GRAND RAPIDS, Mich. — The men on trial for the alleged plot to kidnap the governor are facing various charges but all are facing felony conspiracy charges. here now to talk about what the government actually has to prove at trial to secure a conviction for conspiracy.
Former U.S. Attorney for the Western District of Michigan Pat Miles and Professor Tanya Krause-Phelan joined Josh Berry to explain what the government actually has to prove at trial to secure a conviction for conspiracy.
What does the government have to prove to be able to secure a conviction?
Miles: Well, a conspiracy to kidnap carries a potential federal penalty of up to 20 years. In the federal system there, there is no early release, you do get one month for every year served off the term but there is no early parole. The prosecution does bear the burden of proof. Of course, there's evidence but here they have confidential informants, they have undercover agents, they have text messages, they have videos, they have audio recordings, they have evidence of the planning that went into this potential crime. When the U.S. Attorney's Office brings a case, there's an over 95% conviction rate. We've got really good law enforcement agents and federal agents who know how to put together a case, and we've got really good prosecutors in the office that know how to present it to a judge and jury.
When the defense goes into the trial, they're going to try and convince the jury of entrapment. How will that work? And how might that play out in court?
Professor Krause-Phelan: In the federal system, we follow a two-part test for entrapment. So, the defendant has to show that he was induced to commit the crime, in other words, that the government did something that talked him into committing the crime. And once the defendant shows that the burden shifts back to the government to say, right, even if he was induced, he was predisposed to commit this crime. He was going to commit it anyways, whether the government agent talked to him or not.
This trial could last five to six weeks. The judge has already considered immediately excusing anybody that might have plans for spring break. They are taking a very real approach to this jury selection process. Do we think that it may take five to six weeks? We talked about already having mountains of evidence, there's a lot to get through four separate defendants? How long might this trial take?
Miles: Well, it could certainly take that long or longer. The U.S. Attorney's Office here in the Western District typically has one trial a month, that's kind of an average year for this office. So, this would certainly consume a lot of resources.
This case has some echoes of a case from the Eastern District of Michigan about 10 years ago called the Hutaree militia. And that was a group of people who also were charged with a conspiracy to commit terrorist acts. And they actually had their charges dismissed by the judge, it didn't even get to the jury. And that's the prosecutor’s greatest fear is that you, at the end of your case, the judge says that you haven't presented a strong enough case under the law to convict these defendants. And we're going to dismiss before the defense even has to raise their case or even after that, before we send it to the jury.
Are there effects that this trial could have politically, or in trials in the future that deal with these same cases?
Miles: I would say that a couple things: one that case 10 years ago really was dismissed because it was more like a First Amendment, where people have the right to spout off and say, ‘Boy, I'd like to do this or that’ and really shake things up versus now. We're making plans. We're buying explosives and creating explosive devices. We're buying ammunition. We're looking at maps and thinking about ways to implement this kidnapping and what we're going to do. I mean, that's more than just talk that's taking affirmative steps. The government at least was really on top of this before something bad happened. but that's always the fine line.
Professor Krause-Phelan: I represented defendants in Militia cases and with each case that happens, law enforcement learns more and more about how these organizations operate, both lawfully and illegally. And so even if there were to be an acquittal, in this case, the information that law enforcement was able to obtain is something that they can carry forward with them for future investigations
Miles: To Tanya's point, that Hutaree case on the Eastern District, I think the FBI learned a lot from that case. Likewise, the alleged conspirators here and others, I think they're probably watching too, because don't forget, there's two undercover agents that are actively working other cases that the judge is now compelling to testify using their real names, not pseudonyms in court. And so, I think these other groups that might be out there are watching also very carefully and wondering, is the person sitting next to me while I'm talking to an undercover informant?
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