‘This was a huge setback’: Will the feds throw in the towel in Whitmer kidnap case?

‘This was a huge setback’: Will the feds throw in the towel in Whitmer kidnap case?

USA News

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  • A federal judge announced not guilty verdicts against two men charged in the largest domestic terrorism case in recent history.
  • Two other men charged in the case were declared mistrials.
  • Former federal prosecutor Neama Rahmani believes the jury did not find the agents, informants or the cooperating co-defendants credible.

DETROIT – In the end, the jury sent a message to the FBI: We don’t believe you.

It came through loud and clear on Friday afternoon, when a federal judge announced not guilty verdicts against two men charged in the largest domestic terrorism case in recent history, and declared mistrials for two others.

This is how the sensational Gov. Gretchen Whitmer kidnapping plot trial ended — with no convictions and no explanation from the jury that spent three weeks hearing testimony that violent extremists plotted to kidnap the governor out of anger over her COVID-19 restrictions. The six men and six women jurors left in silence, but their decision spoke volumes.

What’s clear is that they believed at least two of the defendants, not the undercover FBI agents and informants who infiltrated their militia group, testified against them at trial and were the backbone of the government’s case.

“I am wondering when the government will finally get the message about agent provocateurs being embedded in these groups,” said veteran criminal defense attorney Jim Thomas, who was part of the defense team in the 2012 Hutaree militia trial in Michigan that fizzled for the government. “Jurors don’t like the idea of this type of government intrusion where vulnerable individuals are led into criminal conduct by our government.”

The defense hammered away at this theme throughout the trial — that rogue FBI agents and informants were the real creators and drivers of the kidnap plot, egged on the defendants and, as one defense lawyer put it, “was pushing a conspiracy that just never was, never was going to be.”

Despite all the purported evidence that was shown at trial — the nighttime surveillance of Whitmer’s cottage, the shoot houses built to mimic her cottage, the recorded comments of the defendants discussing ways to kill the governor, the trip to a bridge to inspect it for bomb placements, and the testimony from two codefendants who pleaded guilty and said no one forced anyone in the group to do anything — the jury didn’t hear or see enough to convict anyone of anything.

At issue in the case was a lack of clarity about the alleged kidnapping plan. 

There was no date set for the kidnapping, according to trial testimony. 

And the plan that jurors did hear about varied. There was talk of a plan to kidnap Whitmer, kill her security detail then drive her to Lake Michigan and abandon her in a boat in the middle of the lake. There was also talk about transporting her to Wisconsin and hanging her there.

None of this was realistic, the defense argued. It was fantasy. 

“To me, this was a signal,” said Michael Hills, who represented Brandon Caserta, the  Michigan man who was acquitted on his 34th birthday.

“Our governor was never in any danger,” Hills said. ” And I think the jury — they didn’t get all of it — but they smelled enough of it.”

Did location of trial play a role?

Veteran criminal defense attorney Bill Swor, who represented the acquitted ringleader in the Hutaree trial, also believes the jury was troubled by the role of the undercover agents and informants.

The jury heard testimony about the undercovers planning meetings, paying for hotel rooms and meals, offering credit cards with $5,000 limits to a defendant to spend any way he wanted — though he refused the offer five times — and forming a fake militia that named Adam Fox president. The group had only two members, including an undercover agent.

“It’s not entirely surprising,” Swor said of the outcome. “There was a lot of activity, inappropriate and otherwise, by the government’s agents. There was plenty of room to accept the defense theory that these guys were keyboard warriors — fantasy players who had no real intent, or for that matter the ability, to execute this scheme.”

But another factor may have been in play here, Swor and other defense experts noted: the location of the trial, and where the jurors came from.

The trial was held in Grand Rapids, Michigan, and many of the jurors came from northern Michigan, or rural parts of western Michigan.

“The jurors may have known people like this, who are a lot of talk,” Swor said. “And the jury may have decided that these guys were just running around being busy, and didn’t have any focus. … People in other parts of the state may see this kind of activity as very normal, but not necessarily focused.”

