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Outcome of first kidnapping trial can't be used as evidence in second trial, judge rules

Adam Fox (left) was “basically homeless” and was “trying to be cool,” according to his attorney, Christopher Gibbons (right).
Carole Kabrin
For Michigan Radio
Adam Fox (left), and his attorney Christopher Gibbons, in a sketch from the first trial

Another federal trial is scheduled to begin in two weeks for two men accused of conspiring to kidnap Governor Gretchen Whitmer.

But jurors won’t be told much about their previous trial. In a final pretrial hearing Tuesday afternoon in Grand Rapids judge Robert Jonker ruled on what will and won’t be allowed to be presented as evidence in the upcoming trial. One thing that jurors won’t hear, Jonker said, is that two other men were found not guilty of the kidnapping conspiracy during the previous trial in the fall.

Adam Fox and Barry Croft are facing trial for the second time, after a jury deadlocked on their charges in the spring. Two other men - Daniel Harris and Brandon Caserta - were both acquitted.

But the outcome of the first trial should not be part of deliberations for jurors in the second trial, Jonker told attorneys Tuesday. In particular, evidence of the acquitals for Harris and Caserta can’t be introduced as evidence in the trial, though Jonker said jurors may ultimately hear about it.

Defense attorneys for both Fox and Croft tried to argue that jurors may already come to the case knowing about the prior case.

“The outcome of the first trial was somewhat unusual and it did gather a lot of press,” said Christopher Gibbons, an attorney for Fox.

“I think it needs to come out,” argued Joshua Blanchard, Barry Croft’s attorney.

Jonker acknowledged that some of the potential jurors in the case could have been following it closely, and could “blurt out” the outcome during the jury selection process - thus informing any other potential jurors about the outcome. But, he said, that didn’t mean the acquittals could be treated as evidence by attorneys in the trial.

Another complicating factor could be that Caserta and Harris could be called as witnesses in the new trial, in which case jurors would likely find out about their acquittal. But Jonker said it’s also possible they would invoke their fifth amendment right to not self-incriminate. In that case, jurors wouldn’t hear from them at all.

Jonker also ruled on other bits of possible evidence - including texts from a confidential informant in the case to his FBI handler, and evidence that one of the FBI agents in the case was trying to launch his own business on the side. Jonker ruled that, as in the previous case, most of that information would be inadmissible in the new trial.

A total of 14 men were charged over the alleged plot to kidnap Whitmer in 2020. Of those 14, six were charged in federal court. Two of them pleaded guilty, two were found not guilty and two are being retried. Eight other men face charges in state court, and have yet to face trial.

Jury selection for the trial against Croft and Fox is scheduled to begin August 9.

Dustin Dwyer reports enterprise and long-form stories from Michigan Public’s West Michigan bureau. He was a fellow in the class of 2018 at the Nieman Foundation for Journalism at Harvard. He’s been with Michigan Public since 2004, when he started as an intern in the newsroom.
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