Whitmer kidnap trial: What happens next to remaining defendants

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Barry Croft Jr. and Adam Fox

DETROIT (AP) - A jury’s inability to reach a unanimous verdict for two men charged in a conspiracy to kidnap Michigan Gov. Gretchen Whitmer means the federal government can take them to trial again.

The jury last week acquitted Daniel Harris and Brandon Caserta, whom prosecutors described as "soldiers" in the foiled plot, but deadlocked on the alleged leaders, Adam Fox and Barry Croft Jr. It was an extraordinary setback for the government, which claimed the men wanted to trigger a civil war before the 2020 election.

Hung Jury

A hung jury is unable to unanimously agree on someone’s guilt or innocence. It could be just one person on the 12-member panel who disagrees with the others.

Prosecutors can put someone on trial again or drop the case. U.S. Attorney Andrew Birge told reporters Friday that Fox and Croft are "awaiting trial and we’ll get back to work on that." They remain in jail.

Mark Chutkow, who until recently led the criminal division of the U.S. attorney’s office in Detroit, said he would be surprised if prosecutors fold, citing the significance of the allegations.

"The government has two cooperating defendants who pled guilty, who said they were part of the crime. That’s pretty compelling evidence," Chutkow said, referring to Ty Garbin and Kaleb Franks, who testified for prosecutors.

So What Happened?

Only the jury knows. U.S. District Judge Robert Jonker barred lawyers from contacting jurors for any post-trial intelligence, but jurors can reach out to them on their own.

Chutkow said it could help prosecutors and defense attorneys as they prepare for a second trial.

"As a litigant, sometimes you get in the fog of war," he said. "You’ve spent so much time with your case, you’re not objective as to what it looked like."

Fox, who was living in the Grand Rapids area, and Croft, from Bear, Delaware, didn’t testify. Their defense came through the cross-examination of the government’s witnesses.

Fox and Croft might have been angry with Whitmer over COVID-19 restrictions, but there was no real plan to kidnap the Democratic governor, their lawyers insisted. They say undercover FBI agents and informants inside the group fueled wild talk.

Detroit-area defense lawyer Michael Rataj said the challenge for prosecutors in Grand Rapids will be picking a jury from western and northern Michigan.

"It’s Trump country and they don’t like Whitmer. Prosecutors have an uphill battle," Rataj said.

What Happened After Other Big Cases with Hung Juries?

Prosecutors sharpened their focus after a federal jury couldn’t agree on 23 of 24 charges at former Illinois Gov. Rod Blagojevich’s 2010 corruption trial. Jurors said just one person was a holdout.

At Blagojevich’s second trial, prosecutors skipped past his expensive taste for tailored suits and furs for his wife. He was convicted of multiple crimes, including an effort to sell an appointment to the U.S. Senate.

Brandon Caserta attorney after Whitmer trial acquittal: 'Our governor was never in any danger’

But prosecutors decided against retrying New Jersey Sen. Bob Menendez. Many jurors at his 2017 trial favored acquittal. A judge subsequently threw out key bribery charges.

"Sometimes, there is bluster and chest thumping" by prosecutors about a retrial after a deadlocked jury, said Alan Tuerkheimer, a Chicago-based jury consultant. "But when the dust settles and they think more clearly, they can change their minds."

Learning how jurors voted can be crucial. A jury that was one or two votes away from acquittal is a sign of a weak case, Tuerkheimer said, and can dissuade prosecutors from trying again.

Who's in the Wings?

Eight other men face state charges in either Jackson or Antrim counties. They’re accused of assisting the others in the Whitmer plot, among other crimes, and have pleaded not guilty.

Whitmer’s vacation home is in Antrim. Fox and Croft, accompanied by undercover operatives, took a night ride to check the location and look at a bridge that could be blown up during a kidnapping, according to evidence in the federal case.

The state cases have moved slowly since fall 2020; five men charged in Antrim still haven’t had a key hearing at which a judge decides whether there’s enough evidence to go to trial.

Defense attorney Kareem Johnson, who is representing Pete Musico, a founding member of the Wolverine Watchmen militia, compared the two acquittals in federal court to a thrilling basketball game.

"It’s like when a teammate hits a 3-pointer. It motivates you to get back on defense and get a stop," Johnson said Monday.