DAY 6 - KIDNAP PLOT TRIAL: Video sparks court-rule wrangling

Aug. 31—BELLAIRE — A freelance videographer's two-hour interview of Eric Molitor, a defendant in a kidnap trial here, drew pointed legal arguments by Molitor's defense attorney, who for the second time since the trial began asked for a mistrial.

"I'm asking for a mistrial, if not a dismissal," William Barnett told the court. "It wasn't fair to the court, it wasn't fair to the jury, it wasn't fair to Mr. Molitor's attorney. It is totally outweighed by the prejudicial value and it shouldn't come in."

Barnett on Wednesday morning again argued against a decision made late Tuesday by 13th Circuit Court Judge Charles Hamlyn that allowed prosecutors to admit into evidence and show the jury five brief video clips of Molitor being interviewed by Eric VanDussen.

In the clips, Molitor calls a confidential informant "a piece of s---," defines a far-right political movement called "the Boogaloo" as "a fight against our government" and "like another civil war," and says he knew exactly what he was doing when he used a cell phone to take a slow-motion video of Gov. Gretchen Whitmer's summer home during a daytime surveillance in 2020.

"I don't know that it's correctible," Barnett said, accusing prosecutors of editing the clips to falsely represent his client's views.

Hamlyn denied Barnett's request for a mistrial, denied his dismissal request and his request for the judge poll jurors individually to gauge their thoughts on the video clips.

"Evidence is always prejudicial," Hamlyn said. "That's the very nature of evidence. Otherwise, a party would not be able to claim its relevance. The question is the probative value. Does the prejudicial so far exceed the probative value?"

Hamlyn said, in this case, it did not.

He added that the Michigan court rule known as "the rule of completeness" could be satisfied by allowing Barnett to offer into evidence expanded versions of the same video clips and show those to the jury.

The rule of completeness means if part of a recorded (or written) statement is introduced as evidence in a criminal trial, and can't be fully understood on its own, the remainder of the recording or document can be admitted.

Barnett said he wanted to call videographer VanDussen, who not only conducted the interview with Molitor but is videotaping the trial, as a witness. He said VanDussen could testify about how the clips from the video had been edited by the prosecution, but the judge disagreed.

"I'm not going to bring Mr. VanDussen forward," the judge said, referencing VanDussen's role as a freelance journalist, whose work, including the video, are available in the public domain.

Hamlyn also said he would not allow the entire two-plus hour interview to be played for the jury, as expanded versions of the same clips previously shown by the prosecution would suffice.

Molitor is charged in Antrim County with a single count of providing material support for an act of terrorism and a single count of being in possession of a firearm while in commission of a felony.

The charges stem from a 2020 plot to kidnap Gov. Gretchen Whitmer from her vacation home near Elk Rapids.

Two other men, twin brothers Michael Null and William Null, face these same charges and their attorneys — Thomas Siver and Damian Nunzio — asked the judge to make clear to the jury that their clients did not know of the interview and did not participate in it.

All three men have pleaded not guilty.

Barnett, after the court adjourned for a break, played for the jury the audio of expanded versions of three of the five video clips, where Molitor further discussed his views.

For example, Molitor says in one of the expanded versions, the "Boogaloo" should be a last resort and civil war is not something to look forward to. After using an expletive, Molitor goes on to say he's irritated by anyone who says otherwise and that there is something wrong with people who are "waiting to f---ing kill another American."

FBI Special Agent Henrik Impola, who testified for the prosecution last week and most of the day Monday and Tuesday, was cross-examined Wednesday by Barnett and by Kristyn Nunzio, one of William Null's attorneys.

Nunzio questioned Impola about a number of interactions — meetings, encrypted digital chats and firearms training — the FBI lists as related to the kidnap plot, but which the Null brothers did not participate in or attend.

Barnett questioned the special agent about, among other issues, photographs taken in August 2020 of a home on Mackinac Island that an undercover FBI agent sent to Adam Fox.

Prosecutors have previously identified Fox as both a "co-leader" and a "ringleader" of the plot.

"These appear to be photographs taken by the FBI as part of the undercover operation and they are photographs of the Mackinac Island mansion," Impola said. "Or the governor's ceremonial . . .building, residence."

"For whomever is the governor?" Barnett asked.

"Yes, sir," Impola said.

The photographs depict a 1902 historic home near Fort Mackinac, purchased by the Mackinac Island State Park Commission in 1944, and which for years has functioned as a summer residence for whoever is serving as Michigan's governor.

"Those pictures were given to Adam Fox, were they not?" Barnett asked.

"Yes. They were sent from Undercover Mark's account to Adam Fox. On his request," Impola said.

Undercover Mark is an FBI agent, court testimony shows, whose cover was a janitor who lived in the Upper Peninsula.

It is unclear, from the testimony, what happened behind the scenes to lead an undercover FBI agent to send photographs of the property — listed since 1997 on the National Register of Historic Places — to a man FBI agents were investigating as a possible domestic terrorist.

Fox is one of more than a dozen men arrested for what prosecutors say was the men's role in the plot; he is serving 16 years in prison after being convicted of conspiracy and other charges in federal court.

Also on Wednesday, lead prosecutor Assistant Attorney General William Rollstin called, as a witness, Amanda Keller, who asserted her Fifth Amendment right against self-incrimination moments after being sworn in.

Keller, Impola previously testified, had been Fox's girlfriend and/or fiancé.

Keller left the stand and Rollstin played the audio of a telephone call Keller made in August 2020 to the FBI's central dispatch in Washington, D.C.

"And what federal crime, or federal violation are you calling to report today?" a dispatcher asks.

"Domestic terrorists," a woman prosecutors identified as Keller states.

Keller goes on to tell the dispatcher multiple states are involved in a plot to kidnap Whitmer, blow up buildings, blow up the electric grid and go after an unspecified news station.

By the time of the call, an FBI timeline shows Impola had already been investigating the plot for months, was a "handler" for an FBI informant, "CHS Dan," was working with at least two undercover FBI agents — Undercover Red and Undercover Mark — and was about to live-monitor the first of two trips, by various men under observation by law enforcement, to surveil several locations in and around Elk Rapids.

Day Six of the trial adjourned Wednesday just after 5 p.m. The trial is expected to resume Thursday at 9 a.m.