Whitmer kidnap plot retrial jury selection starts: It could make or break case.

• Two men accused of leading a plot to kidnap Gov. Gretchen Whitmer are being retried
• The jury includes three people of color after an all-white jury ended in a mistrial
• Legal experts say prosecutors need to do a better job with jury selection this time

Aug. 23: Two ringleaders convicted in Gretchen Whitmer kidnapping plot
Aug. 10: Whitmer kidnapping retrial, take 2: Insurrectionists or ‘boneheads’?

Opening arguments are set to begin Wednesday for the retrial of two men accused of leading a plot to kidnap Gov. Gretchen Whitmer, after a more diverse jury was seated Tuesday afternoon. 

Two men, Adam Fox, 38, of Wyoming Michigan, and Barry Croft, 46, of Delaware, face up to life in prison if convicted in the high-stakes case that initially ended in a hung jury in April.

U.S. District Judge Robert Jonker and attorneys spent much of Tuesday in a Grand Rapids courtroom questioning potential jurors before seating 10 women and eight men. Unlike the previous jury, which was all white, a Hispanic man and two Black women are on this jury. 

Related: Jury: Two not guilty of Whitmer kidnapping; mistrial for other two

Experts say jury selection is crucial to the government’s case, and Jonker quizzed potential jurors about their livelihoods, biases, politics, COVID-19 vaccine mandates, news consumption and trust of the government.

When one potential juror, a female hairdresser, told Jonker she didn’t trust politicians, he responded that “may actually be one of the more popular opinions these days.”

Other answers from potential jurors reflected the polarization that seems to be gripping the nation.

A stay-at-home father said he’s uncertain he can put his biases aside  because he’s related to a county clerk who has received threats related to elections.  A gunsmith said he owns automatic rifles and is a strong supporter of the Second Amendment but can decide fairly in the case. 

Jonker declared a mistrial in the charges against Fox and Croft on April 8 after jurors were deadlocked and acquitted two other co-defendants, Daniel Harris of Lake Orion and Brandon Caserta of Canton Township.

The nearly four-week trial featured allegations the four militia members plotted to kidnap Whitmer in 2020 and put her on trial over their frustrations with her COVID-19 orders. It relied on government informants that the jury of six men and six women did not find credible.

Fox and Croft again face charges of conspiring to kidnap the Democratic governor and one count of conspiracy to use a weapon of mass destruction. 

Prosecutors are “going to have to do a better job in picking this jury.” Michael Rajat, a defense attorney for the federal government’s last major domestic terrorism case in Michigan, told Bridge Michigan. 

“They have to do a better job finding out what their attitude towards the government and governor is,” Rajat said. “Do they distrust the government? Because otherwise, they’re going to end up with another hung jury.”

Rataj represented members of the Hutaree religious militia who were accused of plotting to kill police officers to spark a revolution against the government.  A judge acquitted seven defendants of the most serious charges in 2012, but three other members pleaded guilty to a weapons charge.

The identity of former Whitmer jurors is private, but all are white and many are from northern Michigan and at least four owned guns. 

During the April trial, prosecutors presented hundreds of hours of recordings from informants, videos and testimony from two men who had already pleaded guilty in the case. 

The government contended the men plotted to kidnap her from her vacation home in northern Michigan and blow up a bridge to delay a police response.

But defense attorneys say the men had no intention of carrying out any plot and instead were egged on by FBI informants. 

It’s much harder for the prosecution to win a case if it is retried, said former federal prosecutor Mark Chutkow, so “the jury selection is key.”

“Particularly given the overlay of all the polarization and the fact that there has been a lot of publicity about this case,” Chutkow said. 

Chutkow, who was a prosecutor in the corruption trial of former Detroit Mayor Kwame Kilpatrick, said both sides are going to have a hard time stopping politics from infecting the jury. 

He said prosecutors are seeking “middle of the road” jurors, while defense attorneys will seek one or two jurors who won’t agree to work with the majority, which would result in “another hung jury and a mistrial.”