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Judge to jury: Okay to convict defendants in Whitmer kidnapping case even if it was 'impossible for them to successfully complete crime'

"You may find them guilty, even if it was impossible for them to successfully complete the crime," Judge Jonker instructed told the jury.

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As the retrial for two men accused of plotting to kidnap Michigan Governor Gretchen Whitmer takes place, the judge handling the case on Friday offered his own opinion to the jury –  that even if the alleged plan was bad or impossible to carry out, it's fine to convict.

While the prosecution is claiming that Adam Fox and Barry Croft Jr were armed, eager and willing to kidnap the governor, the defendants argue that the FBI orchestrated the plan by attempting to radicalize the defendants, enticing them with money, drugs, and women. According to them, they were not eager to abduct Whitmer, and if not for rogue FBI agents providing them with major components of the plan and thousands of dollars, they would not be there. The pair were charged with the crime of conspiracy, as the kidnapping never took place.

At the request of the defense, U.S. District Judge Robert Jonker gave his definition of what "entrapment" means to the jury. "The crucial question in entrapment cases is whether the government persuaded a defendant who was not already willing to commit the crime to go ahead and commit it," Jonker told jurors, who are set to begin deliberations next week.

"You may find them guilty, even if it was impossible for them to successfully complete the crime," Judge Jonker instructed.

Fox and Croft have consistently maintained they were set up by undercover FBI agents and informants. The accused pair allege it was the agents who engineered the kidnapping plot and maintained the operation. The prosecution says the defendants never showed reluctance and discussed snatching the governor long before the FBI got involved.

In October 2020, 13 people were arrested in connection with an alleged plot to storm the state Capitol and kidnap Whitmer. Four of the men who were charged with kidnapping conspiracy went to trial in April. Defendants Daniel Harris and Brandon Caserta were found not guilty while the jury was deadlocked on Croft and Fox.

According to the judge, it's not entrapment even if an FBI agent persuades someone to commit a crime and it's not entrapment if that person was already willing.

"It is sometimes necessary for a government agent to pretend to be a criminal," Jonker told the jury. "Did they show reluctance? And if they did, were they overcome by persuasion? If yes, how much persuasion did the government use?"

To prove entrapment, Fox and Croft must prove that the plan and momentum for the crime was introduced by the FBI, and that they were not already willing or predisposed to commit the crime.

In the trial, evidence revealed thousands of dollars were offered to Fox to buy guns and ammunition. On five separate occasions, Fox, who was so poor that he did not even have running water in his basement, turned down the money.

In July of 2020, a few months before the suspects were arrested, it was suggested to Fox that he and others fire rounds into the Whitmer's mansion as well as at her cottage. The alleged plotters, including Fox, refused.

The FBI agents and informants involved in the plot regularly provided marijuana and money to the suspects, getting high with them before talking about the plan. A female FBI agent often brought Croft to militia training sessions and slept in the same hotel room bed on those occasions in an apparent attempt to entice him .

Judge Jonker repeatedly interrupted the defense lawyers during their cross-examination of the government witnesses, cut short their questioning, scolded them for what he thought was redundant and irrelevant questioning, and, by the end of the trial, imposed a time limit: The defense could only take as long with witnesses as the prosecution did, reported Detroit Free Press.

At one point during the trial, he told the defense lawyer "Start focusing on what the important issues are, before this trial stretches into Thanksgiving." This was said in the presence of the jury, but Jonker told them to decide the case only on the facts, not on anything he did or said.

"Nothing I have done was meant to influence your decision about the facts in any way," Jonker said. "Nothing else is evidence," Jonker said. "Not the lawyers' statements or arguments, nor ... my legal rulings."

The defendants argued that they were merely frustrated with Covid restrictions and talked a tough game, but they would have never gotten as far along in any plot if it weren't for overzealous FBI informants and undercover agents. Any alleged kidnapping plans discussed by the defendants were high-talk by men engaged in fantasy play, according to their lawyers. Their "high-talk" included fantasies such as abandoning Whitmer in a boat on Lake Michigan, or whisking her away in a helicopter.

According to Jonker, people "simply meeting from time to time" is not enough to establish a criminal agreement. This is what the defense lawyers repeatedly stressed during the trial — that Croft and Fox were merely a group of big-talking stoners who liked to get high while hanging around a campfire to vent about the government.

The jury will hear closing arguments from both sides and begin deliberations on Monday. If found guilty, both face up to life in prison.

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