GRAND RAPIDS, Mich. — The verdict has been made against Adam Fox and Barry Croft, but defense attorneys say it was anything but fair.
In federal court documents attorneys for the men are claiming jury misconduct and judicial bias after reports surfaced that a juror's coworker knew of their intention to find the pair guilty no matter the evidence presented.
Those allegations, now the basis for their appeal.
Though redacted for personal information, we know the coworker —known as Person #1 in the motion— alleged that juror said they were "hoping to get on the Whitmer Kidnapping trial, and intended to “hang” the defendants if [juror] was selected." That juror, also accused of contacting a family member about deliberations and the verdict before it was made public in court.
Person #1 went on to give a full name and physical description which matched the juror in question, according to the court documents.
Croft's and Fox's attorneys say the information was made known on the evening of August 10th, however the Court initially refused to address the issue until the end of the hearing held on August 11th. When the attorneys objected, the Court agreed to conduct a hearing— but only if it could be completed by 8:30 the morning of the trial.
Defense says they were not given the time to properly make a record of the alleged misconduct and the Court refused to question the juror or rest of the jury, instead saying they would "deal with the issue later" before ordering everyone back to the trial.
At this time Person #1 is refusing to give any further information— including the identity of the person who heard the information first-hand. The motion says the Court denied a Remmer Hearing— a hearing to determine juror influence— where that information could've been compelled from Person #1.
Instead, documents show the Court then performed an ex parte examination of the juror on August 12th, and allege the Court's questioning lead the juror to deny the accusations.
It's not like I have that on tape. It's not like I have anybody saying that under oath, but we have information that came to the Court that suggests you made statements like that as recently as Monday, which was before you became a juror, in connection with your place of work.
So I can see the puzzled look on your face, and so the first question is, do you remember making statements like that at any time?
Defense say the questioning was not under oath, didn't follow up on possible discrepancies, and "invited the juror to deny allegations without any risk of consequence for false statement."
It was while investigators were following a lead from another coworker (Person #2), leading them to try questioning Person #3— the alleged first-hand witness— that the jury reached its verdict on August 23rd.
The documents show all three Persons work with the juror and a family member of the juror. They allege that family member was getting intimate details from the juror including the status of deliberations, and an announcement when the verdict had been reached before it was read in court.
Defense says these communications are in clear violation of Court instructions forbidding jurors from speaking about the case.
The defense for Croft and Fox also allege the Court used its position to express opinions on evidence submitted by the defense, often saying counsel was "wasting time", "being unnecessarily repetitive", and the Court "[demeaned] the performance of defense counsel".
According to the motion, an opinion was submitted on August 12th from the Courts saying they would enforce time-limits on cross examination "unless the defendants can start focusing on something that really matters". That opinion was later revoked and another rule imposed: Bertlesman Rule— a ruling made in 1986 which discusses the reasonable time limits on trials. After that weekend the rule was revoked, though the defense argues this was after they had been denied ample time to question a key witness fully.
The motion states the defendants have the right to a fair trial but were not given that chance through the actions of a juror and the Court itself.
The Courts have 14 days to respond to the motion.