Judge denies media access to audio recordings from alleged Whitmer kidnap plotter

Beth LeBlanc
The Detroit News

Correction: This story has been corrected to indicate U.S. Magistrate Judge Sally Berens serves in the Western District. 

A U.S. magistrate judge has denied a request from several media outlets that sought audio linked to the case against a man accused of attempting to kidnap Gov. Gretchen Whitmer. 

But Western District Magistrate Judge Sally Berens granted the release of several photos and a video admitted during Delaware defendant Barry Croft's bond hearing in January. 

Media were able to observe and report on each of the exhibits at the Jan. 13 bond hearing, which was "sufficient to satisfy the First Amendment," Berens wrote Tuesday. 

The public's right of access to judicial records is "neither a constitutional right nor an absolute right," but one left to the "sound discretion of the trial court," the magistrate wrote. 

"...The incremental risk to Defendant Croft's ability to secure a fair and impartial jury outweighs the modest burden to the common law right of public access in delaying the recordings' release until the trial of this matter," Berens ruled.

Barry Croft

Lawyers for news outlets, including Buzzfeed; The Detroit News; Scripps Media Inc., owner of WXYZ-TV (Channel 7); and the New York Times sought access to the exhibits on the argument that the public has the right to review them to understand why Croft was ordered held without bond pending trial.

The kidnap conspiracy case has drawn international interest as one of the highest-profile cases in the country involving men angered by state restrictions on travel and business during the pandemic. 

Croft, 45, of Bear, Delaware, is one of five people awaiting trial on a kidnapping conspiracy charge that could send them to federal prison for life. He was ordered held without bond in January. 

He is one of two accused ringleaders in the case. A sixth man, Hartland Township resident Ty Garbin, has pleaded guilty and is cooperating with the government.

The photos in question in the case Berens decided Tuesday include ones of Croft with a "boogaloo" flag and a shotgun and of a bridge near Whitmer's summer home that the defendants allegedly planned to blow up. A video also being sought showed Croft firing a semiautomatic assault rifle at a field training exercise in Wisconsin. 

Audio recordings at issue in the case included one of Croft at a field training exercise in Wisconsin and another of Croft at a militia group meeting in Ohio.

The audio recordings, Berens wrote Tuesday, "are more inflammatory" than the images and video and include statements from Croft regarding his "intent to commit acts of terrorism" and explicit discussions regarding Whitmer's kidnapping. 

The audio recordings are likely to be widely distributed if released and, because of the "one-sided nature" of bond hearings, are likely to lack the contextualization or defense Croft's lawyers could offer at trial, the magistrate said. 

"While the audio recordings were certainly central to the court's decision on bond, there has been ample opportunity for oversight, and delayed release of the exhibits would do little to impede that," Berens wrote.