Explainer: 2 men may be prosecuted again in the Government Whitmer plot

DETROIT (AP) — A jury’s inability to reach a unanimous verdict for two men charged in conspiracy to kidnap Michigan government means the federal government could take them to trial again.

The jury last week acquitted Daniel Harris and Brandon Caserta, whom prosecutors described as “soldiers” in the failed conspiracy, but stymied the alleged leaders, Adam Fox and Barry Croft Jr. It was an extraordinary blow to the government, which claimed the men wanted to wage a civil war ahead of the 2020 election.

hung jury

A hung jury is unable to agree unanimously on someone’s guilt or innocence. The 12-member panel can have only one person who disagrees with the others.

Prosecutors can prosecute someone again or drop the case. US Attorney Andrew Birge told reporters Friday that Fox and Croft “are awaiting trial and we will work on that.” They live in jail.

Mark Chutko, who most recently headed the criminal division of the US attorney’s office in Detroit, said he would be surprised if prosecutors cite the significance of the charges.

“There are two government associate defendants who pleaded guilty, who said they were part of the crime. This is very compelling evidence,” Chutko said, referring to Ty Garbin and Caleb Franks, who testified for prosecutors.

So what?

Only the jury knows. U.S. District Judge Robert Jonker barred lawyers from contacting jurors for any post-trial intelligence, but jurors can access them on their own.

Chutkov said it could help prosecutors and defense lawyers as they prepare for a second trial.

“As a litigant, sometimes you get in the fog of war,” he said. “You’ve spent so much time with your case, you’re not objective about what it looks like.”

Fox, who was living in the Grand Rapids area, and Croft from Bear, Delaware, did not testify. His defense came through cross-examination of government witnesses.

Fox and Croft may have been angry with Whitmer over the COVID-19 restrictions, but there were no real plans to kidnap the Democratic governor, their lawyers insisted. They say that FBI agents and informants talked wildly inside the group in secret.

Detroit-area defense attorney Michael Ratz said the challenge for prosecutors in Grand Rapids would be to choose a jury from western and northern Michigan.

“This is Trump country and they don’t like Whitmer. Prosecutors have an uphill battle,” Rataj said.

What happened after the other big cases with a hung jury?

In the 2010 corruption trial of former Illinois Gov. Rod Blagojevich, prosecutors sharpened their attention after a federal jury did not agree on 23 of 24 charges. The jurors said only one person was the holdout.

In Blagojevich’s second trial, prosecutors abandoned his expensive taste for suits and furs tailored for his wife. He was convicted of several crimes, including attempting to sell the appointment to the US Senate.

But prosecutors decided against trying again for New Jersey Sen. Bob Menendez. Several jurors in his 2017 trial supported acquittal. A judge later dismissed the major charges of bribery.

“Occasionally, there are bluster and chest thumping by prosecutors about re-trial after a stalemate jury,” said Alan Turkheimer, a Chicago jury adviser. “But when the dust settles and they think more clearly, they can change their mind.”

Learning how jurors voted can be important. A jury that was one or two votes away from an acquittal is a sign of a weak case, Tuerkheimer said, and could prevent prosecutors from trying again.

Who’s in the wings?

Eight other men face state charges in Jackson or Antrim counties. He is accused of aiding others in the Whitmer conspiracy, among other crimes, and has pleaded not guilty.

Whitmer’s vacation home is in Antrim. Fox and Croft, accompanied by undercover operatives, took a night ride to investigate the location and spot a bridge that could have been blown up during the kidnapping, according to evidence in the federal case.

The state’s cases have progressed slowly since the fall of 2020; The five men charged in Antrim have yet to have a crucial trial at which a judge decides whether there is enough evidence to go to trial.

Defense attorney Karim Johnson, who is representing Pete Musico, a founding member of the Wolverine Watchmen militia, compared the two acquittals in federal court to a thrilling basketball game.

“It’s like when a teammate hits a 3-pointer. It prompts you to come back on defense and stop,” Johnson said on Monday.

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Watch the AP’s full coverage of the Whitmer kidnapping conspiracy trial here: https://apnews.com/hub/whitmer-kidnap-plot-trial

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Tarm reported from Chicago.

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