A federal judge showed bias against defendants, calling their attorneys' arguments “crap” and unfairly limited their cross-examination of a key witness. A juror had their mind made up in the case before it even started. These are the claims made by defense attorneys for Barry Croft and Adam Fox, seeking a retrial for the two men after they were convicted last month of conspiring to kidnap Governor Gretchen Whitmer.
Fox and Croft face up to life in prison following their conviction, but their attorneys argue the alleged bias shown in the case is enough to have the conviction thrown out. They filed for a retrial earlier this week in a motion that was sealed from public view. On Thursday morning, federal judge Robert Jonker ordered the release of a redacted version of the filing.
Click here to read the full, redacted motion for a retrial for Barry Croft and Adam Fox
The juror
“The presence of even a single biased juror deprives a defendant of his right to an impartial jury,” defense attorneys Joshua Blanchard and Christopher Gibbons argue in the filing.
Blanchard first notified Jonker of allegations of the juror’s bias on the second day of the trial. Jonker said he investigated the claim and questioned the juror, but didn’t find enough evidence to dismiss the juror or delay the trial.
A transcript of Jonker’s questioning of the juror was released by the court following the trial, and defense attorneys argue it shows the judge didn’t go far enough to investigate the allegations of bias.
“The seven minutes of unsworn questioning was not probing, didn’t follow up on potential discrepancies … and invited the juror to deny allegations without any risk of consequence for false statement,” the defense attorneys wrote.
The judge
In addition to the allegations about a biased juror, Fox and Croft’s attorneys also allege in their filing that Jonker showed his own bias against their clients throughout the trial.
During the retrial of Croft and Fox in August, Jonker dismissed a defense argument as “crap."
“The Court often commented on the quality of the questioning of defense counsel and the persuasiveness of the arguments it believed would flow from the questioning,” the attorneys note. “Frequently, the Court commented that the defense 'had enough] to make arguments, in a manner that cast doubt on the believability of the arguments.”
In one instance, Jonker dismissed a defense argument as “crap,” though the attorneys note they remember that comment happening when the jurors weren’t in the courtroom.
Jonker also imposed an arbitrary time limit on defense attorneys’ cross examination of Kaleb Franks, a key government witness and alleged co-conspirator who pleaded guilty to the charges.
“This time limit was imposed with virtually no notice,” the defense attorneys wrote, and Jonker made it clear in front of jurors that the limit only applied to defense attorneys, not the prosecution.
“During cross-examination of Mr. Franks, the Court impatiently interjected with the amount of time remaining for each lawyer,” the attorneys wrote. “During Croft’s examination, the Court commented, in front of the jury, to the effect that counsel could use his time in an ineffective manner if he wished.”
The quest for a retrial
The potential for a biased juror, the judge’s own bias and the time limits imposed on cross-examination all violated Fox and Croft’s constitutional right to a fair trial, their attorneys conclude.
They’ve asked Jonker for a hearing in court to make their arguments.
Prosecutors have 14 days from the initial day of the filing to respond.
Matthew Schneider, former U.S. Attorney for the Eastern District of Michigan, said efforts to overturn a jury conviction are like "catching lightning in a bottle."
"But in this case," Schneider said. "I think the defense made some good arguments."
On the issue of a potentially biased juror, Schneider said there's a well-established principle that defendants have "a right to be present at every critical stage of the prosecution."
“There is at least an argument that the defense counsel should have been present in the room when the judge was asking questions of this problematic juror," Schneider said.
I’ve argued many jury trials where the judge has been mean to me, or said things that are offensive ... that really is not the legal standard for reversing a conviction.”Matthew Schneider, former U.S. Attorney
Schneider, who now practices at Honigman Law in Detroit, said the defense objections to time constraints on cross-examination could also persuade a higher judge to overturn the case.
But, he said, the claims on Jonker's bias aren't likely to prevail.
“It’s not uncommon, and it’s not that big of a problem," Schneider said of Jonker's statements. "Because I can tell you that I’ve argued many jury trials where the judge has been mean to me, or said things that are offensive,” Schneider said. “That really is not the legal standard for reversing a conviction.”
If a retrial were granted in the case, it would set up the possibility of a third trial for Fox and Croft, who were arrested nearly two years ago on the charge of conspiring to kidnap the governor. The first trial against them resulted in a mistrial this spring, after jurors couldn’t reach an agreement on the charges. Two other codefendants – Brandon Caserta and Daniel Harris – were found not guilty by the jury.
Eight other men are also facing criminal charges in state courts over the alleged kidnapping plot. They have yet to face trial.
