Last 2 Whitmer kidnap suspects will go to trial again; judge denies request to toss case

A federal judge on Thursday denied motions to acquit the remaining two suspects in the alleged plot to kidnap Gov. Gretchen Whitmer, telling the men and their attorneys there was still enough evidence for the government to make a case against them in a second trial.

U.S. District Judge Robert Jonker informed Adam Fox, Barry Croft, their attorneys and government prosecutors a start date for a second trial is tentatively set for Aug. 9.

“Based on the evidence from the trial, certainly a rational juror could draw inferences of guilt,” Jonker said.

More: 2 Whitmer kidnap plot suspects found not guilty; mistrial declared for other 2

Attorneys for Fox and Croft argued previous acquittals of Daniel Harris and Brandon Caserta in the initial trial were grounds enough to have their clients acquitted Thursday.

“I think the records produced in the trial showed a number of deficiencies difficult for the government to overcome,” said Christopher Gibbons, who is representing Fox.

Fox, who Gibbons painted as a lonely stoner who wasn’t capable of leading such a conspiracy in the first trial, sat next to his lawyers, dressed in an orange jumpsuit and cuffed at the wrists and ankles.

In April, a jury found Harris and Caserta not guilty of any charges levied against them, ending their detention after they, Fox, Croft and two men who ultimately pleaded guilty, Kaleb Franks and Ty Garbin, were arrested by FBI agents in Oct. 2020.

More: How 2 militia members turned on their comrades in Gov. Whitmer kidnap trial

But the jury couldn’t reach a verdict against Fox or Croft, leading to a mistrial. The government has signaled its intent to try the pair again.

Prosecutors have painted Fox as the conspiracy’s ringleader — which Gibbons argued against in the initial trial. He again said Fox’s involvement with meetings, training exercises and encrypted online chat rooms were a product of Fox’s association with an FBI informant known to the group as “Big Dan.”

“The record was very clear that the (confidential human source) known as Dan was being given clear direction by the FBI,” Gibbons argued Thursday.

“Adam Fox was merely on the receiving end of instructions to do and say things that would make him look like the leader.”

Croft’s attorney, Joshua Blanchard, also pointed to the previous acquittals as justification for Croft to go free, telling Jonker he didn’t believe there was enough evidence to convict Croft, based on the outcome of the first trial.

Assistant U.S. Attorney Nils Kessler argued, however, even “slight and circumstantial” evidence produced in the first trial was enough evidence of the existence of a conspiracy to kidnap Whitmer. He pointed to training sessions, audio recordings captured at meetings and the equipment Fox and Croft had — flex cuffs and bomb-making equipment, respectively — as items a jury could consider to be evidence of a conspiracy.

He also pushed against arguments of “entrapment,” or the idea that the men were led by undercover FBI agents and rogue informants to launch a conspiracy. Additionally, he argued, guilty pleas from Franks and Garbin should merit a second trial against Croft and Fox.

Both Franks and Garbin testified on the government’s behalf in the first trial. Garbin is currently serving a six-year sentence, while Franks has yet to receive a sentence.

Kessler argued the first case for the government with fellow U.S. Assistant Attorney Jonathan Roth. Roth withdrew from the case shortly after the initial verdict.

Roth, who was not required to provide any reason for withdrawing, was present at the Gerald R. Ford Federal Building in Grand Rapids on Thursday, but was not seen inside Jonker’s courtroom.

Jonker ultimately sided with government prosecutors, informing Fox and Croft they would be tried again.

“I completely understand the force of the (acquittal) argument,” Jonker told the defense. “I’m not sure the law addresses that practical urge.

“I think in most contexts, the government can go to trial again if it wants to.”

More: 'Honey, I'm building explosives': 12 Key moments in Whitmer kidnap plot trial

Lawyers from both sides said they don’t expect a second trial to take as long as the first one, which lasted about a month. Attorneys on both sides ballparked a two-week timeframe for the second trial.

Gibbons said he plans on again focusing his defense of Fox on the idea that he was entrapped by the government.

Blanchard said he would have to cancel a planned vacation, but ultimately agreed to the timeline presented by Jonker. Leaving the courthouse Thursday, he said the acquittals for Harris and Croft will cast a shadow over a second trial.

“The jury found that there wasn’t enough evidence that these other guys were involved,” Blanchard told reporters. “I think that’s pretty compelling that their case was weak.”

In the first trial, jurors were shown a variety of testimony, videos, audio recordings and chat room recordings, as well as the physical evidence the government admitted, including the rifles and equipment prosecutors purport were intended to be used in a plot to kidnap Whitmer.

In total, the government entered more than 400 exhibits of evidence.

Contact Arpan Lobo: alobo@freepress.com. Follow him on Twitter @arpanlobo.  Become a subscriber today.

This article originally appeared on Detroit Free Press: Remaining Whitmer kidnapping suspects will go to trial again