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Men Convicted in Whitmer Kidnapping Plot Seek New Trial Over Juror Reportedly Wanting to ‘Hang’ Defendants

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Men Convicted in Whitmer Kidnapping Plot Seek New Trial Over Juror Reportedly Wanting to ‘Hang’ Defendants
This combination of images provided by the Kent County, Mich., Jail. shows Barry Croft Jr., left, and Adam Fox. (Kent County Sheriff's Office via AP)
Zachary Stieber
9/8/2022
Updated:
9/9/2022
0:00
The two men convicted of conspiring to kidnap Michigan’s governor moved on Sept. 8 for a new trial over alleged juror misconduct and judicial interference.
One of the jurors, whose name hasn’t been made public, said before the trial started that he hoped to serve on the jury and that he would make sure the defendants would “hang” if he was able to, two people who work with the juror told defense investigators, lawyers for Adam Fox and Barry Croft Jr. said in the new motion.

The people both said they were relayed the comments by a colleague who works at the company.

The first person to speak to investigators later said that no one else was willing to speak because of concerns about losing their jobs due to the juror’s family member also working at the same company.

“He said that people are also being protected against actions by BLM [Black Lives Matter] or similar organizations if their names get out. Person #1 further added that if he is compelled to talk about the juror’s statements, he will now say that he does not know anything,” the motion states.

Investigators were able to connect with a second employee who also recounted a colleague relaying that the juror “was talking about finding them guilty no matter what.” That person gave the first name of the the colleague, and investigators tracked the person down.

“I identified myself and told Person #3 that I wanted to speak with them regarding possible statements that [the juror] had made regarding the Whitmer trial. Person #3 stated that they did not know anything and refused to speak with me and got into their vehicle,” Gary Gaudard, one of the investigators, said in an affidavit.
“Person #3’s statement was inconsistent with the reports obtained from Person #1 and Person #2 and the investigator understood the statements as an expression that Person #3 did not wish to be involved. I offered to speak with them outside of work but they did not want to speak with me. I offered my card in case they changed their mind. They said that they did not want to talk with me later and declined to take my card and drove out of the lot.”

Juror Questioned

Defense lawyers raised the matter during the trial but had only spoken to the first person at the time.

After lawyers raised it, U.S. District Judge Robert Jonker, who was overseeing the case, decided to conduct closed-door questioning of the juror. Neither prosecutors nor defense attorneys were allowed in the room.

Jonker told the juror that the court recently received information about the juror having prejudged the case.

“It’s not like I have that on tape. It’s not like I have anybody saying that under oath, but we have information that came to the court that suggests you made statements like that as recently as Monday, which was before you became a juror, in connection with your place of work,” the judge said.

The juror said he didn’t make such statements and hadn’t spoken to colleagues about jury service beyond stating that he had jury duty.

In the new motion, attorneys for the defendants said the judge erred twice—first, in not letting them be present for the questioning, and second, in revealing that there was no concrete evidence backing the accusation.

“The Court correctly noted that it was the Defendant’s burden to show juror bias, but then denied the Defendants an opportunity to participate in the very hearing it held to determine whether such bias existed,” they said.

Jonker chose to keep the juror on the jury after the questioning.

Judicial Interference

The lawyers also said a new trial is warranted because of frequent interruptions by Jonker, a George W. Bush appointee.

Jonker suddenly imposed time limits on the defense for questioning of Kaleb Franks, who has pleaded guilty, after prosecutors had finished their questioning of Franks.

That violated the defendants’ Sixth Amendment rights, according to the motion.

The limits were withdrawn several days later, after a slew of media reports about the unusual development.

Jonker also “repeatedly interjected with commentary regarding the quality of the defense evidence and questioning, the time it was taking defense counsel to complete questioning of witnesses, made sarcastic remarks about the trial continuing until Thanksgiving, referred to defense counsel’s questioning as ‘crap,’ and made other remarks that the Court itself has described as ‘dyspeptic,’” the motion reads.

Croft and Fox were convicted in a second trial after the first trial saw two co-defendants acquitted. A mistrial was declared for Croft and Fox in the initial trial because the jury couldn’t reach verdicts.