Bill of Rights Defense Committee - Tacoma has confirmed that the Tacoma PD and Port of Tacoma Police have collected and shared intelligence data on various local and regional activist groups such as One America(formerly Hate Free Zone Seattle), Community-to-Community (Bellingham), People for Peace Justice and Healing (Tacoma), the Pierce County ACLU, BORDC-Tacoma, and the Students for a Democratic Society (SDS) since at least 2006.

This intelligence has been shared and coordinated with the GEO Group, a private corporation currently operating in violation of Washington State laws at the Northwest Detention Center.

We will provide more information as it is processed.

We strongly suggest individuals that are members or associated with these groups request your individual "watch file" from the City of
Tacoma Clerks Office (for the Tacoma PD) and the Port of Tacoma (for Port Police) You should request any and all documents mentioning you and any associated groups to include email, pictures, video, and any
other documents in your file.

ICE Monitored Women's Event at Govenor's Mansion

Documents obtained by the Bill of Rights Defense Committee - Tacoma show that in the spring of 2006, the Immigration and Customs Enforcement agency (ICE) reported on a planned women's conference at the Governor's mansion in Olympia and directed FPS Regions and associated law enforcement and security partners to report on the planned activities within their respective jurisdictions.

Here is the event as listed in the CIVIL ACTIVISTS AND EXTREMISTS ACTION CALENDAR (Protests, Demonstrations, Marches, and Special Events of Interest):

Sponsor: Center for Women and Democracy
Date: 03/08/06 Time: 1730-1900 hours
Location: Olympia, WA – Governor’s Mansion
Topic/Issue: “Kicking Up Our Heels” Celebrating Women’s Leadership in Washington
Anticipated Number: unknown
Notes: no further information
Officer Safety Issues and Concerns: no further information
Source: ICE FIU

Additionally, ICE requested that local law enforcement and other security partners provide follow-up reporting to include: after action reports, spot reports, arrests, lessons learned, use of violence and civil disobedience.

I guess women's leadership in Washington is a threat.

So ICEman here is a link to the next event:

Maybe you folks should be a sponsor and then you can attend and gather all the intelligence you think you need, because believe me, you need to get smarter about what are the real threats.

Article on PLN

The below may be of interest to folks. If anyone on these lists is not familiar with PLN our website is at:
Voice for the voiceless

Columns | 21 hours 45 min ago | Comments 0

By Sarah Cate

The power of the printed word lies in its tangibility and evocation of thought, and is the subject to be celebrated in this article.
In a recent editorial by The Voice's editorial board, the role of the printed word was beautifully carved out. While news is becoming more and more electronically accessed, print newspapers, periodicals and magazines are still the basis of this expansion and continue to be important pieces of art. As was stated in the editorial, a printed issue is "a story in itself, a composition of journalism and art with myriad pieces assembled to create one solid product." A stellar example of this can be found in the independent monthly news magazine, Prison Legal News.

Printed in Seattle, Washington, Prison Legal News reports on legal cases and prison conditions that the incarcerated face in the United States. About 65 percent of the publication's subscribers are state and federal prisoners. The rest of the readership ranges from attorneys, journalists and academicians, to family members of prisoners and concerned private individuals. It is read in every state and around the world. A journalistic composition is a crucial means of citizen protest and information dissemination, especially in the unique environment of the prison.

Prison Legal News serves as a means of organizing activists, advocating for prisoner's rights and exposing the realities of incarceration. No matter where personal opinions on the issue fall, everyone benefits from being exposed to such information. Far too frequently, this aspect of our society is cast aside and suppressed from our consciousness and engagement. Yet, it affects each and every one of us every day. When we suppress and hide reality, it festers and can unknowingly become destructive. Written _expression plays a significant role in prisons by counteracting ignorance and injustice. However, the ability for prisoners to write and express themselves has had a varied history in the U.S. prison system.

In the 1960s and 1970s there was a surge of creativity and voice from the prisons. Arguably, this was the first time that the American public was introduced to the true nature of the prison system. This surge of voices from prisons reached the American consciousness through various forms of media: publication of memoirs, letter collections, movies, songs and newspapers. Then, following this time, there was a concerted effort to stop this voice. States enacted laws making it illegal for those in prison to receive royalties for things they had published. Creative writing courses in the prison were either eliminated or defunded and federal regulations were drafted that made it so that any prisoner thought to have anti-establishment views was restricted from having any access to the media.

In the face of censorship and concerted efforts to extinguish the voices of prisoners, the persistence of Prison Legal News is remarkable. Started in 1990, and still in publication today, it has beaten the odds to flourish in one of the most oppressed and silenced arenas of our nation. The Northwest should foster and celebrate this important publication we are so fortunate to have in our midst. The printed word helps every voice be heard, so that we can better understand reality and better conduit change. [VV]

Sarah Cate is a contributor to The Voice and a political science grad student at the University of Oregon.

