DETROIT — The ringleaders convicted of plotting to kidnap Michigan Gov. Gretchen Whitmer do not deserve a new trial because they failed to provide credible evidence of juror misconduct or that the judge was biased, prosecutors said in a court filing unsealed Wednesday.
U.S. District Judge Robert Jonker unsealed a redacted version of the government's filing, two weeks after lawyers for ringleaders Adam Fox and Barry Croft requested a new trial, arguing the judge was openly hostile toward the defense and revealing that one juror leaked details about deliberations. Fox and Croft were convicted in August of kidnapping conspiracy and conspiracy to use a weapon of mass destruction and are awaiting possible sentences of up to life in prison.
"New trials are reserved for cases in which a 'manifest injustice' has been done such that an innocent person may have been convicted," Assistant U.S. Attorney Nils Kessler wrote. "The defendants have not met their burden of establishing good cause for a new trial."
The unsealed filing is the latest legal development involving alleged juror misconduct, and judicial orders that the defense teams are using to try to upend convictions in one of the largest domestic terrorism cases in a generation. The same complaints about juror misconduct and various decisions by the judge are expected to form the basis of appeals for Fox and Croft, who are scheduled to be sentenced in December. Their first trial ended in the acquittals of two co-defendants and a mistrial in April.
Their lawyers faulted Jonker for imposing an "arbitrary" time limit on cross examination and calling defense questions "crap." The defense lawyers also revealed that one juror violated a judicial order by texting a relative during deliberations that a verdict had been reached and would be revealed momentarily.
Jonker did not treat defense lawyers differently than prosecutors, Kessler wrote.
"The court criticized both sides whenever it perceived the party was using the jury’s time inefficiently," Kessler wrote. "Finally, the court imposed a reasonable and isolated time limit on the defendants’ cross-examination of one witness only after the defendants had repeatedly disregarded its warnings that their cross-examination was causing undue delay, wasting time, and resulting in needless presentation of cumulative evidence.
The juror misconduct allegation emerged Aug. 11 during the trial's early stages. That's when Fox's lawyer Joshua Blanchard relayed a tip that a juror was biased and vowed to a co-worker that they wanted to "hang" the ringleaders. The tip came from one of the juror's co-workers.
The juror's name, jury number and gender have been redacted from all court filings.
Jonker let the juror stay on the case because the juror did not appear to be manipulative and denied having a predetermined desire to convict the men.
Defense lawyers faulted Jonker for questioning the juror privately in his court chambers.
"In support of their claim, the defendants proffer only unsworn, second-hand accounts of conversations with a (co-worker) who declined to be identified," the prosecutor wrote.
Fox and Croft do not deserve to have a hearing during which Jonker could compel testimony from the juror's co-workers, Kessler wrote.
———
