Aug. 16 (UPI) — Two men convicted in the 2020 plot to kidnap Michigan Gov. Gretchen Whitmer are demanding a new trial, arguing a juror accused of misconduct ended up serving as the foreman.
According to an appeal brief filed in the 6th U.S. Circuit Court of Appeals on Wednesday, Adam Fox and Barry Croft are accusing U.S. District Judge Robert Jonker of failing to fulfill his duty by holding a Remmer hearing to determine whether the juror was biased.
“The district court abused its discretion by failing to afford Fox a ‘constitutionally meaningful’ Remmer hearing and curtailing his cross examination of one of the government’s star witnesses,” Fox’s lawyer Steven Nolder wrote in the appeal, adding that “the juror suspected of being biased became the foreman of Fox’s jury.”
Fox is currently serving a 16-year sentence at a high-security federal prison in Colorado. Croft, who was a Delaware truck driver and was described as the main force behind the kidnapping plot, was sentenced to just over 19 years in prison.
In Croft’s appeal brief, his defense attorney wrote that the judge failed to seriously consider “credible allegations” of juror misconduct.
“The court thereby failed to afford Croft any meaningful opportunity to demonstrate jury bias, mandating a new trial,” defense lawyer Timothy Sweeney wrote.
During the trial last year, defense attorneys received a tip after the second day of testimony that one juror told a co-worker he wanted to “hang” the two accused ringleaders in the Whitmer plot. The judge questioned the juror privately. He later ordered court filings, addressing the juror misconduct allegations, to be sealed. The juror was never identified.
“The issue on appeal is whether the judge should have allowed the juror to serve in the first place, so the fact that the juror became the foreperson is not as significant,” former Detroit U.S. Attorney Matthew Schneider told The Detroit News. “We’re likely to see the court of appeals closely scrutinizing the judge and the questions he asked the juror.”
“If it’s true that there was a bias of some kind, that would be compounded by the fact that not only is it a voting juror but they are in a position where they may be able to lead the discussions, which could convince or persuade others,” Birmingham defense lawyer Wade Fink added.
Fox and Croft are asking for a third trial following a mistrial and their convictions in the second trial. In Wednesday’s filing, which focuses on juror bias, the pair also accuse the judge of imposing unfair time limits on their attorneys’ cross-examinations of key government witnesses.
Federal agents arrested the men in October 2020 for hatching the kidnapping plot in anger over COVID-19 restrictions imposed by Whitmer’s government. The plot was foiled by a one-time militia member who started working with federal law enforcement.
Two men, Ty Garmin and Kaleb Franks, pleaded guilty to charges tied to the plot. Two other men, Daniel Harris and Brandon Caserta, were found not guilty by a jury last year.
