The possibility of a rogue juror has been discovered in the Gov. Gretchen Whitmer kidnap retrial, but the judge is handling the issue privately in his chambers and the defense is crying foul, according to a now-sealed court filing by the defense.
The filing, obtained by the Free Press, states that a juror in the case told co-workers that the person was hoping to be selected for the jury in the Whitmer kidnapping case, and "had already decided the case and intended to ensure a particular result at the conclusion of the trial."
The judge, who learned of this information on Thursday morning - the second day of trial - held a brief conversation about the matter with the prosecution and defense in his chambers before the trial started, the filing states.
But the juror remains on the panel, with the trial entering day three on Friday.
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Judge to meet with juror privately
According to the defense filing, U.S. District Judge Robert Jonker, who is overseeing the trial, opted to have the jury clerk investigate the issue and take up the matter at the end of the day.
When the trial finished for the day Thursday, the judge held another private conference with both sides in his chambers, where he "explained his findings from the jury clerk's investigation." The filing did not disclose those "findings."
The judge also "expressed an intention to handle the matter" by meeting with the juror privately, though it's not clear whether that has happened yet. The defense requested to participate in the hearing, but the judge denied their request - triggering this filing by a lawyer representing Barry Croft Jr., the Delaware truck driver who is facing a retrial after his last case ended in a mistrial in April.
Croft and Adam Fox are being retried in Grand Rapids after the jury in the first trial could not reach a verdict. It acquitted two other defendants. They were among six originally charged in federal court; the other two agreed to guilty pleas.
"Mr. Croft is entitled to an evidentiary hearing regarding the alleged misconduct," defense lawyer Joshua Blanchard argues in court records. "The Sixth Amendment guarantees a criminal defendant a trial by an impartial jury."
That means, the filing continues, that a jury must base its verdict upon the evidence
made at trial, nothing else.
Potential 'grounds for a new trial'
"The presence of even a single biased juror deprives a defendant of his right to an impartial jury," Blanchard argues, stressing that if a court receives evidence "of things like juror bias, it must hold a 'hearing with all interested parties permitted to participate.'"
The filing continued: "A prospective juror's failure to disclose material information is grounds for a new trial if it demonstrates bias."
Blanchard is pushing for a prompt investigation to determine whether the "taint-producing event actually occurred," and to assess "the magnitude of the event and any resulting prejudice."
In a Friday court order, Jonker said he will continue to handle the juror issue privately.
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"For now, the court expects to continue addressing the situation in nonpublic hearings and filings while the case is pending to limit the risk of mistrial," Jonker wrote. "The court had assumed counsel understood that, and would make its own filings in similar fashion. But now the court makes the point explicitly and orders that all filings and proceedings regarding any jury issues occur in nonpublic hearings with restricted access filings until the jury is discharged, or until otherwise ordered by the court."
Meanwhile, here is what the jury - and the controversial juror - heard at trial Friday morning as testimony continued.
'Sleeping in the same room'
The third day of witness testimony opened with defense lawyers scrutinizing the relationships FBI informants had with the defendants.
Croft's lawyer focused on how the informants accompanied Croft on his several trips to the Midwest for militia trainings and meetings during the summer of 2020, and questioned whether one informant crossed a line by sharing a hotel room with Croft.
In his cross-examination of FBI Special Agent Christopher Long, Blanchard argued that FBI informants Jenny Plunk and Steve Robeson had an unusual relationship with Croft, smoking weed with him, trying to keep him included at meetings and, in Plunk's case, sharing a hotel room with him.
According to trial testimony, Plunk shared a hotel room with Croft during July 2020 field training exercise in Cambria, Wisconsin. Agent Long said the two shared the room as a cost-cutting measure, noting neither of them had a lot of money at the time.
However, Blanchard argued it was an improper involvement for an FBI informant and an individual the FBI was actively monitoring.
"Does the FBI have a policy about opposite-gender sources sleeping in the same room?" Blanchard asked. He then asked Long whether he had ever monitored a case where sources of the opposite gender stayed in the same room.
Long said he hadn't.
FBI feared 'lone wolf' acts
The defense has long argued that rogue FBI informants and sources induced the defendants into a conspiracy to kidnap Whitmer, maintaining the FBI hatched the scheme and ran the show. While the men were fed up with Whitmer's handling of the COVID-19 pandemic, the defense argues, they were only tough talkers, and the only danger to the governor was caused by rogue informants.
Blanchard continued pressing Long in his cross, recalling messages Long sent to Plunk. At one meeting, when others present were wary of Croft's involvement, Long directed Plunk to keep Croft close to the group.
"We were trying to maintain access to this group by having a source inform on them, yes," Long testified. "We wanted the group to remember Mr. Croft had brought them together and we didn't want them to kick him out."
Long added that FBI agents were worried about the group splintering off separately, noting many of the individuals present were considered to have violent, anti-government sentiments. Long said the FBI wanted to keep them together out of fear of one of the individuals committing "lone wolf" acts of violence.
Testimony continues. The government has called FBI Special Agent Mark Schweers, an undercover agent known to Fox and Croft as "Mark Woods" during operations, as its next witness.
So far, three FBI agents have testified about how the government built its case against six men charged with plotting to kidnap Whitmer, largely out of anger over her handling of the pandemic.
Croft and Fox are charged with kidnapping conspiracy and weapons of mass destruction charges and face up to life in prison if convicted.
Contact Tresa Baldas:firstname.lastname@example.org
This article originally appeared on Detroit Free Press: Juror misconduct investigation ordered in Whitmer kidnap retrial