Paul Wright, Editor

Prison Legal News

P.O. Box 2420

West Brattleboro, VT 05303

802 2577-1342

Seattle Office

2400 NW 80th St. Suite 148

Seattle, WA 98117


Monday, January 26, 2009

Leonard Peltier Update

As you know, word was received on January 20 that Leonard Peltier
had been attacked very soon after his transfer to USP-Canaan in
Waymart, Pennsylvania.

Family members received a phone call from Leonard on January 22. He
was jumped by young gang members. He's been put in solitary, he says,
and won't be released again into the general population. He was told
by the FBI that he was the victim in the attack, the proof of this
being a videotape. Assured that he'd enjoy all his privileges upon
his transfer to USP-Canaan, he's now been told he'll be allowed only
one phone call a month. Two attorneys attempted to get inside the
prison to meet with Leonard, but their requests for legal visits
were denied. Peltier is clearly being isolated from friends and
family and even his attorneys.

Sheila Dugan, Esq., an attorney residing in Pennsylvania and working
with Peltier attorney Michael Kuzma was able to visit Leonard on
January 24 for four hours. She saw his bruises. Leonard's chest
still hurts.

Leonard was not taken to a hospital to be examined. He was beaten
up by two other inmates.

Leonard is in solitary confinement and is allowed only one call a
month! As crazy as it sounds, he doesn't have a comb so he can't
comb his hair.

Also, this was a non-contact visit. There was a glass barrier
separating Leonard and Ms. Dugan. She had to talk to him via phone
for the entire four hours.

The below letter to the Bureau of Prisons was written on January
24 by Michael Kuzma. Please consider writing letters of concern to
the BOP as well!


Federal Express #8628 9879 0796

January 24, 2009

Mr. Harley G. Lappin, Director
Bureau of Prisons
320 First Street, N. W.
Washington, D. C. 20534

Re: Leonard Peltier, #89637-132

Dear Director Lappin:

I represent Mr. Leonard Peltier, #89637-132, who is currently
incarcerated at USP Canaan.

Mr. Peltier was recently transferred to USP Canaan from USP
Lewisburg. It is my understanding that Mr. Peltier was brutally
attacked on or about January 13, 2009. Mr. Peltier suffered a
possible concussion, the middle finger on his left hand may be
broken or is badly injured, he has a large bump near his right
wrist, the right side of his rib cage and chest are in a pain,
the right side of his chest is bruised as is his left knee, and he
is now having headaches, which Mr. Peltier believes are a direct
result of the January 13, 2009 beating.

It is clear that Mr. Peltier is in grave danger at USP Canaan.
By letters dated November 29, 2008 and December 15, 2008, I requested
that Mr. Peltier be transferred to the Turtle Mountain reservation
or, in the alternative, he be sent to Sandstone FCI or Oxford FCI.
As I noted in my letter of December 15, 2008, on August 20, 2008
Mr. Peltier sought to be transferred to Sandstone FCI or Oxford FCI.
A copy of the "Inmate Request to Staff" form dated August 20, 2008
that Mr. Peltier submitted to Case Manager Rothermel is once again
enclosed for your information.

Please advise me of what steps, if any, you have taken to ensure
Mr. Peltier's safety. More specifically, I would like to know
what you have done to make sure that he is not attacked again in
the future. Also, has Mr. Peltier received appropriate medical
treatment for his injuries? If not, it is imperative that he sees
health care professionals without any further delay so that his
injuries may be properly treated.

I look forward to hearing from you shortly.

Thank you.

Yours truly,

Michael Kuzma, Esq.


cc: Mr. Henry J. Sadowski, Regional Counsel


Time to set him free... Because it is the RIGHT thing to do.

Friends of Peltier

Jeff Luers- Taking Power

Dear Friends,
Below is a new article written by Jeff, focusing on the need for alternative
energy in our communities. Please take a moment to read it and forward or share
with others.
In addition, we want to wish everyone a Happy 2009! Less than one year from
now, Jeff will be free again. In the meantime, we've got lots of work to do
making sure that Jeff's transition is as easy as possible. Please continue your
letters of support to Jeff, and donations to Jeff's education and release fund
are constantly needed and greatly appreciated. Donation options, including
Jeff's merchandise, are available:
Jeff will be expanding his wish list in the coming weeks and we will be sure to
share that with you.
Thank you again for all your support and solidarity.
-Friends of Jeffrey Free Luers
Taking Power
By Jeffrey Free Luers - January 13, 2009

Alongside protecting the wild and fostering respect for our planet, one of the
tenets of this movement is creating a sustainable future for our communities.
In doing so, we must develop communities that have the ability to provide food,
water, sanitation, resources and energy in a decentralized and autonomous

We use energy everyday. It is easy to dismiss our use of electricity with
romantic notions of primitivism or dismantling the capitalist system by
dismantling the electric grid. But, these thoughts do not reflect the reality
that over a third of all energy use in this country is residential.

