GRAND RAPIDS, Mich. (CN) — A new trial for two of the men accused of plotting to kidnap Democratic Michigan Governor Gretchen Whitmer began with opening statements Wednesday following a mistrial in April.
Assistant U.S. Attorney Christopher M. O’Connor used his time to paint Adam Fox of Wyoming, Michigan, and Barry Croft Jr. of Bear, Delaware, as two men determined to trigger a second American revolution.
“This wasn’t just talk,” he said. “These guys were leaders, not followers.”
He added, “Adam Fox accepted Barry Croft’s call to action.”
The defendants were said to have been furious with Whitmer over Covid-19 restrictions and vowed to try her for treason. But O’Connor said the case started long before the restrictions were imposed in 2020, as police were watching for several years due to violent rhetoric from the men that dismissed voting as a means of change and embraced violence.
“In the eyes of my God, I will die a fucking saint covered in blood,” O’Connor recited from a transcript of a Fox recording.
O’Connor referenced another recording from 2019 in which Fox is heard to ask, referring to an anti-government, pro-gun movement, “Who else is ready for the boogaloo?” He said Fox posted a picture of himself in January 2020 showing off a pair of flex-cuffs.
Fox is accused of taking great pains to keep the group's plans private, including confiscating cellphones before secret meetings.
O’Connor urged the jury to consider those actions as more than just “silly talk” and classify the cellphone ban as operational security used to hide illegal activity.
Croft is accused of constructing homemade bombs that were filled with pennies for shrapnel.
When O’Connor played a recording of Croft talking about planning a “precise grab on that fucking governor,” the prosecutor surmised that there was no doubt what they wanted to do.
He told the jury the governor does not have to prove the men kidnapped the governor and stressed that if the defendants were already willing to do the crime, it’s not considered entrapment by undercover agents who recorded them.
“A conspiracy is simply an agreement to commit an illegal act…what you need to decide is did Adam Fox and Barry Croft agree with each other…to kidnap the governor,” ’Connor said.
In April, alleged co-conspirator Daniel Harris of Lake Orion was found not guilty on all four charges against him and fellow defendant Brandon Caserta of Canton Township was acquitted of a single charge of kidnapping conspiracy.
The first trial finished quicker than expected and the jury deliberated for a week before they reached their verdict.
However, jurors could not come to a consensus about Fox and Croft. Each of the men could have faced up to life in prison on kidnapping conspiracy charges and conspiracy to use a weapon of mass destruction.
“After using the suggestions of the court, we’re still unable to reach a unanimous decision on several counts,” the jury wrote in a note to Chief U.S. District Judge Robert Jonker.
Christopher Gibbons of Gibbons & Boer, representing Fox, began his opening statement Wednesday with echoes of his arguments in the first trial, when he said that Fox was simply a blowhard without a criminal record who was noticed by the FBI on Facebook for his views.
“No plan. No conspiracy. No crime. Not guilty,” he said.
Gibbons said the defendants would not have reached a conspiracy on their own.
“The FBI was willing to go the next step and maybe start doing it for them,” he accused.
Gibbons promised that the evidence would show no laws were broken. He conceded Fox was not the model citizen, but he’s “not the worst of us.”
“It’s not a crime to not like your governor. It’s not a crime to be a big talker. Adam doesn’t do anything but talk,” he concluded.
Croft’s attorney Joshua Blanchard said that Croft was an outsider who was rarely included.
“It isn’t a crime in this country to say mean things, even about the FBI,” he said.
Blanchard said the FBI was looking for an opportunity to charge Croft with a crime since they were aware of his beliefs. He accused government actors and snitches of building the case against his client with false information.
The attorney made a point to mention Croft has spent 672 days waiting in jail, away from his family.
“Waiting for you to tell the FBI that the truth matters,” he said.
In April, Assistant U.S. Attorney Nils R. Kessler told the previous jury that Fox led the group because he felt humiliated living in a basement and wanted to blame Whitmer. Kessler explained that Fox’s lust for weapons of mass destruction had grown so hot that the FBI was forced to step in.
Among the testimony from the first trial, jurors heard from several FBI agents as well as from one of the defendants himself.
FBI agent Timothy Bates, who was known as “Red” while undercover, testified about his contact with the accused and how he convinced them he had access to bomb-making materials. Bates said the explosives were coveted by Fox, who allegedly wanted to blow up a bridge near the governor’s home to slow the police response.
Ty Garbin, who pleaded guilty in January 2021 and was sentenced to more than six years in prison, agreed to testify against the four men on trial. He told the jurors what the “boogaloo” group represented.
“The boogaloo is a movement … the foundation of it is basically we need a second Civil War, another revolution,” Garbin explained.
In his opening statement on March 9, Assistant U.S. Attorney Jonathan Roth said the group was mad over the coronavirus lockdown implemented by Whitmer, a Democrat, but their anger was already simmering against politicians in general.
The sixth defendant, Franks, pleaded guilty to kidnapping conspiracy during a hearing on Feb. 9.
The retrial is expected to last about a week.
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