A Stunning Surprise In The Michigan Kidnapping Case Calls The Government’s Domestic Terror Strategy Into Question

Despite the government’s extraordinary efforts to muzzle the defense, a jury in Grand Rapids federal court on Friday acquitted two men on charges including conspiring to kidnap Michigan Gov. Gretchen Whitmer. The jury was unable to reach a verdict on the other two who had been charged.

As a result, Daniel Harris and Brandon Caserta are now free men, while the federal judge overseeing the case called a mistrial on the counts against Adam Fox and Barry Croft. In a written statement after the verdict, Andrew Birge, the US Attorney for the Western District of Michigan, said that Fox and Croft “now await re-trial” although he did not say when that would be.

The outcome of the trial is a stunning rebuke to the prosecution, which at times appeared to view the case — one of the most prominent domestic terror investigations in a generation — as a slam dunk. The split verdict calls into question the Justice Department’s strategy, and beyond that, its entire approach to combating domestic extremism. Defense attorneys in the case, along with observers from across the political spectrum, have argued the FBI’s efforts to make the case, which involved at least a dozen confidential informants, went beyond legitimate law enforcement and into outright entrapment.

It may also leave the two defendants who chose to plead guilty and testify for the government in hopes of leniency, Ty Garbin and Kaleb Franks, wondering whether they made the right choice. Last summer, Garbin was sentenced to 75 months in prison, while Franks, who changed his plea in February, is still awaiting sentencing.

Also up in the air is the fate of eight men charged by Michigan’s Attorney General for providing material support to terrorism for their role in the alleged plot. Three of them face trial in September, but it may be challenging to convince a jury that they aided a plot the very existence of which has not been proven.

“The jury clearly saw what the FBI was doing to create this case,” said Caserta’s attorney, Mike Hills, in an interview after the verdict was announced. “They saw it, and they didn’t like it.”

To make their case, federal prosecutors presented a mountain of evidence: hundreds of audio clips, videos, and text messages, many of which show the men describing violence they would personally like to inflict on the governor, plus the testimony of a confidential informant, two undercover FBI agents, and two defendants who had pleaded guilty and agreed to cooperate with the investigation.

But the most striking thing about the closely watched 15-day trial might be what the jury never got to see.

Both before and during the trial, prosecutors went to extraordinary lengths to exclude evidence and witnesses that might undermine their arguments, while winning the right to bring in almost anything favorable to their own side. As a result, defense attorneys were largely reduced to nibbling at the edges of the government’s case in hopes of instilling doubt in the jurors’ minds, and to making claims about official misconduct with vanishingly few pieces of evidence to support them.

Over and over during the course of the trial, the prosecution objected to any attempts by defendants to provide context for the often shocking soundbites and text messages shown in court — objections sustained by a judge who agreed that such material risked confusing the jury.

The result was, at least from the defense’s point of view, a stunningly one-sided presentation that left the preponderance of evidence out of court and gave jurors precious little to balance against the Justice Department’s claims.

“The government controls the evidence,” Fox’s attorney, Chris Gibbons, said in his closing statement last Friday, “and they can play whatever they want.”