With no convictions in trial over alleged Whitmer kidnapping plot, what's next?
After five days of deliberations in Grand Rapids, jurors acquitted two defendants but failed to agree on a verdict for two others in the federal trial over an alleged plot to kidnap Governor Gretchen Whitmer.
For analysis of the case and a look at what's next, Michigan Radio turned to former United States attorney for the Eastern District of Michigan Matthew Schneider. Schneider is a partner at the law firm Honigman. He spoke with Morning Edition host Doug Tribou.
Doug Tribou: The prosecutors filed two conspiracy charges and two weapons possession charges in the case. Not all of the men faced all of the charges. The jury found Daniel Harris and Brandon Caserta not guilty on all charges, but jurors issued no verdict for both Adam Fox and Barry Croft, which led to a mistrial for them. What stands out to you about those outcomes?
Matthew Schneider: Well, we have to look at the outcome for what it was, and that is, the government failed to prove their case. The government brought forth charges and presented it to a jury, and the jury decided either that they, the defendants, were not guilty or there was not enough evidence to decide.
But the outcome certainly is not that it's okay to do violence against a public official or Gov. Whitmer. That's not the message that the jury sent, as far as we can tell, and that is still illegal, and the government will still continue to prosecute cases like that.
DT: This was a trial that featured a lot of hot-button, timely issues; the politics of COVID, a threat against a sitting elected official. Were you surprised by these outcomes?
MS: Well, not only was I surprised, but prosecutors and defense attorneys were surprised. A lot of folks on both sides of that courtroom aisle thought that the government put forth a pretty good case and that there would be convictions. Now, of course, the defense also put forth a very good case. It was very compelling about the fact that they thought that the government had made all this up, and they put some good evidence forth. And the jury sided with the defense. But this case is not over.
"As a juror, you don't ask questions if you know everything about the evidence. You ask questions because you weren't persuaded and you need more information."
DT: Defense Attorney Michael Hill said the verdict shows the government overreached and lured the men into a conspiracy. He said, “I think what the FBI did was unconscionable.” And he also said that the jury's verdict was a condemnation of the FBI's tactics in this undercover operation. What's your reaction to that comment?
MS: Well, I don't think we know the answer to that yet, because none of the jurors have come forth and explained why they reached their verdict. Certainly, that was the defense theory. But if that theory were accurate, then they would have acquitted everyone, especially the more culpable people Fox and Croft.
And in addition, two defendants pleaded guilty. And when they did that, they went into federal court and they said, I'm pleading guilty because I am guilty of this crime. And so I don't think we know enough to say that one way or the other.
There's going to be a retrial and we'll find out then.
DT: U.S. Attorney for the Western District of Michigan Andrew Birge called the verdict disappointing and says he plans on a retrial for Fox and Croft, who were described as the ringleaders by prosecutors. How much might Berge have to change his approach to get a conviction in another trial?
MS: Well, he'll have to change it a little bit because the jurors had questions, for example, about the bombs and the weapons involved. And as a juror, you don't ask questions if you know everything about the evidence. You ask questions because you weren't persuaded and you need more information. So that will have to change, for sure.
But some things can't change, right? A big question now for the government in cases like this is when is it appropriate to take down the investigation? When do you stop? And so the government, I'm sure, is asking itself: what would have happened if we allowed this case to go forward another week? Of course, there are always law enforcement safety considerations for when you take down a case like this, but I'm certain that people are asking themselves that. What if they had had more evidence to give to the jury?
DT: There are two more state trials to come, with eight men facing charges in those. Could the outcome in this case lead to any changes in those state cases? Maybe shifts in strategy?
MS: Could be shifts in strategy. As I indicated, the jurors had some outstanding questions, so I'm sure the state prosecutors are looking at that as well. And they might want to focus a little bit on their jury selection. I mean, in this federal case, some of the jurors were barely questioned at all. There was a person who went in kind of at the end of jury selection. He was only asked a few questions and made me ask when I was listening to jury selection, who the heck is this guy?
I think both prosecutors and defense attorneys on the next go around will really want to have thorough questioning of the jurors to make sure they have a really firm understanding of who's going to be deciding this case.
Editor's note: Quotes in this article have been edited for length and clarity. You can listen to full interview near the top of this page.