Judge in re-trial of Whitmer kidnapping plot suspects says jury can't hear of acquittals, FBI informant texts

A federal judge handling the re-trial of two men charged in connection to an alleged kidnapping plot of Democratic Michigan Gov. Gretchen Whitmer decided Tuesday that information about the first trial, the acquittals of two other men and text messages with an FBI informant cannot be included as part of the evidence presented before the jury during the second trial slated to begin next month. 

During the final pre-trial hearing in Grand Rapids on Tuesday ahead of the second trial for defendants Adam Fox and Barry Croft Jr., U.S. District Judge Robert Jonker decided some texts and communication made by a secret FBI informant dubbed "Big Dan" with his FBI handler would not be permitted. 

Jonker, appointed in 2007 by former President George W. Bush, also said the jurors will not be permitted to hear that the other two defendants, Daniel Harris and Brandon Caserta, were found not guilty of kidnapping conspiracy in the alleged plot to kidnap Whitmer over apparent anger stemming from her COVID-19-era lockdown orders.

The judge admitted that potential jurors might already know of the acquittals and could "blurt out" the outcome of the first trial during the jury selection process for the second, but that doesn’t mean information about the outcome of the first trial can be included as evidence, according to Michigan Radio. 

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Jonker acknowledged that the defense indicated they want to call Harris and Caserta as witnesses during the second trial for Fox and Croft Jr., and if that happens, the jury could learn of their acquittals anyway. 

Still, there’s another possibility Harris and Caserta could invoke their Fifth Amendment rights not to incriminate themselves and choose not to testify during the next trial. Jury selection is set for Aug. 9. 

In the same trial in April, the jury deadlocked and could not reach a verdict for Fox and Croft Jr., and a mistrial was declared, while Harris and Caserta were found not guilty on all federal charges. 

The defense accused the FBI of entrapment, arguing their clients were weekend warriors who smoked marijuana and were prone to big talk – not the domestic extremists prosecutors portrayed them to be. 

The first trial included a video of the men setting off explosives during apparent training exercises, and prosecutors said they planned to blow up a bridge near Whitmer’s vacation home to delay law enforcement response and then move in to kidnap the governor. The mission was never set into motion. 

U.S. Assistant Attorney Nils Kessler said prosecutors will submit 302 pieces of evidence in the new trial – about half of the evidence presented during the first, WWMT reported. New evidence will include 17 social media messages exchanged between Fox and Croft Jr., and prosecutors plan to call 21 witnesses.

Fox's attorney, Christopher Gibbons, said among witnesses the defense will call, a cell phone expert will testify to demonstrate a "lack of communication between Fox and the Wolverine Watchmen group."

A total of 11 men were charged in connection to the alleged kidnapping plot against Whitmer in October 2020. 

Six of them were charged in federal court, and Ty Garbin and Kaleb Franks both later pleaded guilty and testified for the government during the April trial for Fox, Croft Jr., Harris and Caserta.

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The eight remaining men were charged in state court. Three of them are to face trial in September in Jackson County, while a trial start date has not been set for the five others. 

Whitmer is up for re-election in November. The GOP primary during which her potential challengers will face off for a slot on the ballot is scheduled for Aug. 7.