If the men convicted of plotting to kidnap Gov. Gretchen Whitmer think they're entitled to a new trial due to an alleged rogue juror, they better think again, prosecutors argue in a new scathing filing that blasts a claim that a liberal juror was out to get the defendants.
Not only is there no proof of such juror bias, the prosecution says, but the tipster who came up with that story - that one of his "far left-leaning" coworkers told someone at work that he/she wanted to "hang" the defendants - may have made it up.
"His professed familiarity with the juror - and allegedly, the juror's politics - raises the distinct possibility that the caller was the one attempting to interfere with the jury for his own partisan ends," prosecutors allege, stressing the tipster refused to cooperate and never heard anything firsthand from the juror in question.
'An anonymous tip may be motivated by an unseen agenda'
Rather, prosecutors said, the tipster called the defense on the second day of trial with second-hand information about an allegedly biased juror. But when pressed to offer more information, they said, the tipster refused to talk, said he would say "he does not know anything" if ordered to talk and "that people are also being protected against actions by BLM or similar organizations if their names get out."
These comments raised red flags for the prosecution, which argues the defendants were convicted fair and square and don't deserve a new trial.
"The danger that an anonymous tip may be motivated by an unseen agenda has long been recognized" by the courts, prosecutors argue, adding the judge handled the juror misconduct allegation appropriately.
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The prosecution's filing is a response to the defense's request for a third trial for Adam Fox and Barry Croft Jr., who were convicted in August on all counts relating to a conspiracy to kidnap Whitmer out of anger over her handling of the pandemic. Their first trial ended in a hung jury in April.
In seeking a new trial, the defense argues Fox and Croft faced unfair prejudice from a problematic juror, a biased judge and time limits that were imposed only on defense lawyers during their cross-examination of a key government witness: Kaleb Franks, a co-defendant who pleaded guilty early on and testified against his alleged accomplices.
But Assistant U.S. Attorneys Nils Kessler and Christopher O'Connor argue that none of the defense's claims has merit.
Feds: Judge properly handled juror issue
Of particular concern for the defense is that U.S. District Judge Robert Jonker interviewed the potentially problematic juror privately in his chambers, with two staffers, and refused to allow either the prosecution or defense to be present. The judge did, however, provide both sides a transcript of that interview, during which the juror denied making any biased statements at work about the defendants.
"Here, the Court appropriately weighed the sworn voir dire statements of the juror - who was subject to criminal penalties - more heavily than second-hand reports of a person who refuses to repeat his claims in a public forum with consequences for lying," prosecutors wrote. They stressed that neither the tipster nor the co-worker who allegedly heard the juror express bias "are willing to go on the record under oath to allow the court and the parties to determine whether any of the information initially provided … was truthful or credible."
Prosecutors also wrote that the judge made the right call in refusing to let either side interrogate the juror about the misconduct claims, as doing so "might in fact create a bias where none previously existed." In other words, the juror could have gotten upset or angry at being grilled by the defense about his or her honesty.
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Feds: Judge was tough on us, too
The defense has argued that Jonker treated them unfairly during trial, made them look bad in front of the jury by constantly cutting them off, appeared to favor the prosecution with his courtroom antics and comments, including once calling their arguments "crap" - but not when the jury was present.
But prosecutors say they didn't have it easy, either.
"The court criticized both sides whenever it perceived the party was using the jury's time inefficiently," prosecutors wrote, adding "the court occasionally expressed impatience with the attorneys, but was equally direct in criticizing both parties whenever it perceived the party was not using the jury's time efficiently."
Moreover, prosecutors stressed: "The court also appropriately cautioned the jury before its deliberations that nothing the court said or did during the trial was meant to influence their decision on the factsin any way."
Feds: Judge gave plenty of warnings
As for the judge imposing time limits on the defense during cross-examination, the prosecution said Jonker had the discretionary power to do so and called the time limits "reasonable." It also said that the defense had plenty of warnings during trial that the judge may issue time limits.
"By their own admission, the court warned them for four consecutive days that time limits might be imposed if they did not focus," prosecutors wrote, noting the time limit was enforced only during cross-examination of one witness - Franks.
And that witness, the prosecution argues, covered the same ground as witness Ty Garbin - a second co-defendant who also pleaded guilty and testified against the others at trial.
Perhaps more notably, the prosecution argues, is that Jonker imposed no limits on the cross-examination of the undercover informant known as Big Dan and of FBI agents, "who were objectively more important witnesses."
The defense has claimed that Big Dan was the backbone of what they deem was a bogus kidnapping case hatched by the FBI and carried out by rogue informants who they allege egged on the defendants and enticed them into saying and doing things they wouldn't have otherwise. The jury was allowed to consider the entrapment defense, though it came back with guilty verdicts after just over a day of deliberations.
The defense, meanwhile, has vowed an appeal and is seeking a new trial - to which prosecutors are adamantly opposed.
"New trials are reserved for cases in which a "manifest injustice" has been done such that an innocent person may have been convicted," Kessler and O'Connor write. " Croft and Fox have preserved their arguments for appeal, but have fallen far short of demonstrating the 'manifest injustice' requisite for a new trial."
Contact Tresa Baldas: firstname.lastname@example.org
This article originally appeared on Detroit Free Press: Feds suggest tipster made up rogue juror claims in Whitmer kidnap case