Defendants in Gov. Whitmer kidnap plot alleviates bias by judge, jury in bid for new trial

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GRAND RAPIDS, MI Two men convicted of conspiring to kidnap Gov. Gretchen Whitmer are seeking new trials alleging juror misconduct and bias by the judge who limited defense cross-examination of a key prosecution witness.

Barry Croft Jr. and Adam Fox on Thursday, Sept. 8, asked for a hearing on the issues in a request for new trials.

Throughout the trial, the Court expressed its opinion on the persuasiveness of the evidence being elicited by defense counsel on cross examination, defense attorneys wrote.

Many times, the Court interjected with commentary about defense counsel wasting time, asking questions that he viewed as unpersuasive, commenting that he believed that counsel was being unnecessarily repetitive, threatening to impose time limits on defense counsel only, or otherwise demeaning the performance of defense counsel.

Chief US District Judge Robert Jonker set a 50-minute limit for cross-examination of a former co-defendant, Kaleb Franks, who took a plea deal and tested for the prosecution. Attorneys Josh Blanchard, representing Croft, and Christopher Gibbons, representing Fox, shared the allotted time after the governments 50-minute direct examination.

The defense-only time limit imposed only for Franks testimony was not kept from the jury, the attorneys said.

During cross-examination of Mr. Franks, the Court impatiently interjected with the amount of time remaining for each lawyer. During Crofts examination, the Court commented, in front of the jury, to the effect that counsel could use his time in an ineffective manner if he wished.

On the next day of trial, the judge said the rule known as Bertelsman Rule – was no longer in effect.

Defense attorneys said the rule hurt cross examination of a key cooperating witness who had tested that he had agreed with the defendants to commit the crimes charged.

The attorneys also objected to the judges handling of a juror who, according to the defense, talked about getting on the jury to convict Croft, 46, of Bear, Delaware, and Fox, 38, of Wyoming, Michigan.

On the first day of testimony, a jurors co-worker told Crofts representatives that the juror was hoping to get on the Whitmer Kidnapping trial, and intended to hang the defendants if (the juror) was selected.

The judge talked to the juror privately and determined that the juror was not biased.

The judge said in a court filing that the information did not come directly from a co-worker who witnessed the alleged statement being made, rather it was a second-hand report.

The record at present does not demonstrate dishonesty, Jonker wrote in an opinion that was unsealed after trial.

During the interview, the Court squarely presented the report of the Jurors alleged statements. The Juror repeatedly and consistently denied making any such statements.

Blanchard, who wanted to be involved in talking to the juror, said that the judges seven minutes of unsworn questioning was not probing, did not follow up on potential discrepancies from (the jurors) voir dire testimony, and invited the juror to deny allegations without any risk of consequence for false statement.

Joshua Blanchard, center right, the defense attorney representing Barry Croft; and Christopher Gibbons, far right, the defense attorney representing Adam Fox; speak to journalists on Tuesday, Aug. 23, 2022, after a jury convicted Barry Croft Jr. and Adam Fox of conspiring to kidnap Gov. Gretchen Whitmer. (Cory Morse | MLive.com) Cory Morse | MLive.com

The defense attorneys wanted the court to order a hearing during trial to compel testimony from the jurors co-worker. Later, defense investigators talked to a second co-worker who also heard second-hand that the juror, before trial, wanted to convict their clients, the attorneys wrote.

The second worker allegedly provided the name of the first-hand witness who refused to talk to defense investigators.

Meanwhile, the second worker told an investigator that a jurors family member who also worked at the same place had announced that (the juror) contacted (the family member) from jury deliberations, discussing the status of deliberation and that the jury had reached a verdict but that it had not been delivered in court yet, defense attorneys wrote.

It violated the judges instructions to not talk to anyone outside the jury about the case or verdict status, the defense said.

The two-week trial, which began in early August, was the second for Croft and Fox. A jury earlier this year could not reach a verdict resulting in a mistrial. Two co-defendants, Brandon Caserta and Daniel Harris, were acquitted.

Federal prosecutors said Croft and Fox were leaders of a multi-state plot to kidnap Whitmer from her Elk Rapids summer home and put her on trial for treason.

They attended meetings and training sessions and took part in surveillance of Whitmers home.

In all, 14 were arrested on state and federal charges.

Croft and Fox were convicted of conspiracy to kidnap and conspiracy to use a weapon of mass destruction, both potential life offenses. Fox is set for sentencing on Dec. 12 while Croft is to be sentenced Dec. 28.

Both have been locked up since their arrests in early October 2020.

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