A federal jury acquitted two men of conspiring to kidnap Michigan Gov. Gretchen Whitmer, and deadlocked on the counts against two others, apparently agreeing to some degree with defense claims that FBI agents entrapped the men in a violent plot shortly before the 2020 election.
The jury, which began deliberating Monday, told U.S. District Judge Robert Jonker in a note Friday that they had reached a verdict on some of the charges and could not agree on others. The judge instructed them to deliver the partial verdict, which acquitted Daniel Harris and Brandon Caserta while deadlocking on the charges against Adam Fox and Barry Croft Jr.
A mistrial was declared for Fox and Croft, and federal authorities said they plan to go to trial a second time in hopes of convicting them.
The case marks one of the rare instances in which an entrapment defense was even partly successful in a terrorism case.
Defense lawyers said the prosecution was built on marijuana smoke and mirrors, and that undercover agents were responsible for the “radicalization” of men with no history of violence. The agents, the defense team argued, tried to talk the men into a fantastic plot that never materialized.
Caserta’s attorney, Michael Hills, told reporters outside the courthouse that the FBI’s conduct in the case was “unconscionable" and said the verdict was a repudiation of the tactics used by informants and undercover agents.
The acquittals and hung jury came even though prosecutors called as witnesses two admitted co-conspirators, Ty Garbin and Kaleb Franks. Garbin and Franks pleaded guilty months ago, and told the jury they had agreed to kidnap Whitmer, a Democrat, from her lakeside home.
The men allegedly discussed taking the governor to the middle of the lake on a boat, or holding a kind of mock tribunal for her.
Testimony at their trial showed the men were particularly angry about state and federal government pandemic restrictions, and the possibility of vaccine mandates. Three of the defendants are from Michigan; Croft is from Delaware.
U.S. Attorney Andrew Birge said his office was “disappointed” with the verdict, adding, "we continue to respect the jury trial system whatever the outcome.”
After the verdict was announced, Whitmer’s chief of staff, JoAnne Huls, decried what she called the “normalization of political violence.”
“The plot to kidnap and kill a governor may seem like an anomaly. But we must be honest about what it really is: the result of violent, divisive rhetoric that is all too common across our country,” Huls said. “There must be accountability and consequences for those who commit heinous crimes. Without accountability, extremists will be emboldened.”
The government’s case was built largely on secret recordings of the men’s conversations. In closing arguments, prosecutors said the defendants’ own words showed they were rage-filled extremists who hoped to spark a kind of civil war that would keep Biden from becoming president.
Concern about far-right extremist groups and self-styled militias grew stronger months after the men were arrested, when a mob of people who believed President Donald Trump’s false claims that the election was stolen stormed the U.S. Capitol on Jan. 6 seeking to prevent the certification of Joe Biden’s election as president.
“If you don’t like your elected representatives, you can vote them out at the ballot box. That’s what makes this country great,” Assistant U.S. Attorney Nils Kessler told the jury last week. “What we can’t do is kidnap them, kill them or blow them up. That’s also what makes America great.”
Kessler said the scheming stretched back to a national meeting of self-styled militia groups in Ohio in the summer of 2020, then expanded to include other “training” meetings, and a trip at night to look at the governor’s home and inspect a nearby bridge, which they talked about blowing up to hamper any law enforcement response.
The men also practiced at what they called a “shoot house” to simulate entering Whitmer’s home with guns, according to trial evidence.
Defense lawyers argued that the alleged ringleader, Fox, was frequently stoned, and he and the others were led down a dark path by the FBI.
“This case is steeped in marijuana smoke,” said Fox’s lawyer, Christopher Gibbons, noting that testimony showed his client repeatedly smoked pot before discussions about the alleged plot. “These agents took advantage of Adam’s substance abuse issues.”
Gibbons said Fox was engaged in live action role playing, or LARPing, not any real world conspiracy. “The plan was utter nonsense. … It wasn’t real to Adam Fox," said Gibbons. His client, he added, was "usually impaired. He’s just playing a game.”
The defense lawyer blamed Dan Chappel, a key informant in the case whose tip to the FBI started the investigation. Chappel, an Army veteran, joined a self-styled militia group called the Wolverine Watchmen, but became alarmed when he heard some participants talk about attacking police.
Prosecutors countered that Chappel risked his own safety to tell authorities about the brewing danger posed by the other men. “Thank God for Dan Chappel,” Kessler told the jury.
Croft’s lawyer, Joshua Blanchard, said the recordings and texts showed “crazy" and violent talk, but it wasn’t a real plan.
“There’s no doubt Barry said some things that were offensive, for sure, but the thing I find far more offensive is the way the FBI and the government behaved,” said Blanchard. “That’s not what I think of when I think of what it means to protect and serve, what it means to have integrity. This investigation was an embarrassment.”