GRAND RAPIDS, Mich. — Documents unsealed by the judge in the retrial of the men charged with plotting to kidnap Michigan Governor Gretchen Whitmer reveal that a juror was suspected and subsequently cleared of possible misconduct as the trial was just beginning.
It came the same day a jury in the second Governor Whitmer kidnapping plot found Barry Croft and Adam Fox guilty of conspiracy to kidnap and conspiracy to use a weapon of mass destruction.
Joshua Blanchard, defense attorney for Barry Croft, first alerted Judge Robert Jonker that he had received a report of possible juror misconduct on the evening of August 10, the first day of testimony in the trial.
Blanchard told the judge he felt the matter should be looked into in a "non-public way" in an effort to "limit the risk of publicity that could affect the fairness of the process as it unfolds."
The next day, defense attorneys and prosecutors were called into the judge's chambers to discuss the matter.
Blanchard explained that his office received the report from an alleged co-worker of the juror in question.
According to the tip received, at some point before the trial, the juror told a colleague that they had received a juror summons, saying they hoped to be picked for the upcoming kidnap plot trial.
The recently unsealed document explains the report alleged that, "the subject Juror expressed a strong opinion about the Defendants’ guilt and indicated that if chosen, he or she would make sure that the Defendants were found guilty."
After the meeting, Judge Jonker decided to proceed with the trial as planned.
"It would have needlessly wasted the time of the jury, the witnesses, and the parties to delay trial under the circumstances," the document says.
The court's jury clerk then went about looking into the report.
According to the document, the clerk called the person who made the report to Blanchard, and found that the person had not talked directly to the juror in question.
"The information the reporting coworker provided had come secondhand through another coworker of both the reporting individual and the subject Juror. The reporting coworker had no direct contact with the subject Juror about the Juror’s feelings about this case, jury service, or anything about the instant matter," the document says.
"He did not even know for sure if the subject Juror was serving on this case."
The clerk apparently tried to speak with the co-worker who had spoken directly to the juror, but "that coworker had reportedly expressed a desire not to speak or otherwise be identified, and the person who did call refused to identify the person."
Defense attorneys and prosecutors were notified of what the jury clerk had learned.
Judge Jonker then decided that he would have a conversation with the juror in private, away from attorneys or prosecutors. Jonker agreed to give both sides a transcript of his conversation.
The government agreed to this approach, while Blanchard was opposed.
Blanchard also said that he was concerned the juror was "somehow manipulating the jury during trial to ensure an allegedly desired outcome."
He filed a brief with the court later that day further expressing his objection to Judge Jonker's approach in handling the juror.
While the brief was initially filed on the court's public docket, Judge Jonker quickly sealed it's contents.
Judge Jonker found after a conversation with the juror that they would be able to continue to serve, and deliver an impartial verdict.
He wrote, "Interactions with other jurors, to the extent court personnel can observe it, evince no hushed whispers or other indicia of a desire to manipulate. And the Juror’s behavior in the jury box is entirely inconsistent with someone who has a made a predetermined decision to find the defendants guilty.
"The Juror has consistently been attentive and engaged during both the government’s presentations and each defendant’s cross."
Judge Jonker decided to unseal documents pertaining to the potential juror misconduct just hours after the jury returned guilty verdicts on all of the counts against Fox and Croft.
When Blanchard was asked about the issue outside the courthouse after the verdicts, he said, "I believe that justice should happen in public."
How Will this Play into a Defense Appeal?
FOX 17 spoke with former judge, and current law professor at WMU-Cooley, Jeffrey D. Swartz, about how this issue could play into a possible appeal.
“There's no acceptance or denying the right to an appeal, everybody's entitled to one appeal,” Swartz said.
"First of all, the final judgment has to be entered. The verdict is not a final judgment."
He explained that we will likely see post-verdict motions filed on behalf of the defense, prior to Fox and Croft being sentenced in December.
Fox is set to be sentenced on December 12, while Croft will be sentenced on December 28.
Before that happens, an officer of the court will put together pre-sentence reports for each man.
"Then the court will have to determine, after a response from the defense, what sentence will be imposed," Swartz explained.
"Whether it will impose a guideline sentence, whether it will deviate upwards, whether it will deviate downwards, and it will have to justify that by way of a sentencing order, and then a judgment will be entered."
Defense attorneys cannot begin the process of filing an appeal until the court accepts a judgment.
"Once that judgment is entered, then there's a specific number of days for them to file an appeal, both on the sentence and on the verdict, and any ruling on post judgment motions," Swartz said.
"They (the defense) will have to file a brief in support of whatever error they claim has been committed by the court, then the government will have to respond, then there will be a rebuttal brief that will be filed, and then after that, the Court will hold oral argument and there will be a decision."
There is now specific timeline for how long this could all take.
In regards to the potential juror misconduct, Swartz said, "it could be brought up as an error if they tried to excuse this juror for cause."
"But, it won't get them a dismissal. The most that it would get them is another shot at a verdict."