And even if they were focused, Swor said: “The jury may have decided that the directed influence of the government agents was the difference, and so for that reason they let them go.”

Longtime criminal defense attorney Mike Rataj, who was also part of the defense team in the Hutaree trial, agreed.

“Some of these jurors come from rural places, where people are very distrustful of the government,” Rataj said. “I think it’s safe to assume the jurors did not believe the government undercovers.”

David Steingold, another criminal defense attorney with decades of trial experience, said he believes the location of the trial played a key role. The jury came from staunch conservative regions where, he maintained, there is a huge dislike of Whitmer, her handling of the pandemic and a mistrust of government.

Steingold questioned the outcome given how the jury treated Daniel Harris, who was acquitted on all four counts after being the only defendant to take the stand in a wild testimony that included him calling an undercover FBI informant a “b—-” multiple times.

Harris admitted during his testimony that he had suggested ways to kill Whitmer, and tried to build and set off explosives with his codefendant Barry Croft, but that their balloon-in-the-stove device failed. The defendants were accused of plotting to blow up a bridge near Whitmer’s vacation house to slow down law enforcement, though Harris denied being a part of any such plan.

Among the counts that Harris faced was possession of an unregistered short-barreled rifle — a charge that Swor referred to as “a no-brainer.”

The jury disagreed.

“They acquitted him on that? On what theory?” Steingold said. “That suggests that this was a politically motivated verdict.”

How important was casing Whitmer’s house?

Prosecutors argued repeatedly at trial that the suspects’ nighttime surveillance of Whitmer’s cottage was among the most damning pieces of evidence against the group, stressing “casing the governor’s house was overt.” 

Attorney Mark Chutkow, a former federal prosecutor in Detroit, believes the distinction in the verdicts might be related to who actually took part in the nighttime surveillance of the governor’s cottage.

According to trial testimony, Harris and Caserta — the two acquitted defendants — did not make that trip. Caserta went off to get high that night, his lawyer said. And Harris told jurors that he did not tag along because he opted to stay back and party, and got drunk on $200 worth of cheap beer and Jagermeister.

Those who did conduct the nighttime surveillance were Ty Garbin and Kaleb Franks — the two codefendants who pleaded guilty — and Adam Fox and Barry Croft, the pair accused of being the ringleaders and who are facing a retrial. According to trial testimony, three cars went out to Whitmer’s cottage. One was to find the house. One was on the lookout for law enforcement. The third was at a boat launch. Undercover FBI agents were in each car.

“That might be the overt act the jurors were most focused on because they could imagine how unnerving that would be if someone were surveilling their homes,” said Chutkow, who believes the government had a compelling case.

But Chutkow noted that the jurors had weighty questions to confront, including:

Did the defendants cross the line dividing protected free speech and criminal conspiracy? How much can the government participate in a plot as it develops?

Chutkow said these questions underscore the difficult challenges that agents face when trying to disrupt “an emerging conspiracy.” 

For example, Chutkow said, do agents let the plan gel further to aid a later prosecution, or do they pull the plug before they lose access to the participants and control of the outcome, so no one gets hurt?

According to Chutkow, law enforcement officials are going to err on the side of safety, even at the expense of gathering additional helpful evidence.

“In this case, the prosecution seems comfortable that they’ve found the right balance, reflected by the fact that they’ve secured testimony of two of the participants who pled guilty to the conspiracy,” he said. “I anticipate that the prosecution will present a very similar case during the retrial.”

But there could be a new element. 

“One wild card is whether the two acquitted defendants testify for the defense,” Chutkow said.

Swor doesn’t believe that will happen.

But he does expect the retrial to focus more on one event: “They probably will talk more about staking out the house.”

‘Throw in the towel’

Former federal prosecutor Neama Rahmani, a California attorney who called the Michigan verdict “shocking” and a “huge setback” for the government, does not believe the prosecution will retry the remaining two defendants: Fox and Croft.

