Accused Whitmer kidnap plotters won't get early look at witness list, judge rules

Robert Snell
The Detroit News

A federal judge Friday refused to give defense lawyers in the Gov. Gretchen Whitmer kidnapping conspiracy case an early look at the government's witness list, saying premature identification would be risky.

U.S. District Judge Robert Jonker issued an order less than 24 hours after federal prosecutors fought an early release of their witness list. Defense lawyers should not get a copy due to safety concerns raised by an apparent drive-by shooting earlier this year at one suspected witness' workplace.

Barry Croft of Delaware holds a boogaloo flag in a photo used during his Jan. 13, 2021 bond hearing for his alleged involvement in the attempted kidnapping of Gov. Gretchen Whitmer.

The defense request revealed concerns about the safety of government witnesses in a case involving allegations of violent extremism, political violence and weapons of mass destruction.

There is no need to share the witness list before Sept. 23, three weeks before five men will stand trial in federal court in Grand Rapids, Jonker wrote in his order. The men are facing kidnapping and weapons of mass destruction conspiracy charges that could send them to prison for life and Jonker is concerned about exposing witnesses to danger or tampering.

"In a case that has already drawn significant publicity and that, by its nature, involves allegations of violence and threats of violence, those concerns are inevitably amplified," the judge wrote. "Early identification of witnesses would create risks that can and should be avoided in this case."

The order was one of many the judge filed Friday in response to defense motions. Jonker refused to have Kaleb Franks of Waterford Township stand trial apart from the others. Franks asked his case to be severed for trial because, unlike his co-defendants, he is not charged with conspiracy to use a weapon of mass destruction, possession of an unregistered destructive device and a short-barreled rifle.

The judge also denied Franks's request to move the trial out of Michigan based on presumed prejudice from pretrial publicity. Jonker said media coverage has been balanced, appropriate and that there has not been a "rush to judgment or steamrolling over constitutional rights."

Defendant Barry Croft of Bear, Delaware, Lake Orion resident Daniel Harris and Franks were seeking the witness list. Croft's lawyer, Josh Blanchard, sought the list as a remedy to the way the government shared evidence with defense teams, which he feels has been disorganized and duplicative.

Blanchard last month also raised questions about whether the FBI was trying to sabotage defense teams ahead of the landmark trial. He cited an audio recording of FBI Special Agent Henrik Impola talking about creating "disarray and chaos" for defense lawyers, whom he labeled "paid liars."

Prosecutors responded by saying they were worried about witness safety and described the drive-by shooting. Many details remained unclear Friday, including the location and identities of those involved. But the April shooting followed sustained attempts by Croft to identify government witnesses and confidential informants, according to prosecutors.

Prosecutors have said Croft, 45, is the national leader of the Three Percenters militia. He is portrayed in government filings as one of the plot ringleaders and the group’s bombmaker.

On April 12, a co-worker of one of the suspected witnesses called police following an apparent drive-by shooting, prosecutors wrote. The co-worker bears a passing resemblance to the suspected witness, prosecutors wrote.

Defense lawyers in the federal case are challenging the conduct of undercover FBI agents — including an agent who was recently arrested and charged with assaulting his wife — and claim the defendants were entrapped by the government and that there was no plot to kidnap Whitmer.

Twitter: @robertsnellnews