Judge tosses terrorism threat charge against 3 accused in alleged Whitmer plot
Three men accused in an alleged plot to kidnap Gov. Gretchen Whitmer will not face charges of false report or threat of terrorism, a Jackson County judge ruled Monday.
Judge Michael Klaeren of 12th District Court in Jackson dismissed the charge against Joseph Morrison, 26, and Pete Musico, 43, both of Munith, and declined a request by prosecutors to add it to the charges against Paul Bellar, 22, of Milford.
Klaeren also on Monday ordered Bellar, Morrison and Musico to stand trial on three remaining charges, gang membership and providing material support for terrorism, both punishable by up to 20 years in prison, as well as felony firearm, punishable by up to two years in prison.
Morrison, Musico and Bellar are among seven men accused of having ties to the militia group Wolverine Watchmen and are charged in the alleged plot. The others include Shawn Fix of Belleville, Eric Molitor of Cadillac, Michael Null of Plainwell and William Null of Shelbyville. The men had faced a total of 19 felony charges for firearms and terror-related acts.
After onboarding new members through mediums such as Facebook, the group's conversations took place in encrypted chats. The limited nature of those chats is why the terror threat charge was dismissed, Klaeren said.
"There has to be some form of intent here to incite mayhem," said Klaeren.
Klaeren added that an encrypted communication network, not accessible to the general public, was "in many respects no different than thinking the thought to yourself."
"One does not need to participate in all acts of a conspiracy," Klaeren said, after hearing arguments from prosecutors and defense attorneys. "One does not even need to know all the co-conspirators."
The terror threat charge carried a possible penalty of 20 years in prison.
In a statement, Attorney General Dana Nessel said the state would "explore all options for reconsideration of the charge moving forward."
The gang membership charge and the felony firearms charge were dependent on the material support for terrorism charge, Klaeren said.
But just as the secret nature of the group's communications is why the terrorism threat charge was tossed, Klaeren used it as a reason why the gang membership charge could not be dismissed without examining the material support charge.
"Why all the secrecy?" Klaeren said.
He noted the group had a "multi-tiered vetting process, secret means of communication, required training and exclusive membership."
Klaeren said the three men were "joined at the hip," and compared them to mountain climbers at a summit.
"They started a very big snowball that wasn't going to stop," Klaeren said.
That the kidnap plot never materialized is not "fatal" to the material support for terrorism charge, he said.
"Even something stupid can be a plan," Klaeren said.
Klaeren called the three men "erratic" and said there's a reason to believe that a successful kidnapping of Whitmer would "result in injury or death or the commission of other violent crimes."
He cited the alleged plot, at least seven training sessions, and "repeatedly exposing their expertise to others," as key in finding the gang membership and material support of terrorism charges reasonable.
As for the felony firearm charge, Klaeren cited "direct testimony" that firearms were present at the training sessions.
Andrew Kirkpatrick, Bellar's attorney, argued that Bellar "provided no training, no surveillance, no material support" for any act of terrorism and that the state had proven no illegal acts.
"I'm asking the court deny the bind over for my client," he said. "It's not illegal to be a member of a militia. Many people in Michigan would be arrested if it were."
The Michigan Attorney General's office likened the mens' armed participation in an April 30 storming of the Michigan Capitol in Lansing to the Jan. 6 riot at the U.S. Capitol.
The defense disagreed.
Kirkpatrick argued that carrying guns in the Capitol is not illegal, and that entry was only possible after passing a COVID-19 questionnaire. Signs were not allowed at the Capitol that day, according to previous testimony, but open carry guns were.
"To compare that to what happened on Jan. 6 is highly improper," said Kareem Johnson, Musico's attorney. "How it happened in Michigan is how it's supposed to happen: you stay in publicly accessible areas, you comply with law enforcement, and you express your grievances."
The state suggested that the suspects "banged on a door, looking for the governor," but Kirkpatrick said that's not illegal either.
"My client stupidly said 'I'm down for anything,' but he quickly figured it out," Kirkpatrick said, and left Michigan long before early August when the alleged plot to kidnap the governor intensified.
Nicholas Somberg, an attorney for Morrison, said his client was not only not a driver of any plot against Whitmer but he was specifically "excluded" from encrypted group chats.
"There's just nothing there," Somberg said.
Even the felony firearm charge has no basis, he argued, as carrying long guns at the Capitol was not an illegal act, and the government never proved he possessed a gun while doing anything illegal.
Johnson argued Musico was not taken seriously by the group, comparing him to a fan at a Detroit Lions game, second-guessing the coaching staff, but ignored.
"He didn't have a military skill set," Johnson said.
'Not out of the woods'
Mike Rataj, a Detroit defense attorney, said he hadn't seen Monday's court hearings, but noted that the three remaining charges each defendant faces are serious.
"The prosecution has the burden of proof, but the defense still has its work cut out for it," Rataj said. "The defendants are not out of the woods by any stretch."
Rataj was a defense attorney in the 2010 federal case against the Hutaree militia that unraveled. Despite that experience, he noted the federal insurrection laws at issue in that case are a "different animal" from the state terrorism statute.
William Swor, a Detroit defense attorney with 49 years of experience, was lead attorney on the Hutaree case. Swor is president of the American Board of Criminal Lawyers.
While noting he wasn't familiar with the facts of Monday's hearing, Swor said that "all of the evidence, and all of the logical inferences drawn from that evidence, are construed in favor of the prosecution" at a preliminary examination.
"If I were the prosecution, I'd certainly be concerned" to see a charge tossed at such a hearing, Swor said.
"A jury might say, 'This was a gang, but it's the gang that couldn't shoot straight,'" Swor said. "A jury will have to decide."
Klaeren cited two other alleged plotters who are charged in federal cases in his ruling on Monday: Adam Fox and Barry Croft, and referred to "the material support (Morrison and Musico) provided to the terrorist Adam Fox" as a reason to bind them over for trial.
Croft, of Delaware, he referred to as an "out of state individual," who benefited from "extensive trainings."
Joshua Blanchard, Croft's defense attorney, said he couldn't comment without the full context of the judge's remarks, but added that "there are a lot of facts that haven't made it out in the state case" that will emerge in federal court.
Fox's defense attorney didn't immediately respond to a request for comment.
After making his ruling, Klaeren again addressed bond for Bellar. He remains jailed on a $150,000 bond and was hoping to have that lowered.
"I think you may be the loosest cannon" of the three defendants, Klaeren said.
"You're the youngest of the defendants," Klaeren told Bellar. "You certainly have no money. To an extent you've been defanged, so I'm not going to raise the bond."