Convicted Whitmer kidnap plotters send private eye to juror's workplace – Detroit Free Press

September 16, 2022
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Two convicted kidnap plotters in the Gov. Gretchen Whitmer case hired a private investigator to go to a juror’s workplace to find out if that juror had it out for them and planned to “hang” them if picked to sit on the jury, as alleged by coworkers, according to a newly unsealed court filing.
Two of those coworkers were tracked down by the private eye and offered new allegations about the juror, including that the juror was “far-left leaning,” said the defendants were “guilty no matter what,” and texted a family member during deliberations that a verdict had been reached but had not yet been announced, according to the filing.
The investigator, however, struck out in getting a third and perhaps more crucial coworker to talk to him: the employee who allegedly heard it firsthand from the juror that he/she believed the defendants were guilty from the start.
“I attempted to speak with person #3 as they were walking to their vehicle in the parking lot,” the investigator said in a declaration filed in federal court. “I called the person’s name, and they acknowledged me. I identified myselfand told Person #3 that I wanted to speak with them regarding possible statements that (a juror) had made regarding the Whitmer trial.”
The investigator continued: “Person #3 stated that they did not know anything and refused to speakwith me and got into their vehicle.”
The investigator persisted:
“I offered to speak with them outside of work but they did not want to speak with me. I offered my card in case they changed their mind. They said that they did not want to talk with me later and declined to take my card and drove out of the lot.”
More:How 3 controversial jurors wound up in the Whitmer kidnap jury box
More:Juror’s daughter-in-law got high with kidnap defendant Fox near Whitmer cottage
The investigator’s declaration is part of a broader effort by defense attorneys to get a new trial. Their clients, Adam Fox and Barry Croft Jr., face up to life in prison after a jury convicted them last month of plotting to kidnap Whitmer out of anger over her handling of the pandemic, and blow up a bridge near her vacation home to slow down law enforcement.
The defense long maintained this was a case of entrapment and has vowed a vigorous appeal, which right now appears to focus on a potentially problematic juror who surfaced on the second day of trial, but was allowed to stay on the case after the judge interviewed the person and concluded there was no proof of bias.
The misconduct tip was made by coworkers who heard this secondhand, court filings show, and the person who allegedly heard it directly won’t speak.
But the defense suspects foul play and argues a new trial is warranted “based on the misconduct of and the appearance of judicial bias which impacted the proceedings.”
In seeking a new trial Tuesday, the defendants asked the judge for a so-called Remmer hearing — a proceeding to determine whether juror bias occurred. That filing was initially sealed, as required under a prior court order, though U.S. District Judge Robert Jonker unsealed it Thursday, with redactions.
The identity of the juror remains confidential.
Here, according to the unsealed filing, is a detailed look at how the defense learned of this potentially problematic juror, and the steps it took afterward.
On Aug. 10, the day after opening statements, the defense got a tip from a juror’s co-worker that the juror had been telling people at work that he/she was hoping to get on the Whitmer trial, and intended to “hang” the defendants if picked.
More:Whitmer kidnap Trial No. 3? Don’t count on it, experts say.
More:Judge tells Whitmer kidnap jury: It’s not entrapment if you’re already willing
This person provided the juror’s full name and physical description, and gave the defense his name and phone number. That evening, the defense informed the judge about the allegation and asked if they could interview the juror, though the judge refused.
Instead, the judge interviewed the juror privately in his chambers — along with two court staffers — in a seven-minute interview that ended with the judge concluding the juror was not biased and could continue to hear the case. The juror denied telling coworkers that he/she believed the defendants were guilty. The judge took the juror at the person’s word.
The defense wanted to be included in that interview, but the judge said no.
In allowing the juror to remain on the panel, the judge noted that the person who first contacted the defense was unwilling to identity the person who heard the alleged statements firsthand from the juror.
According to the investigator who interviewed this tipster more than once, this person got quiet over time, “stating that he has a fear of negative employment consequences” if he continued to talk about the verdict.
For example, on the eve of the verdict, the investigator contacted the initial tipster to see if he could provide any further information on statements the juror made prior to the trial.
But the tipster “said that no one was willing to speak with me about (the juror’s) statement … and people are afraidof losing their jobs. He said that people are also being protected against actions by BLM or similar organizations if their names get out.”
The tipster also told the investigator that “if he is compelled to talk about (the juror), he will now say that he does not know anything.”
The defense maintains that had the judge ordered a Remmer hearing early on, more information could have been compelled from the tipster.
But that didn’t happen. So the defense hired a private eye to dig up information it hopes will save Fox and Croft.
On the morning of Aug. 23, the day the guilty verdicts came down, defense investigators identified anotherco-worker of the potentially problematic juror who provided similar allegations as the first tipster.
But tipster No. 2 also heard things secondhand, alleging he heard from someone else that the juror intended to get on the “Whitmer kidnapping” jury to convict the defendants.
The second tipster, however, provided the name of the person who heard this firsthand. And the defense investigators tracked that person down.
The second tipster also told investigators that one of the juror’s family members also works for the same employer as the juror.
“In fact, (Tipster #2) approached a defense investigator outside of the place of employment regarding misconduct because (the tipster) was fearful that (the juror) would hear (him) speaking about the situation,” the filing states.
After defense investigators identified the employee who allegedly had firsthand knowledge of juror bias — identified in court records as Person #3 — they asked the employer if they could speak with the worker, though the human resources manager refused to provide access without permission from the company’s general counsel.
Croft’s lawyer tried to get that permission from the employer’s lawyer, but failed. Later that morning, the verdicts came down.
On the day of the verdicts, defense investigators identified the vehicle driven by “Person #3” and waited for him to get off work on the afternoon of Aug. 23 so they could question him, records show.
While waiting for Person #3 to get off work, Tipster #2 informed investigators that the juror’s family member announced at work that day that their juror/relative had reached out during deliberations and stated that “the jury had reached a verdict but that it had not been delivered in court yet.”
Defense lawyers argue this communication was in “clear violation” of the court’s instruction forbidding jurors to speak to anyone about the case or disclose the status of voting.
Moreover, the defense argues it was entitled to an evidentiary hearing regarding juror misconduct during the trial, stressing the Sixth Amendment guarantees a criminal defendant a trial by an impartial jury.”The Supreme Court ‘has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias,'” defense lawyers argue in their filing.
While the burden is on the defense to prove juror bias, they argue, they’ve been denied the avenue to do just that. “The Court has placed the defendants in a classic Catch-22. The Court denied the defendants an opportunity to participate in the questioning of the juror and has ordered that the defendants may not contact the jurors following the verdict,” the defense argues. “As such, the court has prevented the defendants from developing the record regarding the juror misconduct, despite it being their burden to carry. “
The juror issue aside, the defense also argues a new trial is warranted for the following reasons: Time limits were imposed on only the defense during cross-examination of a key government witness; the judge “belittled,” interrupted and criticized the defense in front of the jury, told them they were taking too long; and once referred to defense arguments as “crap” while the jury was on break.
“Throughout trial, the Court showed hostility toward defense counsel … often commented on the quality of the questioning of defense counsel and the persuasiveness of (its) arguments … in a manner that cast doubt on the believability of the arguments,” the defense claims, adding: “because the court’s position before the jury is ‘overpowering’ and the Court belittled counsel and counsel’s performance in front of the jury, a new trial iswarranted.” Fox and Croft are scheduled to be sentenced in December.
Contact Tresa Baldas: tbaldas@freepress.com

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