The federal trial in the plot to kidnap Governor Gretchen Whitmer starts Tuesday morning, with jury selection. Four men will stand trial: Daniel Harris. Barry Croft, Adam Fox and Brandon Caserta, with two other men having agreed to plea deals in exchange for testimony in the trial.
Jury selection is going to be very difficult. The court is tasked with finding a dozen people that don’t already have a perceived bias in a trial that has been covered extensively for a year and a half and is centered on a very polarizing political figure.
“I would expect the judge to allow some questioning of the potential jurors on the governor,” said Tonya Krause-Phelan, tenured professor at the WMU Cooley Law School. “I would expect the judge to allow, in a limited way, maybe their feelings about the government.”
The jurors would also have to commit to a potential six week trial.
“If it’s going to prove to be a huge imposition for them, then that might affect their attitude about the case,” said Krause-Phelan. “Especially if they are perceiving one side is carrying out the case too long.”
The court is expected to go through more than 100 potential jurors. We don’t know much yet of what they will be hearing once selected but we do know two of the witnesses who will testify, Ty Garbin and Kaleb Franks, men charged in the case who have already taken a plea deal.
“Conspiracy, by definition, is when a group of people come together and agreed they were going to carry out a crime and so the people within that circle are the ones with the information,” said Krause-Phelan.
Their testimony will give jurors an inside look into the plot. Krause-Phelan has an extensive history as a criminal defense lawyer. She said from there the defense has an uphill battle to discredit them.
“You’ll hear the prosecutor say things like, ‘Yes he may be a criminal and he may be part of the plan but that’s exactly why he knows this information,'” said Krause-Phelan. “And you can rely on it.”
The defense is saying their clients were entrapped by the FBI to put this plot together. In a case like this, several undercover agents and informants were used and the defense says they were the ones who sparked the idea to kidnap Whitmer.
“The entrapment defense is an interesting defense,” said Krause-Phelan.
She said entrapment is their strongest shot to win, but possibly the riskiest.
“The defendant for, all intents and purposes, will have to admit they committed the crime,” said Krause-Phelan. “Because the entrapment defense is saying, ‘Yeah I did it but the government made me do it.'”
The defendants would have to prove that the government came up with the idea and forced them to carry it out. The government has to prove the defendants got there on their own.
“In other words, he would have committed this crime without any assistance or encouragement from the government,” said Krause-Phelan.
Both Franks and Garbin, in their sentencing agreements, have said the group was not forced by agents that the suspects were going to do this no matter what.
“The credibility of those cooperating witnesses and the undercover agents is going to become critical in how that defense is presented,” said Krause-Phelan. “And how the jury interprets those facts.”
That will be the key, getting the jury to lean one way or the other.
“It’s really going to be critical how those individuals testify,” said Krause-Phelan. “How the jury perceives their testimony.”
Jury selection begins Tuesday morning at 8:30 and the trial could last as long as six weeks.
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