A retrial starts Tuesday of two men accused of conspiring to kidnap Michigan Gov. Gretchen Whitmer over her efforts to rein in the COVID-19 pandemic. A Grand Rapids, Mi., jury in April failed to reach unanimous verdicts for Adam Fox, the alleged ringleader of the conspiracy plot, and Barry Croft, while acquitting Brandon Caserta and Daniel Harris. The result was a blow to federal efforts to prosecute potential domestic terrorists, though it is unclear what made the jury reject the government’s argument, reports the Wall Street Journal. Two men who pleaded guilty in the same case testified against Fox and Croft. Prosecutors “need to assess, and probably have, whether it was a bad case or a bad jury last time around,” said University of Michigan law Prof. Barbara McQuade, former U.S. Attorney for the Eastern District of Michigan.
Defense attorneys, who argue the men were entrapped by a charismatic informant, could have new tools in their arsenal this time. “It’s often harder to retry a case because the defense has the transcripts from the first time around,“ McQuade said. “And a skilled defense attorney can make a lot of hay out of really minor inconsistencies.” Matthew Schneider, another former U.S. Attorney for the Eastern District of Michigan, said the government’s job could be simpler given there are only two defendants, not four. The government’s case “is going to be much easier to explain,” he said. He said prosecutors may want to spend more time trying to weed out biases among jurors, given the case's political nature. “The big question is, did the FBI arrest these defendants too quickly, before they gathered enough evidence,” he said.