2 Whitmer kidnap suspects back in court with a request: Let us go

The remaining two suspects in the alleged Gov. Gretchen Whitmer kidnap plot return to court Thursday, hoping to convince a judge to do something a jury could not: acquit them.

Adam Fox, 38, of Potterville, and Barry Croft, 46, of Delaware, are facing a retrial after a jury deadlocked in April following a 20-day trial that ended in no convictions. The jury acquitted 24-year-old Daniel Harris, of Lake Orion, and 34-year-old Brandon Caserta, of Canton Township, on all counts. Jurors were unable to reach a unanimous verdict for Croft and Fox.

The prosecution has vowed to retry the men, who are accused of plotting to kidnap Whitmer out of anger over her handling of the COVID-19 pandemic.

But lawyers for Croft and Fox have asked a judge to acquit their clients, arguing there is not sufficient evidence to convict them of kidnapping conspiracy or agreeing to use a weapon of mass destruction. Prosecutors allege the men plotted to blow up a bridge near Whitmer's vacation house to slow down law enforcement, and practiced blowing up explosives during training exercises.

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The fate of the historic domestic terrorism case is now in the hands of a federal judge, with one side claiming the defendants were framed by rogue FBI actors trying to build their careers, and the other arguing the defendants were heavily armed, eager and ready to commit violence.

Chief U.S. District Judge Robert Jonker will hold a hearing on the matter at 2 p.m. in U.S. District Court in Grand Rapids. Under federal law, a judge may enter a judgment of acquittal if the government presents insufficient proof to sustain a conviction.

Jonker oversaw the trial, during which two co-defendants testified against the others, telling the jury that they willingly joined the plan to kidnap the governor, and so did the others. Ty Garbin and Kaleb Franks cut deals early on, pleaded guilty and agreed to cooperate. Garbin is serving a six-year prison sentence. Franks has not yet been sentenced.

The defense has long argued the FBI hatched and ran the kidnap plan, and the defendants were set up by rogue agents who infiltrated their group and enticed them into saying and doing things they wouldn't have otherwise.

"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," attorney Christopher Gibbons, who is representing Fox, wrote in court documents, adding: "A government agent or informant cannot be a conspirator."

The defense also argues there was no plan to kidnap the governor, nor any evidence that showed when or where "the plan" was made, or when the kidnapping would occur.

During the trial, the defense portrayed the defendants as stoners and big talkers who talked a good game and hated the government — but had no real plans to harm anyone. It was all puffery, they maintained.

The prosecution blasted that theory, arguing the defendants didn't just talk about kidnapping and hating Whitmer, but trained to snatch the governor, cased her house twice, mapped it out, bought night vision goggles and were "drifting around armed to the teeth, making homemade bombs."

“In America, there’s a lot of things you can do. You can criticize the government publicly, absolutely," Assistant U.S. Attorney Nils Kessler told jurors. "If you don’t like the government’s policies, you can protest them. If you don’t like elected leaders, you can vote them out at the ballot box. What you can’t do is kidnap them, kill them or blow them up.”

That's what the four defendants wanted to do, Kessler told jurors, stressing they never chose to leave the group when they heard talk of violence. Rather, he argued, they were willing participants in a crime that involved blowing up a bridge, assaulting Whitmer's security detail and any cop who got in the way, and kidnapping the state's highest-ranking politician because they were upset over her handling of the pandemic.

Tresa Baldas: tbaldas@freepress.com

This article originally appeared on Detroit Free Press: Whitmer kidnap suspects Fox, Croft want judge to acquit them