Jan. 25—BELLAIRE — A judge appeared to clarify an ongoing, thorny issue of whether the public has a right to see the voluminous court file in the criminal case against five men accused of participating in a plot to kidnap Michigan's governor.
Questions remain, however, over the scope of the protective orders signed by a lower court judge, prior to the case being bound over to circuit court for trial.
"We normally keep our files open, unless there's a darn good reason to keep them closed," 13th Circuit Court Judge Kevin Elsenheimer said during a pre-trial hearing Monday. "The file will remain open for access to the public."
Elsenheimer said an 86th District Court order signed by Judge Michael Stepka had closed the case file, although court records show Stepka's protective orders only forbid disclosure of discovery evidence.
Shawn Fix, Eric Molitor, Michael Null and William Null, all of Michigan, are charged with one count each of providing material support or resources for an act of terrorism and one count each of possession of a firearm during the commission of a felony.
Brian Higgins, a resident of Wisconsin, is charged with one count of providing material support or resources for an act of terrorism.
All five either pleaded not guilty or stood mute as Stepka in December bound the case over for trial following a four-day preliminary hearing in Traverse City late last summer.
The men, according to evidence previously presented in court, were angry about the governor's pandemic-related executive orders and objected to federal government restrictions and possible vaccine mandates.
Stepka's protective order listed emails, texts, photos, audio and video recordings, investigative reports and subpoena transcripts as barred from public disclosure, but made no mention of other case documents, such as motions filed by attorneys or orders signed by a judge.
Yet these standard documents also were previously withheld and, earlier this month, Antrim Court Clerk Sheryl Guy said a clerk with her office received an email from 13th Circuit Court administration, directing them not to release to the public anything filed in the case.
Elsenheimer had continued Stepka's protective order, Guy said, and it was her understanding that meant everything filed in the case, not just discovery documents, an assertion 13th Circuit Court Administrator Trina Girardin later confirmed.
In Monday's hearing, Elsenheimer polled state prosecutors and defense attorneys about the issue before making his ruling — and none objected, including Assistant Attorney General William Rollstin, lead prosecutor in the case.
Grand Rapids-based attorney Damian Nunzio, who represents William Null, expressed confusion as to why the file had been closed in the first place.
"Judge, could you explain that?" Nunzio asked Elsenheimer. "The files are closed. And why are they closed?"
In his answer, Elsenheimer again referenced Stepka's district court order.
Only Cadillac-based attorney William Barnett, who represents Eric Molitor, spoke to the issue of what Stepka's protective order actually protected.
"Just as to history, my understanding was the file in district court was open to the media," Barnett said. "There were just things that were received by the lawyers, the discovery, etc., emails that were not to be handed out, and that was by court order."
"All right," Elsenheimer said, "that sounds like no objection to me."
Public access to the case file has both Constitutional and practical implications, as a motion filed by freelance videographer Eric VanDussen, just moments before Monday's hearing, contends.
Since 2020, VanDussen has been gathering video footage for a possible documentary on extremism in Michigan, and although he is not an attorney, he previously objected to Stepka's protective order, in court, and represented himself.
On Monday, VanDussen filed a motion to intervene in circuit court, seeking to have Stepka's protective orders set aside.
In the motion, VanDussen referenced Michigan's court rules, which state judges can issue protective orders in a criminal case, but these orders must be issued as the result of a motion, a hearing and a demonstrated good cause.
Stepka simply had stipulated to the protective orders he signed in the case, court records show. There was no motion, no hearing and no showing of good cause, VanDussen said.
"If judges and prosecutors expect the public to comply with court rules and statutes that govern when and how court records can be withheld from the public, they should do so as well," VanDussen said.
Elsenheimer did not refer to VanDussen's motion, which now appears to be moot after the judge ordered the case file be made publicly available.
That does not lessen VanDussen's ire, however.
"I believe my First Amendment right to gather newsworthy information was violated in this entire process," VanDussen said. "I think that's my strongest belief in all this."
A person must have standing to intervene in a criminal case, meaning a member of the public or media who is aggrieved about an aspect of court procedure they don't agree with, generally will not be allowed by a judge to play any official role in the case.
But VanDussen believes he did have standing to file the motion, after one of the defendants, Eric Molitor, sat for a Jan. 8 on-camera interview with VanDussen, but stopped short of sharing as much information as he wanted to, because of the protective order.
"If it was up to me, I have a flat — a little thumb drive thing and I got this (expletive) computer thing that the Attorney General's handed over. I'm like, what the (expletive). I mean, you asking about all this stuff, dude. I can show you stacks of paper. I got all of it."
Defense attorneys, during the preliminary hearing, accused prosecutors of "cherry-picking" evidence, using in court, for example, brief audio clips the attorneys said were taken out of context from hours-long recordings made by undercover FBI agents and criminal informants.
Molitor, in the transcript, tells VanDussen he was not present when many of the recordings were taken.
Evidence presented in court showed on the drive that Molitor twice used his phone to search for the address of the governor's summer home.
In the transcript, Molitor says when Adam Fox invited him to ride along Aug. 29, 2020, on a drive to the Elk Rapids area, Molitor says in the interview transcript he did not know it was to surveil the Gov. Gretchen Whitmer's summer home.
A Grand Rapids jury in federal court last year found Fox and another defendant, Barry Croft Jr., guilty of conspiracy charges related to the plot. Fox received a 16-year prison sentence. Two other men who had pleaded guilty received lesser sentences of between 2 1/2 and 4 years in prison.
Federal defendants Brandon Caserta and Daniel Harris were previously acquitted by a jury.
Three men facing state charges in Jackson County — Joe Morrison, Pete Musico and Paul Bellar — in October were convicted of providing material support or resources for an act of terrorism, among other charges, and sentenced to between seven and 12 years in prison.
Case files in the Jackson case remain under a protective order and Elsenheimer on Monday said he'd spoken with the judge in that case, 4th Circuit Court Judge Thomas Wilson, to get "a flavor" of how those cases were adjudicated.
"Out of courtesy he did speak to me and so I understand the reasoning behind his decision to keep the file closed," Elsenheimer said.
No trial date for the Antrim County defendants has been set, although Elsenheimer said he expected the trial to begin sometime in June.