GRAND RAPIDS, Mich. (CN) — The case against five men who are accused of hatching a scheme to kidnap Democratic Michigan Governor Gretchen Whitmer resumed in federal court Tuesday in a lengthy hearing to determine what evidence will be shown to jurors for a trial slated to begin on March 8.
Recent filings by defense lawyers attempt to portray the accused men as entrapped by secret government agents who egged them on. In a Jan. 10 brief, the defendants demanded access to complete government recordings – some that were made using key fobs – so they can use the statements of those agents to prove they were not the driving force behind the plan.
Chief U.S. District Judge Robert Jonker, a George W. Bush appointee, said it was a “stretch” for the defense to ask for a dismissal of the charges, but wanted to know why the idea of predisposition to such plotting should be introduced in opening statements.
Assistant U.S. Attorney Nils R. Kessler conceded it was an affirmative defense but said the accused have the burden of initial production of evidence to demonstrate there was entrapment.
“I think they should do that first,” he said. “And I agree with the defense to some extent that if this was not an entrapment case, some of the evidence that we are proposing to get in would be admissible character evidence.”
He continued: “But once they raised the entrapment defense, character becomes the critical issue…it’s the number one issue we have to prove and that would allow us to put the predisposition evidence in the beginning and I don’t think that’s helpful to them.”
Attorney Christopher Gibbons of Gibbons & Boer, who represents defendant Adam Fox, argued there was never full agreement between the men.
“Alternatively, if the jury should decide that amongst everything that’s presented that there appears to be an agreement may have been made, our backstop against that is entrapment," Gibbons said. “If you have to bake a cake you have to use flour, so predisposition I think necessarily comes in whether we like it or not because I think that’s just the nature of our defense.”
Jonker questioned the relevance of several text messages that appear to suggest reluctance among the group to follow through on the plan.
“When you are talking about relevance…I’m not sure they are relevant…unless you have so much more context that you basically are putting in all kinds of hearsay to explain a statement that would normally be a hearsay exculpatory statement,” the judge said.
Kessler was skeptical of the defense team's motivations during rebuttal.
“When someone tries to get their own self-exculpatory statements in…it’s not allowed because it’s an end-run around the test of cross-examination,” he said.
Defense lawyers also sought to convince the judge that it is relevant to focus on two undercover FBI agents said to be a significant part of the planning process, portraying them as going rogue since one was accused of domestic violence, including posting derogatory statements about former President Donald Trump.
Jonker acknowledged there are other motions pending and said he would address them soon. In the meantime, he said he would take the arguments into consideration and have a decision as soon as he could but warned it could take until the eve of the trial.
The defendants set to face trial in March are Fox, 40, of Wyoming; Barry Croft Jr., 45, of Bear, Delaware; Daniel Joseph Harris, 23, of Lake Orion, Michigan, Brandon Caserta, 32, of Canton Township, Michigan; and Kaleb Franks, 26, of Waterford, Michigan.
Fox is accused of spearheading the the kidnapping plot. Prosecutors claim he sought to assemble more than 200 men to storm the Michigan State Capitol in Lansing to take hostages, including Whitmer.
When Whitmer locked down the state in April 2020 to slow the spread of Covid-19, right-wing activists, including some carrying assault rifles, descended on the Michigan Capitol soon after to protest her stay-at-home order in a scene that presaged the attempted U.S. Capitol siege on Jan. 6, 2021.
The defendants were said to have been furious with the governor over the coronavirus restrictions and vowed to try her for treason. Fox allegedly determined the best way to kidnap Whitmer would be at her private vacation residence or the governor’s official summer home. In the original indictment from December 2020, prosecutors said Caserta sent a message to the other men saying they should give law enforcement one chance to retreat from any confrontation and then kill the officers if they refused.
In January 2021, Ty Garbin, 25, of Hartland Township, became the first from the group to plead guilty. He was sentenced in August 2021 to 6 ¼ years in prison but was commended by government lawyers for his help strengthening their case against the other men.
At his sentencing hearing, Garbin apologized to Whitmer, who was not in court.
“I cannot even begin to imagine the amount of stress and fear her family felt because of my actions. And for that I am truly sorry,” he told Junker last August.
Fox, Croft, Franks, Harris and Caserta each face up to life in prison if convicted of kidnapping conspiracy charges. Fox, Croft and Harris could also get a separate life sentence if convicted of conspiracy to use a weapon of mass destruction. Croft and Harris each face up to 10 years in prison if they're found guilty of possession of an unregistered destructive device. Harris could be sentenced to a decade behind bars if convicted of possession of an unregistered short barrel rifle.
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