Despite the government’s extraordinary efforts to muzzle the defense, a jury in Grand Rapids federal court on Friday acquitted two men on charges including conspiring to kidnap Michigan Gov. Gretchen Whitmer. The jury was unable to reach a verdict on the other two who had been charged.
As a result, Daniel Harris and Brandon Caserta are now free men, while the federal judge overseeing the case called a mistrial on the counts against Adam Fox and Barry Croft. In a written statement after the verdict, Andrew Birge, the US Attorney for the Western District of Michigan, said that Fox and Croft “now await re-trial” although he did not say when that would be.
The outcome of the trial is a stunning rebuke to the prosecution, which at times appeared to view the case — one of the most prominent domestic terror investigations in a generation — as a slam dunk. The split verdict calls into question the Justice Department’s strategy, and beyond that, its entire approach to combating domestic extremism. Defense attorneys in the case, along with observers from across the political spectrum, have argued the FBI’s efforts to make the case, which involved at least a dozen confidential informants, went beyond legitimate law enforcement and into outright entrapment.
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“The jury clearly saw what the FBI was doing to create this case,” said Caserta’s attorney, Mike Hills, in an interview after the verdict was announced. “They saw it, and they didn’t like it.”
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But the most striking thing about the closely watched 15-day trial might be what the jury never got to see.
Both before and during the trial, prosecutors went to extraordinary lengths to exclude evidence and witnesses that might undermine their arguments, while winning the right to bring in almost anything favorable to their own side. As a result, defense attorneys were largely reduced to nibbling at the edges of the government’s case in hopes of instilling doubt in the jurors’ minds, and to making claims about official misconduct with vanishingly few pieces of evidence to support them.
Over and over during the course of the trial, the prosecution objected to any attempts by defendants to provide context for the often shocking soundbites and text messages shown in court — objections sustained by a judge who agreed that such material risked confusing the jury.
The result was, at least from the defense’s point of view, a stunningly one-sided presentation that left the preponderance of evidence out of court and gave jurors precious little to balance against the Justice Department’s claims.
“The government controls the evidence,” Fox’s attorney, Chris Gibbons, said in his closing statement last Friday, “and they can play whatever they want.”
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Defense attorneys in both the state and federal cases contended, in a series of court filings and pretrial hearings, that their clients may have been loudmouths, or even anti-government cranks, but they never actually intended to hurt anyone — and couldn’t have pulled off a kidnapping to save their own lives. Fox, the lawyers noted, was so hapless he lived in the basement of a vacuum cleaner store and was forced to go to the Mexican restaurant next door when he needed to use the bathroom. Croft, for his part, ranted about shooting down airships, cutting down every tree on the border between Ohio and Michigan, and setting off electromagnetic pulse weapons that his lawyer, Joshua Blanchard, characterized at trial as “movie stuff.”
Their statements, however nasty they might sound, were just talk, the defense said, and therefore protected by the First Amendment. To the degree that there was any actual plan to kidnap Whitmer, they added, it was the FBI that had cooked it up, while the government’s minions — as many as a dozen confidential informants — lured the defendants into half-heartedly playing along.
They said it was a case of entrapment and that they had hundreds of recordings, text messages, and Facebook posts that would shine a very different light on the government’s narrative. They included exhibits showing informants smoking cannabis with the defendants, plying them with offers of cash, and working them up into a lather with anti-government talk of their own. There was evidence of informants and FBI agents discussing ways to lure more suspects into the case, and extensive audio of defendants discussing absurd schemes involving stolen Blackhawk helicopters, 300-strong armies, and newly minted silver currencies that the defense believed showed the men were simply fantasizing.
But on Feb. 2, Judge Robert J. Jonker ruled that most of the evidence the defense hoped to present could not even be mentioned in court, let alone shown to the jury. Though the exhibits were direct audio recordings or transcriptions, just like much of the prosecution’s evidence, the judge dismissed the material as irrelevant hearsay.
He also ruled that defendants could not inquire about the past conduct of several FBI agents, though the government would be allowed to question the defendants about episodes in their own past.
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On the 13th day of the trial, a stream of potential witnesses arrived in the courtroom. They had all been subpoenaed by the defense. But addressing them one by one, the government warned them to think very carefully before testifying.
One of the prosecutors asked a woman named Taya Plummer pointed questions about her boyfriend, who plays no role whatsoever in the kidnapping case but is a member of an armed militant group in another state. The prosecutor, Jonathan Roth, noted that he wasn’t aware that Plummer herself was in any trouble with the law, but he left the unavoidable impression that could change if she made the wrong decision. As for how things would play out, “I’d leave that to her,” Roth added ominously.
If it was meant as a threat, it worked. Plummer said she would invoke her constitutional right against self-incrimination. Judge Jonker released her subpoena and excused her.
Under similar pressure from the government, six other potential defense witnesses — including Stephen Robeson, a controversial FBI informant at the heart of the investigation — announced that they, too, would prefer to remain silent. And defense attorneys told Judge Jonker that several additional witnesses intended to do the same, so they decided against even calling them to court. At least one of those individuals, a retiree from Virginia named Frank Butler, had been sent a letter by the Justice Department telling him he was the target of an investigation.
The prosecutors’ tactics were so heavy-handed that they could easily have backfired, causing the jury to wonder why it was so important to shut people up.
But the jury never saw any of it. They had been removed from the courtroom before these thinly veiled threats were made. All the jury saw was the result: a piteously threadbare defense.
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It was so thin, it was almost no defense at all. The prosecution had closed off so many of the defense’s options that last Thursday, Daniel Harris, a 24-year-old ex-Marine with a boyish face and a goofy sense of humor, decided to testify in his own defense, a risky move that, surprisingly, seems to have paid off.
“Daniel told me from day one that he was innocent,” said Julia Kelly, Harris’s attorney, on Friday afternoon. “The jury believed him.”
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Originally Posted by Zippyjuan
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