Whitmer kidnap juror leaked deliberations during trial, defense says

Ringleaders of the plot to kidnap Gov. Gretchen Whitmer deserve a new trial because a federal judge was openly hostile toward the defense, according to a court filing unsealed Thursday that revealed one juror leaked details about deliberations before guilty verdicts were announced last month.

U.S. District Judge Robert Jonker imposed an "arbitrary" time limit on defense cross examination and referred to defense questions as "crap," according to the defense's request for a new trial. The defense lawyers also revealed that one juror violated one of the judge's orders by texting a relative during deliberations that a verdict had been reached and would be revealed momentarily.

The allegations are the latest salvos in a request for a new trial and for an evidentiary hearing to compel testimony that could shed light on claims of juror misconduct. The misconduct allegations emerged during last month's trial when defense lawyers received a tip that one juror was biased and vowed to a co-worker that they wanted to "hang" the ringleaders, Potterville resident Adam Fox and Delaware trucker Barry Croft.

The allegations and quest for a new trial threaten to upend one of the largest domestic terrorism cases in a generation. Fox and Croft were convicted of kidnapping conspiracy and conspiracy to use a weapon of mass destruction and are awaiting possible sentences of up to life in prison. Their first trial ended in a mistrial in April.

Defense lawyers learned about the purported jury leak late last month when their investigator questioned one of the juror's co-workers.

"The known communication ... was in clear violation of the court’s instruction forbidding jurors speaking to anyone else about the case or disclosing the status of the voting," defense lawyers Joshua Blanchard and Christopher Gibbons wrote in the unsealed filing. They represent Croft and Fox, respectively

The judge and his staff investigated the juror allegation and questioned the juror in private before deciding to let the juror stay on the case. The juror, who has not been identified publicly by name, gender or juror number, did not appear to be manipulative and denied having a predetermined desire to convict, Jonker wrote in a court filing.

The judge's jury clerk learned the co-worker had not spoken directly with the juror or heard anything directly.

"Rather the information the reporting coworker provided had come secondhand through another coworker...," Jonker wrote.

The coworker, however, would not reveal the name of the colleague who heard the juror's comment firsthand.

The filing is redacted in multiple spots to remove any identifying information about the juror, but describes how defense lawyers learned of the purported jury leak.

On Aug. 23, defense investigator Gary Gaudard was trying to corroborate the initial tip about the juror wanting to “hang” Fox and Croft. Gaudard and another investigator arrived at the juror’s office, hoping to talk to coworkers.

A second co-worker identified the juror by name and told Gaudard the juror “had been saying things about being on the Whitmer jury…,” according to the investigator’s memo unsealed Thursday.

The second co-worker said that (the juror) was talking about finding them guilty no matter what,” Gaudard wrote.

Later that day, after jurors announced the guilty verdicts, the second co-worker approached Gaudard in the office parking lot. The co-worker recounted a conversation they had with the juror’s relative.

The relative “announced that (the juror) had just texted (the relative)…that they had a verdict and that they were waiting to announce it,” Gaudard wrote. “This was prior to the reading of the verdict in the courtroom.”

The co-worker also helped identify the colleague who had heard firsthand from the juror about a desire to "hang" Fox and Croft, according to the court filing.

The defense investigator contacted that juror but they refused to talk.

Jonker has the power to compel testimony from the juror's coworkers, but he has failed to do so, defense lawyers wrote. They want Jonker to hold such a hearing in  light of the new information.

Instead, Jonker held a private meeting with the juror and excluded defense lawyers and prosecutors, according to the filing. Jonker later released a transcript of his questioning of the juror.

"The seven minutes of unsworn questioning was not probing, didn’t follow up on potential discrepancies from voir dire testimony, and invited the juror to deny allegations without any risk of consequence for false statement," defense lawyers wrote.

The judge refused to hold a hearing to compel testimony from the juror's co-worker.

"Throughout the trial, 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,'" the lawyers wrote.

rsnell@detroitnews.com

Twitter: @robertsnellnews