Whitmer Kidnap ‘Plotters’ Acquitted
A Michigan jury believed the FBI created the crime.
Detroit Free Press (“2 Whitmer kidnap plot suspects found not guilty; mistrial declared for other 2“):
The historic Gretchen Whitmer kidnap plot case ended with no convictions Friday, delivering a blow to the government as it failed to convince a jury that four militia members were domestic terrorists determined to harm the governor because of her COVID-19 restrictions.
The jury declared two of those men not guilty, but deadlocked on the charges against the other two, who will be retried.
Defendant Daniel Harris — the only one who testified at the trial — was acquitted on all four counts, with the judge telling the 24-year-old Lake Orion man he would be free to go Friday afternoon.
Brandon Caserta, 33, of Canton, was acquitted on the only count he faced: kidnapping conspiracy. He, like Harris, was freed Friday — which is also his birthday — after more than 18 months in jail following his arrest in an FBI sting outside an Ypsilanti warehouse.
“What the FBI did was unconscionable,” Caserta’s lawyer, Michael Hills, said outside the courthouse. He has long argued that his client and the others were entrapped by rogue FBI informants and agents, including one who ran a cybersecurity company while investigating the case.
“To me, this was a signal,” Hills said of the verdict. “A rogue FBI agent trying to line his own pockets with his own cybersecurity company, pushing a conspiracy that just never was, never was going to be. Our governor was never in any danger. And I think the jury — they didn’t get all of it — but they smelled enough of it.”
Family members gasped and broke into tears as Chief U.S. District Judge Robert Jonker read the not guilty verdicts. Caserta’s sister declined to answer questions as she left the courthouse, but smiled and told reporters that Friday was Caserta’s 34th birthday.
Caserta and Harris thanked their lawyers after the verdict was read, then embraced one another.
The jury deadlocked on all counts against Adam Fox, 39, of Potterville, and Barry Croft, 46, of Delaware — whom the prosecution described as the ringleaders — so a mistrial was declared.
BuzzFeed News (“A Stunning Surprise In The Michigan Kidnapping Case Calls The Government’s Domestic Terror Strategy Into Question“):
Despite the government’s extraordinary efforts to muzzle the defense, a jury in Grand Rapids federal court on Friday acquitted two men on charges including conspiring to kidnap Michigan Gov. Gretchen Whitmer. The jury was unable to reach a verdict on the other two who had been charged.
As a result, Daniel Harris and Brandon Caserta are now free men, while the federal judge overseeing the case called a mistrial on the counts against Adam Fox and Barry Croft. In a written statement after the verdict, Andrew Birge, the US Attorney for the Western District of Michigan, said that Fox and Croft “now await re-trial” although he did not say when that would be.
The outcome of the trial is a stunning rebuke to the prosecution, which at times appeared to view the case — one of the most prominent domestic terror investigations in a generation — as a slam dunk. The split verdict calls into question the Justice Department’s strategy, and beyond that, its entire approach to combating domestic extremism. Defense attorneys in the case, along with observers from across the political spectrum, have argued the FBI’s efforts to make the case, which involved at least a dozen confidential informants, went beyond legitimate law enforcement and into outright entrapment.
It may also leave the two defendants who chose to plead guilty and testify for the government in hopes of leniency, Ty Garbin and Kaleb Franks, wondering whether they made the right choice. Last summer, Garbin was sentenced to 75 months in prison, while Franks, who changed his plea in February, is still awaiting sentencing.
Also up in the air is the fate of eight men charged by Michigan’s Attorney General for providing material support to terrorism for their role in the alleged plot. Three of them face trial in September, but it may be challenging to convince a jury that they aided a plot the very existence of which has not been proven.
I have written next to nothing about the case since my initial October 2020 post “Michigan Coup Averted.” It carried the prescient subhed “A right-wing militia’s hair-brained scheme to kidnap Gretchen Whitmer has been foiled.” My analysis:
It’s never quite obvious to me with these foiled plots how close we came to fruition. That is, it’s not clear how serious these people were, much less whether they had the manpower, expertise, and capability to get past statehouse security, kidnap the governor, and seize control of the government.
Or, indeed, what that would even look like. Armed yahoos holding the governor hostage would be a big deal, of course. But who would take their orders? And, of course, one imagines that even President Trump would order the state’s National Guard federalized and have the junta dispatched.
For once, the commentariat largely agreed.
@gVOR08 observed, “As with many supposed terrorist plots, I wonder how much of this was real and how much essentially entrapment by the informer. I raise the possibility because I have trouble picturing these militia types as having either the organizational ability or the stones to actually do something like this.”
@Hal_10000 concurred, “Gonna hold off comment until I see if this was an actual plot or the Federal Playbook on Muslims: finding some idiot, creating the plot for him, giving all the materials and then arresting him.”
I haven’t followed the case particularly closely but the little I’ve caught has reinforced that initial sense that these were a bunch of yahoos who would not have committed this particular crime absent the active encouragement of the FBI.
That said, I nonetheless agree with lots of other commenters on that post that the defendants—like the overwhelming number of members of these so-called “militia” groups that first came to my awareness with Timothy McVeigh—are a net negative to society. The nature of our criminal justice system is that we can’t lock them up until they actually commit crimes and, alas, also that we do a much better job of punishing criminals after the fact than preventing them from committing crimes to begin with.
Still, it’s one thing to infiltrate these groups and catch them in the act of plotting and another, indeed, to entrap them into committing crimes they were unlikely to even think of on their own. One hopes that the FBI agents who perpetrated this scheme are stripped of their badges.
Beyond that, the BuzzFeed description of the nature of the trail is downright scary:
“The jury clearly saw what the FBI was doing to create this case,” said Caserta’s attorney, Mike Hills, in an interview after the verdict was announced. “They saw it, and they didn’t like it.”
To make their case, federal prosecutors presented a mountain of evidence: hundreds of audio clips, videos, and text messages, many of which show the men describing violence they would personally like to inflict on the governor, plus the testimony of a confidential informant, two undercover FBI agents, and two defendants who had pleaded guilty and agreed to cooperate with the investigation.
But the most striking thing about the closely watched 15-day trial might be what the jury never got to see.
Both before and during the trial, prosecutors went to extraordinary lengths to exclude evidence and witnesses that might undermine their arguments, while winning the right to bring in almost anything favorable to their own side. As a result, defense attorneys were largely reduced to nibbling at the edges of the government’s case in hopes of instilling doubt in the jurors’ minds, and to making claims about official misconduct with vanishingly few pieces of evidence to support them.
Over and over during the course of the trial, the prosecution objected to any attempts by defendants to provide context for the often shocking soundbites and text messages shown in court — objections sustained by a judge who agreed that such material risked confusing the jury.
The result was, at least from the defense’s point of view, a stunningly one-sided presentation that left the preponderance of evidence out of court and gave jurors precious little to balance against the Justice Department’s claims.
It’s my longstanding view that judges should bend over backwards in allowing the defense to bring in exculpatory evidence while being very suspicious of the government, which has the upper hand in both resources and control of the evidence-finding machinery. The judge apparently did the opposite here.