Entrapment in play as appeals court looks at Whitmer kidnap plot convictions

Barry Croft Jr. , left, Adam Fox

An appeals court is raising major questions about the trial of two key figures in a plot to kidnap Michigan’s governor — and putting federal prosecutors on the defensive as the government tries to preserve the extraordinary guilty verdicts.

After hearing arguments in May, the court took the uncommon step of asking for more written briefs on the impact of a trial judge’s decision to bar evidence that might have supported claims of entrapment made by Adam Fox and Barry Croft Jr.

Fox and Croft are in prison for leading a conspiracy to try to snatch Gov. Gretchen Whitmer in 2020. Prosecutors said a ragtag band of anti-government extremists had hoped that an abduction at her vacation home would spark a civil war around the same time as the presidential election.

Defense attorneys wanted jurors to see more communications between FBI handlers, undercover agents and paid informants who had fooled Fox and Croft and got inside the group. They argued that any plan to kidnap Whitmer was repeatedly pushed by those government actors.

But at the 2022 trial, U.S. District Judge Robert Jonker greatly restricted the use of certain text messages and audio recordings under his interpretation of evidence rules.

"Trials are about telling your story, giving your narrative, trying to persuade," Croft’s appellate lawyer, Timothy Sweeney, told the 6th U.S. Circuit Court of Appeals, which posts audio on its website.

"When you’re denied the ability to use the rules of evidence where they benefit you, that is an unfair trial. ... This case needs to be reversed and sent back for a new trial for that reason," Sweeney said.

He might have Judge Joan Larsen on his side. She was the most aggressive on the three-judge panel, at one point seeming incredulous with the government’s stance on an important legal precedent at play in the appeal.

"Oh, come on," she told Assistant U.S. Attorney Nils Kessler. "Really?"

Larsen said defense lawyers wanted jurors to see that "government informants were just pounding" Fox and Croft.

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"Make a plan, make a plan, make a plan — you’re just sitting around. You’re all talk, you’re no action, make a plan," she said. "Surely that’s relevant."

Kessler said any error by Jonker to keep out certain messages was harmless.

"They were talking about doing this before they ever met the informants," he said. "Adam Fox said we need to take our tyrants as hostages two weeks before he had ever met a government informant. Barry Croft had been talking about it much longer."

Lawyers met a Monday deadline to file additional briefs. Sweeney and co-counsel Steven Nolder said there were dozens of examples of excluded evidence that could have bolstered an entrapment defense.

The error "infested the entire trial," they said in asking to have the convictions thrown out.

Related: Defense for suspects in Whitmer kidnapping plot blast FBI for entrapment, lack of credibility

Kessler, however, said Fox and Croft didn’t need to be egged on by informants or undercover agents. He noted that weapons and bomb-making material were discovered after the FBI broke up the operation with arrests in October 2020. Whitmer, a Democrat, was never physically harmed.

The jury would not have been convinced that "Fox or Croft were ‘pushed’ against their will into conspiring to use explosives or conspiring to kidnap the governor," Kessler said.

It’s not known when the appeals court will release an opinion. Another issue for the court is an allegation of juror bias.

Prosecutors had a mixed record in the overall investigation: There were five acquittals among 14 people charged in state or federal court. Fox, 41, and Croft, 48, were convicted at a second trial after a jury at the first trial couldn’t reach a unanimous verdict.