Judge in Whitmer kidnapping case deals feds a setback
A Grand Rapids federal judge Tuesday refused to let prosecutors share secret grand jury testimony with state prosecutors who are trying to convict eight men on terrorism charges related to the alleged plot to kidnap and harm Gov. Gretchen Whitmer.
U.S. District Judge Robert Jonker said federal prosecutors failed to justify the need to share the privileged testimony central to a case that has shed light on violent extremism in Michigan.
The testimony prosecutors wanted to share was not specified in court records. But the request last month coincided with the surprise cooperation of Hartland Township resident Ty Garbin, 25, who pleaded guilty to kidnapping conspiracy and agreed to help prosecutors — and testify in front of grand juries.
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"Grand jury testimony is presumptively secret, and a party must normally demonstrate a 'particularized need' for the material to overcome the presumption of secrecy," Jonker wrote. "The government has not made, or even attempted to make that showing here."
Federal prosecutors, however, can try again by providing more information, the judge added.
The order comes more than three weeks after prosecutors filed a request that shows coordination between state and federal crime fighters who are prosecuting 14 people. The men are accused of being violent extremists motivated by anger over state restrictions on travel and business during the COVID-19 pandemic.
Thirteen other people are charged in connection with the plot. The kidnapping conspiracy charge is punishable by up to life in federal prison, and Garbin will be sentenced July 8.
Grand jury secrecy is paramount considering 13 people are still facing charges amid an ongoing investigation, the judge wrote.
Jonker had other concerns with the government's request to share grand jury testimony. Prosecutors failed to specify which information they wanted to share with the state.
"The government appears to be asking for blanket permission to disclose to the state any grand jury testimony already taken, or that may be taken as the grand jury continues its own investigation," Jonker wrote. "The kind of blanket permission would turn the federal grand jury into 'an arm of the state...'"
The judge's order is the latest legal development since Jonker delayed the trial to give defense lawyers more time to analyze evidence. That evidence includes thousands of hours of recorded audio, more than 13,000 pages of encrypted text messages, videos and reports from undercover FBI agents and informants.
Prosecutors say the men charged in state and federal court were motivated by anger over state restrictions on travel and business during the COVID-19 pandemic. The federal court defendants facing federal kidnapping conspiracy charges were part of a broader attempt to spark a civil war by overthrowing the government and kill police personnel, according to the government.
Defense lawyers have portrayed their clients as tough talkers who were exercising their First Amendment rights who never carried out any kidnapping plot.
Prosecutors say Garbin hosted training sessions at his rural property in Luther and helped build an improvised explosive device comprised of black powder, balloons, a fuse and BBs for shrapnel.
He used emojis in one private chat while suggesting to blow up a bridge near the property to hinder law enforcement and joined a nighttime surveillance run at the governor’s vacation home, according to the FBI.
Prosecutors accused Garbin of training for an attack to overthrow the government, and suggested “shooting up the governor’s vacation home,” according to FBI Special Agent Richard Trask.