Adam Fox sought as defense witness in kidnap plot trial

Jul. 20—BELLAIRE — Adam Fox, incarcerated in a Colorado prison after a jury found him guilty of conspiracy in a plot to kidnap Gov. Gretchen Whitmer, is the subject of an unexpected request — that he testify as a defense witness.

Fox was previously sentenced by a federal judge to serve 16 years in prison and is currently incarcerated at ADX Florence, a maximum security federal prison.

* William Barnette, an attorney for Eric Molitor, who is among the men charged locally with participating in the plot, filed a motion stating Fox would testify Molitor "was not to be counted on for any extreme sht."

That specific language comes from a prosecution exhibit, previously shared in open court, in which Fox appears to warn "Dan" — a man then working for the FBI as a confidential human source — about "Barricade" — a code name for Molitor that appears in some audio and text communications.

* An FBI agent, Henrik Impola, testified during a preliminary hearing last year, that Fox told Dan, "Okay, Barricade I don't think will be down for the more extreme sht."

Barnette said in his motion filed Monday, that he believed Fox would testify to this in court during a jury trial scheduled to begin Aug. 21.

"(W)ithout Adam Fox's appearance, and expected testimony, Defendant Molitor will not receive a fair trial and his due process rights will be jeopardized," Barnette said in a court filing.

Molitor and four other men were initially charged in 13th Circuit Court in 2020, for what state prosecutors say was their role in the plot.

Brian Higgins, a resident of Wisconsin, and Shawn Fix, of Belleville, Michigan, have since accepted plea agreements and said they will cooperate with Attorney General Dana Nessel's office, which is prosecuting the case.

Molitor and twin brothers Michael Null and William Null, all of Michigan, have pleaded not guilty. They are charged with providing material support for an act of terrorism and possession of a firearm during the commission of a felony.

Evidence presented in court shows the men, in text messages and recordings made by undercover FBI agents and confidential sources, expressed anger over the governor's pandemic-related executive orders, the possibility of mask and vaccine mandates, and the prospect of gun control legislation.

The kidnapping plot was planned in response, prosecutors said, and evidence shows some of the men participated in a drive-by surveillance of Whitmer's lakeside summer home near Elk Rapids.

Barnette had previously told the court he intended to call Fox as a witness, 13th Circuit Court Judge Charles Hamlyn signed a writ allowing Fox to testify, and ordered he be provided with a court-appointed attorney.

That doesn't mean Fox will travel to Antrim County to be sworn in as a trial witness, however.

That's because the warden of the prison where Fox is housed requires a letter from a "state authority" certifying a specific security level before Fox will be allowed to travel.

In this case, that state authority is either FBI agents assigned to Michigan or the state AG's office, and both entities are directly involved in the investigation and the prosecution, and don't appear inclined to assist in securing a defense witness, Barnett said.

Judge Hamlyn on Tuesday is scheduled to hear arguments on whether the state AG's office should be compelled to send such a letter.

Court filings show the state has concerns Fox might agree to come to Michigan, then invoke his fifth amendment right against self-incrimination and not actually testify.

Barnette, in his motion, stated members of Fox's family had told him Fox intended to waive this right and testify at trial, in Molitor's defense.

A long-time area attorney who directs court appointments, said that is a choice Fox has to make for himself, after consulting with legal counsel.

"Our office received a request to appoint what I would call an advisory council for a witness," Paul Jarboe said Wednesday. "Mr. Fox is potentially a witness, he has certain rights, so he is entitled to have an attorney advise him of those rights as to whether he will or won't provide testimony voluntarily."

Jarboe, as director of a regional office of the Michigan Indigent Defense Council, makes appointments of attorneys for defendants who qualify for a court appointment, because of finances.

Barnette said Molitor cannot afford the expense of bringing Fox to Antrim County.

The AG's office, at Jarboe's request, filed the court petition stating Fox could not afford to hire an attorney while incarcerated.

Jarboe said he received the order from the court Wednesday morning, and expected to make the appointment before the end of the week.

Whoever is assigned would share these points of law with his new client:

"It boils down to this," Jarboe said. "In Michigan, Mr. Fox is what's called an uncharged co-conspirator. He has not been granted immunity, and anything he would say could be used against him if the state chose to prosecute him, which they could. If he came in and agreed to testify, he could be subjecting himself to criminal exposure. But that's a decision for Mr. Fox."

The motion hearing is scheduled for Tuesday at 9 a.m.