GRAND RAPIDS, Mich. — The last two men facing federal charges for allegedly plotting to kidnap and kill Michigan Governor Gretchen Whitmer were back in court Tuesday morning for jury selection in their retrial.
The process is expected to stretch at least into the late afternoon.
Potential jurors are being asked questions about whether they consume a lot of news or have strong political beliefs, and whether they will be able to set aside any potential personal biases to deliver an impartial verdict.
One of the women called to be a potential juror told the court that her daughter-in-law actually ran into some of the defendants at a boat launch in Elk Rapids, and was later contacted by the FBI about it.
Adam Fox and Barry Croft are back on trial after their previous jury failed to reach a verdict on any of the charges brought against them. Their co-defendants in the case, Brandon Caserta and Daniel Harris, were found not guilty on all charges.
The government contends that the group became incensed at Governor Whitmer's handling of COVID-19 in the early days of the pandemic, prompting them to begin communicating with similar minds on the internet and at rallies throughout Michigan.
Fox was living in the basement of a vacuum repair shop in Grand Rapids before his arrest, while Croft was a semi-truck driver who resided in Bear, Delaware.
Prosecutors have called the two men "ringleaders" of the alleged plot.
They are accused of going on two reconnaissance trips to Governor Whitmer's vacation home in Elk Rapids, driving past the home and taking photos of the front drive.
The government put forth evidence in the first trial that the group, including Fox and Croft, traveled to multiple locations in Michigan and Wisconsin for training events, including using a "shoot house" to run drills.
Defense attorneys for the men say this was all legal activity, and nothing more than "tough talk" protected by the First Amendment. Their claim is one of entrapment— that the government, not their clients, pushed the conspiracy forward.
They accuse undercover FBI agents and confidential human sources who infiltrated the group of pushing forward the alleged plan.
Prior to the first trial, two co-defendants, Ty Garbin and Kaleb Franks, entered into plea deals with the government, agreeing to testify on their behalf.
Garbin testified on March 23, saying the group did not agree to Governor Whitmer's COVID-19 restrictions and they trained to take out anyone who may have tried to stop the kidnapping plot, including law enforcement.
Garbin told prosecutors that there was “no question” in his mind that everyone was clear that the plan was to kidnap the governor. He said the group “wanted to cause as much disruption as possible to prevent Joe Biden from getting into office.”
Prosecutors said Tuesday that they do plan to call Garbin and Franks to testify again in this second trial.
Defense attorney for Adam Fox, Chris Gibbons, said Tuesday that they may call Brandon Caserta and Daniel Harris to the stand.
Joshua Blanchard, attorney for Barry Croft, said he may call FBI Special Agent Jayson Chambers, one of the investigating case agents, to the stand.
Following the initial trial, when a jury failed to return verdicts for Fox or Croft, the US Attorney for the Western District of Michigan at the time, Andrew Birge, said his office planned to retry the cases against the men.
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.
Joshua Blanchard, attorney for Barry Croft, ended up filing a lawsuit on June 13 against the US Attorney's office to get more information about his recusal.
"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," Blanchard told FOX 17 back in July.
"On information and belief, the recusal was at Mr. Totten’s request," the filing reads.
"On information and belief, a memorandum exists detailing Mr. Totten’s request to be recused because DOJ policy required Mr. Totten to draft such a memorandum to request his recusal."
Blanchard writes that he requested the memo through a freedom of information act (FOIA) request back on May 10, and has still not received any response from their office.
The US Attorney's office filed a response in federal court on July 27, saying in part, "Mr. Totten appropriately notified Defendant [the government] of circumstances that might necessitate his recusal and complied with Defendant’s coordination of the recusal action. Defendant denies any remaining allegations."
They also reject the notion that Totten was required to submit a written memorandum regarding his recusal.
Over the course of the investigation into the men, more than 1,000 hours of audio and video were recorded, not just by the two undercover FBI agents who had infiltrated the group, but there were at least 11 other confidential sources collecting info for the agency.
Prosecutors plan to show the jury sections of these recordings, as well as digital conversations that took place over text, social media, and encrypted chat applications.
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