Adam Fox, Barry Croft want new trial in Whitmer kidnapping case

Two men convicted of conspiring to kidnap Michigan Gov. Gretchen Whitmer are seeking a new trial, arguing they didn't get a fair shake when a federal jury convicted them of crimes that sent them to prison for years. Among their concerns — a juror whose impartiality was questioned by the defense in court ended up being the jury's foreperson.

In new briefs filed Wednesday with the U.S. 6th Circuit Court of Appeals, Adam Fox and Barry Croft assert the judge who presided over their federal trial in Grand Rapids didn't properly address allegations of jury misconduct and imposed unfair time limits on their attorneys' cross-examinations of key government witnesses. Should the federal appeals court hear the case, it will weigh whether proper judicial procedures were followed at the trial court level, rather than consider any evidence presented.

In December, U.S. District Judge Robert Jonker sentenced Fox, the described leader of the conspiracy, to 16 years in prison, a lesser term than the life sentence sought by federal prosecutors. Jonker sentenced Croft to a 19-year prison stint in the following days. In addition to the kidnapping conspiracy plot, Croft also was convicted of conspiracy to use weapons of mass destruction, and knowingly possessing an unregistered destructive device.

Fox and Croft are both seeking a third trial. At their first trial, the jury was unable to reach a consensus on the charges against the pair, triggering a mistrial. But after the second trial, both were convicted.

Jonker previously denied a motion for a third trial from Fox's and Croft's previous lawyers, Christopher Gibbons and Joshua Blanchard. Court records show that Gibbons and Blanchard withdrew as their attorneys in January of this year, not long after sentencing. The 6th Circuit Court of Appeals appointed Columbus, Ohio-based attorney Steven Nolder as Fox's lawyer, and Cleveland-based attorney Timothy Sweeney as Croft's legal counsel.

In separate briefs filed Wednesday, Nolder and Sweeney made the same entrapment arguments that were previously rejected by Jonker, arguing that Fox and others were entrapped, or convinced, by undercover FBI agents to conceive a plot to kidnap Whitmer after expressing frustration with government restrictions put in place during the early days of the coronavirus pandemic in 2020.

The defense lawyers also argue that during trial, Fox's and Croft's attorneys weren't given the opportunity to confront a juror suspected of bias at the start of Fox's and Croft's second trial in August 2022.

According to court documents, the defense got a tip on the second day of the trial that one of the jurors allegedly told a coworker that he/she was biased against the defendants, had hoped to get on the jury and would make sure they were convicted. Records also show the tip came from a secondhand source — not the person who purportedly heard the alleged comment at work. That person never came forward and refused to be identified, according to court records.

Trial coverage: How 3 controversial jurors wound up in the Whitmer kidnap jury box

“On the second day of testimony, credible evidence of juror misconduct and bias was proffered to the district court. Most of this information was later corroborated by the court’s jury clerk," Nolder wrote in his appeal to the 6th circuit. "Despite wanting to examine the juror about the misconduct, Fox’s attorney was denied the ability to question the juror or even be present when he was questioned by the district court in an in camera proceeding.”

The juror accused of bias later became the jury foreperson, according to Nolder's brief. Jonker handled the issue on his own — interviewing the juror in private in his chambers in a seven-minute interview that concluded with the judge being convinced that the juror never made any such comment, and could remain on the jury. Two court staffers also attended that interview.

During the trial, Gibbons and Blanchard criticized Jonker's conduct, accusing the judge of being favorable to federal prosecutors while the jury was present. Jonker chided the defense for taking too long to cross-examine government witnesses, and eventually set a time restriction for cross-examination of a witness crucial to the government's case.

Kaleb Franks, one of the men originally arrested along with Fox and Croft, pleaded guilty before a trial began to avoid a stiffer prison sentence. He and another co-defendant who eventually pleaded guilty, Ty Garbin, became key witnesses for the feds, testifying that the group did indeed plan on carrying out a plot to kidnap the governor.

Before defense attorneys could cross-examine Franks, Jonker told the attorneys their cross-examinations could only be as long as the testimony taken from direct examination carried out by the government, to the chagrin of Gibbons and Blanchard.

"Limiting us is unfair and it's unconstitutional, and it doesn't aid the jury in the search for the truth," Blanchard said of the time limits, according to a Free Press article covering the trial.

Nolder said the time restriction "impacted Fox’s ability to show Franks’ bias and motivation for testifying. It also deprived Fox of the opportunity to elicit evidence supporting his entrapment defense.” During closing arguments, both defense lawyers argued that Franks wasn't truthful in his testimony, and his testimony was an attempt to get in prosecutor's good graces for a lesser sentence. Franks is currently serving a four-year prison sentence.

Nolder and Sweeney returned to the key element of Fox and the other defendants' cases during the original trials — that they were goaded by undercover agents to conceive a kidnapping, and never would have had the ability to organize or carry out a plot if it weren't for the feds.

Additionally, Sweeney said the trial court erred when it omitted communications between undercover FBI agents and confidential human sources, or informants, who interacted with Croft during the plot's formative months, from being included as evidence.

"These communications — to include both (FBI Agent Jayson) Chambers’ side of the conversations, but also that of (CHS Dan) and/or the other agents/informants — constituted relevant evidence of the shocking degree to which Chambers, (CHS Dan) and the other FBI agents/informants orchestrated this scam and generally engaged in incessant and oppressive inducement," Sweeney wrote.

By not allowing these communications to be entered as evidence at trial, the court hamstrung the defense's ability to convey to the jury that Croft and Fox were entrapped, he argued.

"The result was a trial about entrapment with defendants’ hands tied behind their backs and the jury blindfolded to critical relevant facts," Sweeney wrote.

Responding briefs from federal government prosecutors are due by Sept. 20, court records show.

The appeals are another step in the almost three-year window since the FBI arrested Fox, Croft and others for conspiring to kidnap Whitmer in October 2020. The government found mixed success trying the group — Fox and Croft were found guilty during an August 2022 trial, but only after an earlier trial netted zero convictions. During the initial trial, a jury found Daniel Harris and Brandon Caserta not guilty of all charges in April 2022, and couldn't reach a consensus on Fox and Croft. Two other co-defendants, Franks and Garbin, pleaded guilty to earn lesser sentences.

Separate from the federal case in the kidnapping plot, three state defendants were convicted last October of providing support for a terrorist act while the four others await trial later this year. In a separate case related to the plot, a Wisconsin man has pleaded guilty.

Free Press staff writer Tresa Baldas contributed to this report.

Contact Arpan Lobo: alobo@freepress.com. Follow him on Twitter @arpanlobo.

Become a subscriber today.

This article originally appeared on Detroit Free Press: Adam Fox, Barry Croft want another trial in Whitmer kidnap plot case