Judge weighs push to release Whitmer kidnapping evidence to news groups

A federal judge indicated Wednesday she will rule on a request to release photographs, text messages, audio recordings and video gathered by federal agents who arrested an accused ringleader of a plot to kidnap and kill Michigan Gov. Gretchen Whitmer.

Lawyers for several news outlets, including Buzzfeed; The Detroit News; Scripps Media Inc., owner of WXYZ-TV (Channel 7); and the New York Times are seeking access to the exhibits, arguing the public has the right to review them to understand why Delaware resident Barry Croft was ordered held without bond pending trial this fall.

They made their arguments Wednesday in front of U.S. Magistrate Judge Sally Berens of the Western District of Michigan, contending that access to the exhibits used at Croft's bond hearing will not automatically taint a jury pool and that both parties in the case have the opportunity to screen potential jurors.

Berens expects to issue a written order on the request.

"Both sides are going to be concerned about biased jurors," Buzzfeed lawyer Joseph Richotte said Wednesday. "Certainly, Mr. Croft, I understand, is concerned there are going to be those who wish to convict him. The government, I suspect, is also going to be concerned that there are people who sympathize with his anti-government sentiments having lived through a year of lockdown imposed by the alleged victim.” 

But Berens said people had physical and telephonic access to the court proceeding where the exhibits were used, diminishing arguments about public interest and undue influence at trial.

"It seems somewhat unlikely that this additional release of information would affect your client’s right or ability to choose a fair and impartial jury," Berens told Joshua Blanchard, Croft's attorney. "At the same time, it also seems like a small incremental benefit to the public.”

Blanchard argued that, with a trial date four months out and the recordings already played at the detention hearing, there isn't a compelling interest to release the audio recordings before the trial.

"They could hear these things; they could report the words," Blanchard said of media who attended the hearing. "The question is, can they publish all over social media my client’s voice?”

The kidnap conspiracy case is one of the most high-profile cases of extremism in the country, drawing international interest in allegations involving a group of men said to be angered by state restrictions on travel and business during the COVID-19 pandemic.

Croft, 45, of Bear, Delaware, is one of two accused ringleaders in the alleged kidnapping conspiracy. He was ordered held without bond in January following a detention hearing in which an FBI special agent said Croft claimed he had permission from God to commit murder and was the national leader of a militia group that rioted at the U.S. Capitol.

Croft is one of five people awaiting trial on a kidnapping conspiracy charge that could send them to federal prison for life. A sixth man, Hartland Township resident Ty Garbin, has pleaded guilty and is cooperating with the government.

"In a case of such gravity, judicial and prosecutorial accountability are of paramount importance," Buzzfeed lawyer Richotte wrote to Grand Rapids U.S. District Judge Robert Jonker. "The public has a right to be satisfied that the defendants are treated fairly, that their rights are respected, and that justice is done. This necessitates public access to all proceedings and to all evidence admitted for and against the defendants in open court."

Croft opposes releasing the exhibits until after a trial starting Oct. 12 in federal court in Grand Rapids. Releasing exhibits in such a high-profile case could taint the jury pool, Blanchard wrote to the judge.

"Because of the high-profile nature of the proceeding and significant media attention it has received, releasing the exhibits before their admission at trial poses a risk of tainting the jury pool," Blanchard wrote.

Andrew Pauwels, representing The News at Wednesday's hearing, said the actual audio and video paint a more complete picture of the factors influencing Croft's actions and the court's bond denial.

"For most of these items, a description already exists in the public domain," Pauwels said. "But many of these things are not easily susceptible to accurate description.”

Buzzfeed's lawyers noted a double standard regarding transparency among those awaiting trial in federal court. The government released photos and videos of the other defendants after they were denied bond last year.

"An independent judiciary is a hallmark of republican government, but independence is not freedom from scrutiny," Buzzfeed's lawyer wrote. "Given the presumption of access, and the important role that access plays in self-government, the Court should grant access to the requested evidence."

Prosecutors released exhibits during the earlier detention hearings because there were no objections from defense lawyers, according to court records.

But prosecutors refused to release copies of the Croft exhibits, saying “the timing of (this) request, the exhibits, defendant, and defense counsel are different,” according to Buzzfeed's lawyer.

The News' lawyer, Leonard Niehoff, argued the public "has been deprived of a fair opportunity to consider that evidence for itself."

"It has been asked to accept what it has not been allowed to see," Niehoff wrote. "No adequate justification has been offered for this extraordinary frustration of the public’s right to know."

Croft's lawyer said Buzzfeed failed to attend or listen to a January detention hearing that was open to the public. A reporter with The News covered the hearing and wrote about Croft's unsuccessful attempt to be released on bond.

eleblanc@detroitnews.com