Rahmani, president of the West Coast Trial Lawyers in Los Angeles, called the Whitmer case “one of the most high-profile and biggest” domestic terrorism cases for the Department of Justice.  

“Clearly, the agents jumped the gun here and I don’t think that the U.S. Attorney’s Office thought there was a chance of getting this verdict … but I think they will decide to throw in the towel,” said Rahmani, who believes the jury did not find the agents, informants or the cooperating codefendants credible.

Additionally, Rahmani said, the jury must have thought “that the alleged kidnapping plot just wasn’t far enough along.”

“This was such a significant defeat,” Rahmani said. “Sometimes, discretion is the better part of valor, and I believe they will choose to lick their wounds and walk away.”

“No way,” countered former U.S. Attorney Matthew Schneider, who oversaw the U.S. Attorney’s Office in Detroit before going into private practice last year. “They will retry it. And it will be easier with just two defendants who are the most culpable ones.”

As for claims the prosecutors will give up, Schneider noted: “The Department of Justice tried John Gotti four times.”

Fate of two facing retrial 

The FBI declined comment on the outcome of the trial.

U.S. Attorney Andrew Birge called the verdicts disappointing, but said his office will retry Fox and Croft, two like-minded militia members who shared a love of guns and the Second Amendment, and a hate for government, FBI snitches — and Whitmer.

“I still want to hog tie her ass,” Fox wrote to his militia friends in a text that was shown to the jury.

Fox’s social media rants and taped conversations also were used against him at trial, including one conversation in which he allegedly talked about wanting a hostage, and that storming the Capitol wasn’t enough.

“You take politicians — now you got human life,” Fox is heard telling his group about Whitmer.

Jurors also saw videos and photographs of Fox casing Whitmer’s house twice, him inspecting a bridge for a good spot to place explosives, and a picture of a map he drew of the area surrounding Whitmer’s property.

Croft’s anti-Whitmer rants and bomb-building activities were also presented to the jury, which heard Croft make perhaps the most damning statement at trial. It was a conversation of him talking to his 12-year-old daughter, who had interrupted his militia group meeting.

“Daddy … do you want a Dorito?” the girl asked.

“Honey, I’m making explosives, can you get away from me please?” Croft responded while his alleged cohorts laughed in the background.

In addition to kidnapping conspiracy, Croft is facing a weapons of mass destruction charge and possessing an unregistered destructive device. 

The prosecution argued Croft was serious about harming people, not just talking, and played this conversation for the jury:

“I want to hurt people. I want to burn houses down and blow things up,” Croft is heard saying. “I might murder a cop, put his uniform on and murder feds. I am not being hypothetical.” 

The acquittals and mistrials left many in political and legal circles reeling, arguing the outcome sets a dangerous precedent for extremists contemplating violent acts.

“This verdict concerns me because it could embolden other anti-government extremists to engage in dangerous conduct in the name of vigilante justice,” former U.S. Attorney Barbara McQuade said. “In a time when we see a growing number of threats of violence against public officials, it is important to hold such conduct accountable.”

Civil and criminal defense attorney Jamie White, who represented victims of Larry Nassar, also viewed the acquittals and mistrials as troubling.

‘I’m simply flabbergasted by this outcome,” White said. “I see this as a pathway to disaster which threatens an end to democracy. … Are we in a nation under the rule of law, or one where people can plot to kidnap and kill officials?”

The defense, however, has long argued that there was no real plot to kidnap or harm the governor.

Lawyers for Fox and Croft argued their clients were merely tough-talking pot smokers who couldn’t be taken seriously, were only trying to impress their peers and were set up by informants and agents who were trying to advance their own careers.

“Adam Fox wanted to please. He was looking for connections,” Fox’s lawyer, Christopher Gibbons, told the jury. “Adam Fox is not the leader the government wants him to be. He never became a leader.”

Gibbons urged the jury to acquit his client, stating: “You’re our last hope.”

The jury gave him a sliver. No verdict, but another chance to take on the government.

“We’re ready,” Gibbons said.

Contributing: Arpan Lobo

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