The core question at the trial of four men charged with plotting to kidnap Michigan Gov. Gretchen Whitmer is whether the FBI engaged in entrapment — the prohibited practice of cajoling or tricking subjects into committing crimes.
The FBI deployed undercover agents and informants in a sting that lasted months and ended in October 2020, when Adam Fox, Barry Croft Jr., Daniel Harris and Brandon Caserta were arrested. Prosecutors say the men were motivated by their hatred of government and fury over COVID-19 restrictions imposed by the Democratic governor. One witness said they hoped to prevent Joe Biden from winning the presidential election.
Here’s a look at entrapment and how its being addressed at the trial in a Grand Rapids federal court:
WHAT’S THE ORIGIN OF ENTRAPMENT?
It's a relatively new concept in U.S. law. According to a 2014 decision by Chicago’s 7th U.S. Circuit Court of Appeals, a judge in 1864 mocked the idea that anyone could be entrapped by law enforcement, quoting Eve in the Bible explaining why she ate from the tree of knowledge: “The serpent beguiled me and I did eat.”
“This plea has never since availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized ethics … it never will,” the judge said.
However, the prohibition of entrapment emerged in the first half of the 20th century as an important check on overzealous criminal investigators.
WHAT ARE THE MAIN ELEMENTS OF ENTRAPMENT?
Deceiving targets or utilizing agents who pretend to be someone they're not is an accepted investigatory technique and doesn’t necessarily suggest entrapment, courts have ruled.
Entrapment occurs when investigators use coercion or persuasion to get targets to commit crimes that they showed no predisposition to commit until undercover agents or informants entered the picture.
In a 1988 landmark case, Mathews v. United States, the U.S. Supreme Court described someone without a predisposition as “an unwary innocent” versus “an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.” The latter can't claim entrapment.
Prosecutors must prove beyond a reasonable doubt that defendants weren't entrapped.
WHAT’S THE MAIN PITFALL OF ARGUING ENTRAPMENT?
Defense attorneys are essentially admitting to jurors that their client did the deeds alleged in the indictment. They must surrender claims usually at the core of a defense, including that clients weren't at the scene of the crime or that their arrests were cases of mistaken identity.
To succeed with an entrapment claim, the defense must convince jurors that — given the right amount of deceit and pressure — they, too, might acquiesce to committing a major felony. That’s a hard sell.
HOW DID ENTRAPMENT BECOME CENTRAL TO THIS TRIAL?
Judges usually assess before trial whether there’s a minimum level of evidence to justify an entrapment defense.
The presiding judge, Robert Jonker, initially said he would wait until evidence was entered at trial, but abruptly changed his mind during opening statements after defense lawyers violated his instructions, repeatedly suggesting the FBI entrapped their clients.
After asking jurors to step out of the room, the judge said he realized waiting to rule was untenable since the defense had structured their whole strategy around an entrapment defense. He told them they could be upfront with jurors about it.
WHAT HAS THE DEFENSE SAID SO FAR?
In openings, they portrayed their clients as big-talking, pot-smoking weekend warriors, susceptible to manipulation by FBI operatives who encouraged them to speak about far-fetched, ominous schemes.
“The point is, everything that moves this case forward … it’s the government moving all of it,” Fox's lawyer, Christopher Gibbons, told jurors.
Joshua Blanchard, Croft’s attorney, said agents secretly recorded the men when they were “absolutely out-of-your-mind stoned.” In one session, he said, they spoke about strapping Whitmer to a kite to transport her.
“They knew it was stoned-crazy talk and not a plan,” he said of the FBI.
WHAT ABOUT PROSECUTORS?
They have endeavored to show the men weren't just predisposed to going along with a kidnapping plot but that they were talking about it before they came into contact with federal agents and informants. Prosecutors also said the defendants took steps to carry out the plans, including scouting Whitmer’s home.
“These were not people who were all talk,” prosecutor Jonathan Roth said in his opening statement. “These were people who wanted to separate themselves from people who were all talk.”
Government witnesses included co-defendants who pleaded guilty before trial and who testified that no one pressured them. Fox talked about snatching the governor “every time I saw him,” Kaleb Franks, who pleaded guilty in February, told jurors.
DOES AN ENTRAPMENT DEFENSE EVER SUCCEED?
After an arrest, lawyers often declare their clients were entrapped, but the risks of pursuing such a strategy usually dissuade them from arguing it at trial.
An entrapment defense is always a long shot. But that's not to say it never works.
Among the best known successes was in the 1984 federal drugs trial of iconic automaker John DeLorean. The Detroit-born DeLorean was accused of conspiring to sell $24 million of cocaine to save his money-losing venture building futuristic cars.
He was charged after an informant who had recently been convicted of drug trafficking went to the FBI to say DeLorean had approached him about such a scheme.
Jurors acquitted DeLorean after testimony that it was the informant who first approached DeLorean and then persuaded him that the drug deal could pull his faltering business out of a deepening financial hole.