Residential buildings alone consume 35% of all electricity in the U.S.(1). Of
that, water heaters account for 15-30% of a households total energy consumption
(2). Then there is lighting, computers, and appliances that consume energy
even when not in use.

Even if people were willing to stop using computers and the internet, willing
to stop taking hot showers, or cooking on a stove, and willing to start washing
clothes by hand – something I highly doubt, considering dedicated and
hardline radicals have failed to make these changes – we would still need a
source of energy.

Consider this, if people did not have gas or electricity to cook with, the
world would be forced to resort to cooking fires. If you think that’s better
than using electricity, imagine the entire city of Los Angeles cooking with
fire 3 meals a day, releasing millions of tons of carbon dioxide into the
atmosphere and particulate matter into the air. Not to mention the havoc and
destruction the consumption of fire wood would have on the Angeles National
Forest and other forested areas. And what about other community necessities
that need electricity to function like hospitals?

As a movement we made mistakes romanticizing militant direct action without
developing a structure to support prisoners and militant actions. We paid for
that mistake with long prison sentences and traitors in our ranks. If we fail
to develop a localized sustainable energy source, our failure could cost human

In developed countries such as the U.S., solar power, though expensive,
represents one of the greenest alternative energy sources. In fact, by covering
an area 291 x 291 square miles with solar cells, we could supply all of the
world’s present energy needs (3). That represents just 0.15% of the Earth’s
land mass. Because of the versatility of photovoltaic cells, solar collection
can be as simple as wiring buildings and houses for solar power with excess
power being fed back into the community.

Again, while individual cost is prohibitive, corporations and local governments
can be pressured to help fund solar conversion. Especially if they realize that
doing so can save their community millions of dollars a year and put them on
the path to energy self-reliance.

Likewise, wind power has the potential to drastically reduce CO2 emissions. In
order to generate the same amount of electricity as a single megawatt wind
turbine for 20 years, 26,000 tons of coal or 87,000 barrels of oil would have
to be burned (4). A single one megawatt wind turbine displaces 2,000 tons of
CO2 each year (based on current average U.S. utility mix) (5).

Moreover, wind power is a relatively cheap source of do it yourself
electricity. While a fair amount of mechanical skill and knowledge of
electrical systems is required to build a turbine, small scale turbines can be
designed from recycled bicycle parts and neodymium magnets scavenged from
computer hard drives for under $50 (6). Like photovoltaic systems, wind
turbines can be attached to buildings or homes. They can also be placed in
community gardens or other accessible areas.

In areas where wind or solar are not an option, electricity may be produced
from biomass. Unfortunately, biomass can be a source of severe air pollution if
not processed carefully. However, an area of promise is methane digester
systems that break down animal or human waste into useable methane – a
natural byproduct of decomposition. While methane is a greenhouse gas 20-times
more potent than CO2, when it is burned to create electricity it breaks down
into CO2 in levels lower than coal.

While methane’s release of CO2 is less than desired, through the natural
breakdown of waste, methane would be produced and released. By harnessing this
methane for electricity it can then broken down into a less potent greenhouse
gas. The use of biomass may therefore be an effective and environmentally
friendly way of treating raw sewage as opposed to the water intensive method
currently used.

By failing to work toward alternative energy methods in our communities we are
virtually guaranteeing the continued use of fossil fuels and rising global
temperature. We also continue to allow energy giants to make decisions for us.

Aside from initial investments and hard work, solar, wind and biomass energy is
free. Governments do not control the sun, wind, or how much we shit. While some
may argue that embracing alternative energy is a compromise that we shouldn’t
make, these same people continue to use electricity. By not developing
alternative energy in our own backyards, we are just allowing energy giants to
conduct business as usual.

Certainly, we need to reduce our use of energy. The best way to do that is to
stop using appliances we don’t need, and unplug the ones we do when we
aren’t using them. But, like it or not, since humans first used fire, we
haven’t stopped – electricity is an extension of that. The sort of thing we
can do is to create the cleanest, safest, sustainable, local applications of
electricity production as possible. We, literally, need to take power out of
government and corporate hands and put it in our own.

(1) U.S. Dept. of Energy, Office of Building Technology and Community Programs.
RTS Core Databook. U.S. Dept. of Energy, 2000. Charts I. 1.2 and I. 1.3.

(2) David Johnston and Scott Gibson, Green From the Ground Up. The Taunton
Press. 2008. Pg. 156.

(3) Bjorn Lomborg. The Skeptical Environmentalist: Measuring the Real State of
the World. Cambridge University Press. 2001. Pg. 131.

(4) and (5) David Johnston and Kim Master, Green Remodeling: Changing the World
One Room at a Time. New Society Publishers. 2004. Pg. 85.

(6) Scott Kellogg and Stacy Pettigrew, Toolbox for Sustainable City Living.
South End Press. 2008. Pg. 163.

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