Judge orders new trial for two accused Whitmer kidnapping plotters

Kayla Ruble
The Detroit News

Grand Rapids — A federal judge on Thursday ordered two men accused of plotting to kidnap Gov. Gretchen Whitmer to stand for another trial, nearly three months after jurors failed to reach a unanimous verdict on their guilt or innocence.

Prosecutors pushed to hold new trials for Grand Rapids resident Adam Fox, 39, and Delaware trucker Barry Croft, 46, after two of their alleged co-conspirators in the plot were found not guilty.

Assistant U.S. Attorney Nils Kessler argued during the Thursday afternoon hearing in Grand Rapids that the evidence against the two remaining defendants was enough for a conviction.

Barry Croft and Adam Fox

“Even circumstantial and slight evidence is enough to prove for conspiracy,” Kessler told the judge, reminding the court that two members of the alleged conspiracy have pleaded guilty. 

Both defense teams urged the judge to toss the charges in a case that had been dogged by controversy and scandal. The defense has raised questions about the FBI’s conduct and use of informants, including the indictment of rogue FBI informant Stephen Robeson on a gun crime. The defense alleged that FBI agents and informants had orchestrated the kidnapping conspiracy and entrapped the men.

“I think an acquittal is the right thing to do,” Fox's lawyer Christopher Gibbons said during the hearing.

Chief U.S. District Judge Robert Jonker disagreed.

“A rational jury, in my view, could still rule against Mr. Fox, rule against Mr. Croft,” Jonker ruled from the bench. “We will need to have another jury weigh the evidence.” 

The judge said he wanted to start a new trial "as soon as we can."

As he walked the attorneys through the rationale and case law for his decision,  Jonker said he understood the defendants' perspective that their cases should be dismissed. But the argument does not hold weight from a legal perspective, he said.

"“I completely understand the practical forces of that argument. ... The law doesn’t support the practical urge," Jonker said from the bench. 

Fox and Croft looked on from the defense tables, again dressed in orange prison jump suits, no longer wearing the button down shirts and ties they wore during the jury trial. 

A tentative trial date set for August. Kessler said he expected the second trial to take two weeks.

Fox and Croft's requests to be set free, made two months ago in late April, came after jurors deadlocked following a 20-day trial in the largest domestic terrorism case in recent U.S. history. Two others — Lake Orion resident Daniel Harris, 24, and Brandon Caserta, 34, of Canton Township — were acquitted. 

Defense lawyers spent months raising questions about FBI agent conduct and contending that a team of investigators and informants orchestrated the conspiracy and entrapped the four men, a ragtag band of social outcasts who harbored anti-government views and anger over COVID-19-related restrictions imposed by Whitmer early in the pandemic.

"The evidence presented at trial, even when viewed in the light most favorable to the government, did not establish that there was an agreement between Adam Fox and any of the other defendants to kidnap the governor or to purchase and use a 'weapon of mass destruction' in furtherance of that kidnapping," Fox's lawyer Gibbons wrote in a late April filing. "A government agent or informant cannot be a conspirator."

Following Jonker's decision, Gibbons said he was not surprised by the ruling. Asked whether the second jury should be made aware of the not guilty verdicts in the first trial, he said it was up to the judge to decide.

“To me it doesn’t matter. The evidence is what the evidence is,” Gibbons said, standing outside the Gerald R. Ford Federal Building. 

More:Lack of convictions in Whitmer kidnap trial followed year of scandal, warning signs

During the first trial, Harris was acquitted of possessing an unregistered destructive device but deadlocked on the same charge against Croft.

Croft is entitled to an acquittal because the jury determined "either the device was not a 'destructive device' or that Mr. Harris did not know that the device was a 'destructive device," Croft's lawyer Joshua Blanchard wrote in a late April filing. "It is not possible to logically determine which conclusion the jury reached, but either entitles Mr. Croft to an acquittal."

But Kessler countered during the hearing that the evidence showed both defendants had clearly expressed their desire to kidnap the governor. He noted there were "hours and hours" of audio of Croft talking about kidnapping the governor and that Fox stated on multiple occasion he wanted to "snatch and grab" Whitmer.

"I don’t think you could be more clear that you wanted to kidnap the governor," Kessler said.

kruble@detroitnews.com

Staff Writer Robert Snell contributed.