GRAND RAPIDS, Mich. — A judge ordered two of the men charged in the alleged plot to kidnap and kill Michigan Governor Gretchen Whitmer to stand for a retrial. The two men were back in federal court Thursday afternoon, asking that their charges be dismissed.
Back on April 8, after five days of jury deliberations, Daniel Harris and Brandon Caserta were found not guilty on all charges leveled against them. A mistrial was declared in the cases against Adam Fox and Barry Croft after the jury was unable to come to a decision on their charges.
According to federal court documents, defense attorneys for Fox and Croft argue their charges should be dismissed because Harris and Caserta were acquitted and because there was insufficient evidence presented by the government during the trial.
“Because of the preclusive effect of the acquittals of Mr. Harris and Mr. Caserta as well as the insufficient evidence presented by the government at trial, Mr. Croft requests the Court enter a judgment of acquittal pursuant to Rule 29(c) on each count of the superseding indictment,” the documents state.
In court Thursday, a judge denied the request and ordered Fox and Croft to stand for a retrial.
"We really weren’t anticipating that the judge would actually go as far as an acquittal. There is a reason for a jury trial, and there are reasons to have charges aired in court and part of that is transparency... and we know so far that the evidence we were able to produce in the first trial was enough to get us here to this, Chris Gibbons, Adam Fox's attorney, told FOX 17 after Thursday's hearing.
"All signs point to the federal government having manipulated and conceived a fictional crime here... we're looking forward to making more strides, and making that even more evident to the jury, and I think the public at large, because I think a grave injustice may have been done in this case."
Joshua Blanchard, Barry Croft's attorney, spoke in court Thursday about whether or not the defense will be allowed to refer to the results from the first trial during the retrial.
When asked by FOX 17 as to whether or not he thinks the previous acquittals will impact a new trial, he said, "I don’t know how it doesn’t, the jury found there wasn’t enough evidence that these other guys were involved. I think that’s pretty compelling that their case is weak."
The US Attorney for the Western District of Michigan at the time of the verdicts, Andrew Birge, said his office planned to retry the cases against Fox and Croft.
Mark A. Totten was sworn in as the new US Attorney for the district on May 5.
Totten has since filed a motion with the court saying he would not be participating in the upcoming retrial. FOX 17 reached out to his office for details on why he decided to withdraw from the case, but they had no comment at the time.
Croft's attorney Joshua Blanchard is working to find out why the new US Attorney recused himself from the case.
"I asked for a copy of the memo he [Totten] wrote explaining why he needed to be recused, and the government refused to turn it over, so I filed a lawsuit against the US Attorney's office to get a copy, and we’re waiting to receive a copy."
Nils Kessler and Jonathon Roth lead the prosecution against Fox, Croft, Harris, and Caserta during the initial trial. Roth has since withdrawn from the case.
On Thursday, Kessler and Christopher O'Connor, another assistant US attorney, showed up on behalf of the government.
Adam Fox, Barry Croft, Daniel Harris and Brandon Caserta were all arrested in October of 2020 and charged with conspiracy to kidnap for allegedly planning to kidnap Governor Whitmer at her vacation home. Fox, Croft and Harris are all facing additional charges.
The men were supposedly angry over COVID-19 restrictions and allegedly planned it from June to October 2020.
The defense argued that the defendants were entrapped by undercover agents and informants who pushed the plan forward