Michel McKay stood at the back of the courtroom, pinching tears from his eyes.

His son, David McKay, is gullible, naive. He was, the father said, looking for excitement and hooked up with the wrong people on their way to protest at the Republican National Convention. But David wouldn't toss a fire bomb, like the government said he intended to, Michel McKay said.

So why, he asked, would federal officials work so hard to keep his son in custody after a magistrate judge ruled that David McKay, 22, and co-defendant Bradley Crowder, 23, could return home to Texas to await trial.

"Why are they doing this?" he asked as he left the U.S. Courthouse in Minneapolis.

McKay's questions followed a bit of late afternoon drama Tuesday in the case of the two Texas men charged with making Molotov cocktails to use at the convention last week in St. Paul.

Federal Magistrate Judge Franklin Noel, after a 2 1/2-hour hearing, ruled that the men could return to Texas on a signature bond, unconvinced that they were a threat to offend again or flee. But Assistant U.S. Attorney Anders Folk immediately appealed, asking U.S. Chief Judge Michael Davis to stay Noel's decision and keep the men in custody.

The would-be weapons the men created and what they intended to do with them -- investigators allege the men planned to fire-bomb police cars -- required that they be kept in jail, Folk argued.

"These destructive devices had the possibility of doing great harm to property and people," Folk told Davis.

But defense attorneys argued, as they had in front of Noel just an hour before the hearing in Davis' courtroom, that much of the government's case relies on the word of confidential informants who had infiltrated the Austin Area Affinity Group. And, they said, prosecutors have no direct evidence that Crowder and McKay bought the materials used to make Molotov cocktails, and they have little more than informants' statements to go on.

"It's just not fair, your honor," Jeff Degree, McKay's attorney, told Davis. "My client should be released."

Decision expected today

Davis said he will decide the issue after a 2 p.m. hearing today. Meanwhile, Crowder and McKay will spend at least another night in a Minnesota jail.

The Texas men were charged last week after investigators seized eight Molotov cocktails from a St. Paul apartment building. In a different case, a Michigan man also has been charged with making Molotov cocktails to use at the convention.

Crowder and McKay had driven north with others from Austin, Texas, to protest at the convention. According to a confidential informant who made the trip with them, the group towed a trailer filled with shields made from highway barrels -- and helmets and clubs -- to use against police. On Aug. 31, police seized the trailer and its contents.

Later that day, officials say, the men and others went to buy the materials to make Molotov cocktails. Investigators say the men intended to use them on police cars in a parking lot not far from Xcel Energy Center. Officials doing surveillance said they even heard McKay say, "It's worth it if an officer gets burned or maimed."

'He's never been in trouble'

But Michel McKay, who came to Minneapolis on Monday with $20,000 in available bail money and a willingness to put up $500,000 in real estate as collateral for his son's release, insisted that the younger McKay is not a violent man.

"He's never been in trouble before," McKay said of his son. "He's a little bit gullible, a bit naive. Not political. I guarantee you he could not name five Democrats or five Republicans in the House."

David McKay is a talented graphic artist who got caught up in something that got out of control, Michel McKay said.

After Noel's ruling, McKay's attorney was asked if he thought his decision to release the men indicated that a grand jury might not indict them. After all, if he didn't see them as dangerous, perhaps the U.S. attorney's office would rethink its case.

"The cynic in me says there was a lot of money spent by the government," he said. "At the end of the day, they've got three federal cases they're prosecuting and they're probably not going to let go of those."

James Walsh • 612-673-7428