'Rogue' juror in Whitmer kidnap plot case ended up being foreman, appeal says

The juror at the center of misconduct allegations that threatened to derail last year's trial of two men accused of orchestrating a plot to kidnap Gov. Gretchen Whitmer ended up staying on the jury and served as its foreman, according to a Wednesday court filing.

The revelation was included in an appeal brief filed in the 6th U.S. Circuit Court of Appeals on Wednesday by former Potterville resident Adam Fox, the convicted ringleader of the kidnapping plot who is serving a 16-year sentence at a high-security federal prison in Colorado. Fox is trying to overturn his conviction in the plot to kidnap Gov. Gretchen Whitmer by arguing, among other things, that U.S. District Judge Robert Jonker abused his discretion by failing to hold a so-called Remmer hearing to investigate if the juror was biased.

The misconduct allegations emerged one year ago at trial when defense lawyers received a tip that one juror was biased and vowed to a co-worker that the juror wanted to "hang" Fox and the other accused ringleader, Delaware trucker Barry Croft.

Few details were released last year about the juror because Jonker prohibited defense lawyers from commenting publicly and ordered the sealing of court filings that addressed juror misconduct allegations. Jonker later revealed that the juror was allowed to stay on the case because he did not appear to be manipulative and denied having a predetermined desire to convict the men.

The juror was never identified with any specificity. But in the appeal brief Wednesday, Fox's lawyer Steven Nolder wrote that "the juror suspected of being biased became the foreman of Fox’s jury."

"The district court abused its discretion by failing to afford Fox a 'constitutionally meaningful' Remmer hearing and curtailing his cross examination of one of the government’s star witnesses," Nolder wrote.

In federal court, the jury foreperson presides over the jury’s deliberations and, as part of the job, is required to “give every juror a fair opportunity to express his or her views,” according to a jury handbook published by the Administrative Office of the U.S. Courts.

The foreman in the Whitmer kidnap plot case was selected by fellow jurors.

“They’re the leader of the jury but it is hard to say whether a particular foreman had a particular influence because the jury is a black box, in a way,” Birmingham defense lawyer Wade Fink told The Detroit News. “We really don’t know what goes on inside a jury room, and we’re not supposed to.

“But if it’s true that there was a bias of some kind, that would be compounded by the fact that not only is it a voting juror but they are in a position where they may be able to lead the discussions, which could convince or persuade others,” Fink added.

The juror misconduct allegation surfaced after the second day of testimony last year.

The judge and his staff investigated the juror allegation and questioned the juror in private before deciding to let the juror stay on the case. The juror, who has not been identified publicly by name, gender or juror number, did not appear to be manipulative and denied having a predetermined desire to convict the men, Jonker wrote in a court filing.

The judge briefed prosecutors and defense lawyers during a private hearing in his chambers and away from public view. Jonker said he would question the juror privately, which sparked objections from defense lawyers at the time.

The judge's investigation did not uncover dishonesty by the juror, who denied having a bias. Jonker determined the juror's demeanor and behavior were credible.

"The issue on appeal is whether the judge should have allowed the juror to serve in the first place, so the fact that the juror became the foreperson is not as significant," former Detroit U.S. Attorney Matthew Schneider wrote in a text message to The News. "We're likely to see the court of appeals closely scrutinizing the judge and the questions he asked the juror."

In Croft’s appeal brief that was filed Wednesday, defense lawyer Timothy Sweeney said the judge failed to seriously consider "credible allegations" of juror misconduct. The judge did not question the jury foreman under oath, asked leading questions and did not let the defendants or their attorneys attend the meeting.

“The court thereby failed to afford Croft any meaningful opportunity to demonstrate jury bias, mandating a new trial,” Sweeney wrote.

After Croft was convicted, he sought a new trial and presented an affidavit from a private investigator with additional evidence to support the juror misconduct allegations.

The evidence included that the jury foreman’s co-worker heard about the comments and that the foreman’s mother worked at the same company in an important position.

“…employees are afraid to get involved for fear of their jobs,” according to the appeal brief.

“The court refused any hearing and denied a new trial,” Sweeney wrote.

Croft was sentenced to nearly 20 years in federal prison.

The juror also reiterated that he or she could set aside preconceived views of the defendants and decide the case based on evidence, the judge wrote.

"The subject juror’s behavior during trial buttresses this conclusion," Jonker wrote. "Interactions with other jurors, to the extent court personnel can observe it, evince no hushed whispers or … 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."

Trial judges have wide discretion in handling juror misconduct allegations so it is difficult to win an appeal on that basis, Fink said.

“It is a very steep hill to climb,” Fink said. “You have to show the misconduct occurred, and you have to prove there was a bias and that the judge somehow abused their discretion. It is very difficult to reverse” a conviction.

In the court filing Wednesday, Fox's appellate lawyer faulted Jonker for failing to hold a Remmer hearing.

"There was a credible allegation of juror bias and contact with external parties in need of investigation," Nolder wrote. "Under this court’s jurisprudence, Fox had the burden of proving bias. Because the district court failed to afford Fox a constitutionally meaningful opportunity to develop the record on juror bias, this case must be remanded for a new trial."

rsnell@detroitnews.com

Twitter: @robertsnellnews