Men convicted in Whitmer kidnapping plot allege juror misconduct, biased treatment from judge

The two men recently convicted of plotting to kidnap Michigan Gov. Gretchen Whitmer and charge her with treason have requested a new trial. They claim that the judge presiding over their case demonstrated prejudicial bias against them on more than one occasion and that one of the twelve jurors had bragged to a co-worker in the early stages of a trial that he or she had already thought they were guilty and wanted them to "hang."

On Thursday, Barry Croft Jr., 46, and Adam Fox, 38, petitioned the court for a hearing on these issues, hoping that evidence presented during the hearing would convince the court to grant them a new trial.

During the trial, the court filing alleges, Judge Robert Jonker, a judge in the U.S. District Court for the Western District of Michigan, had limited the time defense attorneys had to cross-examine a key witness, called some of the evidence offered by the defense "crap," and permitted a juror who may have violated the judge's orders in two separate instances to remain on the jury panel.

"Throughout the trial," the defense attorneys Josh Blanchard and Christopher Gibbons wrote, "the court repeatedly interjected with commentary regarding the quality of the defense evidence and questioning, the time it was taking defense counsel to complete questioning of witnesses, made sarcastic remarks about the trial continuing until Thanksgiving, referred to defense counsel’s questioning as 'crap,' and made other remarks that the court itself has described as 'dyspeptic.'"

Jonker limited the defense to 50 minutes of cross-examination time against Kaleb Franks, a former co-defendant who took a plea deal and began cooperating with the prosecution. No such time restrictions were placed on the prosecution, either with Franks or with any other witness in the trial.

Throughout their cross-examination of Franks, Blanchard and Gibbons claim in the filing that Jonker "impatiently interjected with the amount of time remaining for each lawyer" and that he made a snide remark in open court that the defense's line of questioning against Franks had been "ineffective."

In addition to Jonker's supposedly prejudicial behavior from the bench, the defense alleges that one of the jurors deliberately disobeyed Jonker's orders and discussed the case with a co-worker and with a family member.

According to the defense, the juror in question had contacted a co-worker in the early stages of the trial, blustering that he or she "intended to ‘hang’ the defendants if (the juror) was selected."

Though that particular co-worker did not cooperate with defense investigator Gary Gaudard, a second co-worker not only identified the name of the juror and the other co-worker but also corroborated the story that the juror had talked with the other co-worker "about finding them guilty, no matter what," the defense wrote.

The defense also alleges that the juror, who has not been identified in any way, contacted a relative to announce that the jury had come to a decision, even though the verdict had not yet been read in court. Jonker had explicitly instructed the jury not to discuss the case or the status of deliberations with anyone outside the jury panel.

Jonker met with the juror alone, without attorneys for either side present. During what the defense has characterized as "seven minutes of unsworn questioning," Jonker discussed the allegations with the juror and determined that the juror was not biased and had harbored no preconceived notions about guilt prior to the trial. Jonker also refused to compel the co-workers to testify in an evidentiary hearing. The defense hopes the court will reconsider that decision.

Though a hung jury could not make a determination back in April about their participation in the Whitmer kidnapping plot, Croft and Fox were convicted by a new jury on August 23. They were found guilty of conspiracy to kidnap and conspiracy to use a weapon of mass destruction and scheduled to be sentenced sometime in December. They face the possibility of life in prison.