The federal government suffered a rare loss when a jury failed to convict four men accused of conspiring to kidnap Michigan Gov. Gretchen Whitmer last week. Federal prosecutors obtain convictions in 95% or more of their cases, based on U.S. Sentencing Commission data.
Up next are eight other defendants facing charges stemming from their alleged connection to the plot in Michigan state courts.
Joseph Morrison, Paul Bellar and Pete Musico face an Oct. 10 trial in Jackson County. Shawn Fix, Eric Molitor, Brian Higgins, Michael Null and William Null are awaiting a preliminary exam in Antrim County set for Aug. 29.
Michigan Attorney General Dana Nessel’s office must overcome some of the same challenges federal prosecutors faced, and it won’t be an easy, according to legal experts who spoke to MLive. Those interviewed for this story are not involved in the federal or state cases regarding the alleged kidnap plot.
Distrust in government and politics of the day likely played a role in the federal trial and will again when the case is presented in state court, they said.
“I anticipated that there might be some acquittals here,” said Tonya Krause-Phelan, a Western Michigan University Cooley Law School professor, former assistant prosecutor and criminal defense attorney. “I’m also not surprised by the hung juries, only because of the political climate that we’re in and that the jurors may have been considering.”
Michigan criminal defense Attorney Jamie White, who represented victims of ex-Michigan State University sports medicine Dr. Larry Nassar, said he was “flabbergasted” by the result of the federal case.
“But we have a political split in this country and the potential juror pool was divided between people who believe Jan. 6 happened, and people who don’t,” White said. “That was a concern from day one.”
The venues for the state court trials are in counties that voted Republican in 2020, places where criticism of Whitmer’s early lockdown efforts to slow spread of the coronavirus were criticized most harshly.
The U.S. District Court jury cleared Daniel Harris, 24, of four charges, including conspiracy to kidnap and conspiracy to use a weapon of mass destruction, both potential life offenses. Brandon Caserta, 34, was found not guilty of conspiracy to kidnap.
The jury could not reach unanimous decisions on Barry Croft, 46, and Adam Fox, 38, resulting in mistrials for those two. Jury members have not publicly discussed what led to their decisions.
“Clearly the jurors thought this was some combination of entrapment and what I call the idiot defense,” said former federal prosecutor Neama Rahmani, who has prosecuted federal conspiracy cases related to terrorism, drugs and human trafficking. The jury believed “these guys weren’t capable of doing this. They’re detonating explosives in their oven. It wasn’t this militia group that the feds made them out to be.”
Furthermore, Rahmani said the jury must have believed portions of the entrapment defense that centered on claims that undercover FBI agents and informants compelled the defendants to attend training sessions, anti-government protests and join a fictitious militia, attorneys said.
“I don’t recall an entrapment defense ever working in a terrorism case — ever, ever, ever,” he said. “They’re tough cases to win as a defense attorney because you have to show there was no propensity to commit the crime.
“Terrorism cases, they’re true believers. They’re fringe groups, could be domestic terrorists, terrorists abroad. Whatever the case may be, it’s tough to show they didn’t have that propensity.”
Entrapment occurs when the government entices someone to commit a crime that they weren’t already predisposed to commit.
“This is the first time in a long time that I’ve seen a viable entrapment defense allowed to go to the jury,” Phelan said. “Entrapment defenses don’t make it to the jury very often and I would speculate it played a role in the hung juries.”
According to Rahmani, the federal government won’t generally charge a case until it’s convinced it can win.
“The reason they rarely lose is because they have the luxury of waiting until they have a bulletproof case, or what I call a made hand” he said. “State prosecutors are stuck with reactive cases … So here, prosecutors thought they had a very strong hand and it turns out that wasn’t the case at all.”
Rahmani speculates the reason some of the defendants are being charged in state court is because the evidence wasn’t strong enough to meet the U.S. Attorney’s Office threshold for federal prosecution.
“I prosecuted a lot of drug and human trafficking cases,” he said. “The cases that went to the state were cases that were rejected by the federal government.
“So you already have what the feds consider to the a stronger case that was a loser. My guess is the remaining charges, the remaining defendants, those are individuals they chose not to prosecute for whatever reason: the evidence wasn’t strong enough or they thought they weren’t as culpable.”
One advantage Nessel’s assistant prosecutors have is time. They’ve watched the federal case unfold, can analyze where it failed and tweak their strategy, Phelan said.
“I’m sure the state prosecutors wanted to see how the (federal) cases went, how the agents did and to the extent the political climate had anything to do with it,” she said. “Jackson County, for example, they’re a pretty conservative county and I think the sentiments toward the governor are not very popular in Jackson County.”
Nessel declined to comment on the implications of the federal case.
“Given the state case remains open and ongoing, it would be inappropriate to comment on the verdict in the federal case,” her office said.
The U.S. Attorney’s Office indicates it plans to retry Croft and Fox, who remain jailed pending resolutions of their cases.
“Although we are disappointed the jury did not reach decisions in our favor, we continue to respect the jury trial system whatever the outcome, and we thank the jury for their service,” said U.S. Attorney Andrew Birge. “Two defendants now await re-trial and, for that reason, we have no further statement at this time.”
More on MLive:
5 takeaways from kidnap plot trial
Gov. Whitmer kidnap case crashes: ‘Conspiracy that just never was,’ attorney says
Defense attorney says Gov. Whitmer was ‘never in any real danger’
Michigan Gov. Whitmer’s office warns lack of accountability in kidnapping plot will embolden extremists
Defendant’s dad: FBI, informants pushed Gov. Whitmer kidnap plot to ‘next level, not our guy’
