GRAND RAPIDS, Mich. — A federal judge on Thursday ordered two men accused of plotting to kidnap Gov. Gretchen Whitmer to stand for a retrial, nearly three months after jurors failed to reach a unanimous verdict on their guilt.
Prosecutors pushed to hold new trials for Grand Rapids resident Adam Fox, 39, and Delaware trucker Barry Croft, 46, after two of their alleged co-conspirators in the plot were found not guilty.
But defense attorneys for Fox and Croft argued there is insufficient evidence to convict the defendants of kidnapping conspiracy or agreeing to use a weapon of mass destruction.
Chief U.S. District Judge Robert Jonker disagreed during a hearing Thursday afternoon in Grand Rapids.
"A rational jury, in my view, could still rule against Mr. Fox, rule against Mr. Croft," Jonker ruled from the bench. "We will need to have another jury weigh the evidence."
The judge said he wanted to start a new trial "as soon as we can."
Fox and Croft's requests to be set free, made two months ago in late April, came after jurors deadlocked following a 20-day trial in the largest domestic terrorism case in recent U.S. history. Two others — Lake Orion resident Daniel Harris, 24, and Brandon Caserta, 34, of Canton Township — were acquitted.
Defense lawyers spent months raising questions about FBI agent conduct and contending that a team of investigators and informants orchestrated the conspiracy and entrapped the four men, a ragtag band of social outcasts who harbored anti-government views and anger over COVID-19-related restrictions imposed by Whitmer early in the pandemic.
"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," Fox's lawyer Christopher Gibbons wrote in a late April filing. "A government agent or informant cannot be a conspirator."
The acquittals of Harris and Caserta as well as the deadlocked jury were a blow to a case that had been dogged by controversy and scandal. The defense had raised questions about the FBI's conduct and use of informants, including the indictment of rogue FBI informant Stephen Robeson on a gun crime.
The defense alleged that FBI agents and informants had orchestrated the conspiracy and entrapped the men.
During the trial, Harris was acquitted of possessing an unregistered destructive device but deadlocked on the same charge against Croft.
Croft is entitled to an acquittal because the jury determined "either the device was not a 'destructive device' or that Mr. Harris did not know that the device was a 'destructive device," Croft's lawyer Joshua Blanchard wrote. "It is not possible to logically determine which conclusion the jury reached, but either entitles Mr. Croft to an acquittal."
(Staff writer Robert Snell contributed.)
