Those Whitmer kidnapping defendants and proving entrapment
Commenter “Bauxite” writes in the Whitmer entrapment thread:
If the facts show that the feds sought out these defendants because they were weak and vulnerable, that will increase my sympathy for them. They will still have a very tough task proving entrapment as a defense.
Agreed, because – as I’ve written before – despite the presumption of innocence in criminal cases, entrapment is an affirmative defense that must be proven by defendants, and which requires a high burden be met: not only that the government introduced the idea for the crime, but also that the defendant was not already willing or predisposed to commit the crime. It seems very difficult to prove that latter part of the standard, and therefore the situation is ripe for government abuse.
As I also have written before, long ago when I was in law school, entrapment disturbed me very much. It was clear that the law had been used to frame and abuse people, and at the time the left agreed because back then it was mainly the left who’d been the targets in recent years.
Bauxite continues:
If a private citizen or group sought out weak and vulnerable accomplices for a criminal enterprise in the same way that the FBI did here, the accomplices would have behaved in exactly the same way as these defendants, yet there would be no entrapment defense for them. I doubt that there would be any serious argument that these hypothetical private accomplices should be acquitted.
Even with totally private actors, defendants who are only tangentially involved sometimes do get off. What’s more, with private actors the evidence is more difficult to obtain, because – unlike with FBI participation – things are not ordinarily recorded. The FBI makes sure it has evidence, and what’s more it knows the required elements of any crime. This gives it a great advantage, especially over young and naive “plotters.”
Bauxite adds:
I completely agree that it matters, and matters a great deal, that the Whitmer defendants were led astray by the government rather than by a private criminal. But that doesn’t mean that the Whitmer defendants didn’t choose to commit a crime.
I don’t have time to go back and read all the articles I’ve already read about the Whitmer kidnapping defendants, but here’s some more background [my emphasis]:
He was referred to as “Captain Autism,” the accused ringleader in the alleged plot to kidnap Gov. Gretchen Whitmer.
But with a nickname like that, the defense argues, it’s clear the man’s codefendants didn’t take him seriously, or believe that he could commit a crime — like hatch a plan to snatch and kill the governor.
That was entirely the FBI’s doing, the defense maintains, not Adam Fox’s.
“No one would have conspired with Adam Fox because no one believed he had any ability to form, much less carry out, a plan,” the defense argues in a new court filing that outlines how it plans to fight the government in the upcoming trial that highlights the growth of extremism in America.
With the trial three months away, the defense this week asked the court for permission to let jurors hear 258 statements that it believes will prove the FBI planted the kidnapping idea in the suspects’ heads, egged them on with hateful comments about Whitmer and her COVID-19 mandates, and choreographed all the events that led to their arrests at a warehouse in October 2020.
Plus, not only were they drawn into a plot that the government appears to have wholly concocted, they were barely “participants” at all. in the sense of committing a crime. What crime was committed here? Kidnapping conspiracy – because little actually happened except what the FBI did. Yada yada yada talk talk talk.
More [emphasis mine]:
Prosecutors say the men cased Whitmer’s vacation house at night, planned to blow up a nearby bridge to slow down police, drew up a map and bought night goggles, and talked about taking her out on a boat and stranding her in Lake Michigan — and even scooping her up in a helicopter and flying her away to some unidentified location.
None of that is believable, the defense has argued, maintaining that the defendants were merely engaged in tough talk and fantasy play, and had no real plan to harm the governor. The FBI hatched the kidnapping idea, and used paid informants to manipulate the defendants into carrying out a scheme that they never came up with or agreed to be a part of, the defense maintains.
Among the statements the defense wants the jury to hear is a comment that an FBI agent made while interrogating an undercover informant from Wisconsin who had embedded himself in the group.
“We have a saying in my office. Don’t let the facts get in the way of a good story,” the agent allegedly said in the Dec. 10, 2020 conversation. The defense said this comment shows the FBI disregarded the defendants’ “unequivocal objections” to a kidnap plan.…
The defense also wants jurors to hear a comment from one of Fox’s codefendants, Ty Garbin, who in July 2020 allegedly said, “Captain Autism can’t make up his mind.”…
The defense also wants jurors to hear statements that it says show the suspects were opposed to the kidnapping scheme.
“Perhaps none is more direct than a statement by (defendant) Daniel Harris, who told the lead informant and others: ‘No snatch and grab. I swear to …God.'”
The defense also wants jurors to hear a July 7, 2020, conversation, when someone in the group of defendants said they were “not cool with offensive kidnapping” and others agreed.
The defendants face the possibility of life imprisonment on these charges.
It’s a funny thing – and I don’t mean funny ha-ha – how the very same principles and concerns that made me a liberal long ago makes me a conservative by the standards of today.
I recall that the ATF, during, at least, the Obama admin, would get some low-functioning homeless person to do something illegal and then AHA!, we got another gun nut off the street.
Holder said that, when he heard about it [when it was brought to his attention in such a way that he couldn’t deny it any longer] he stopped it. Until then, it was routine.
So the actual question is…whether the DoJ actually stopped this stuff.
Here’s a suggestion: try to shame our sociopaths in robes (who act as enablers of the sociopaths in the U.S. Attorney’s office) and redefine entrapment in the statute. Other suggestions: scarify the federal penal code and re-calibrate the sentencing, distribute federal police services over six departments, separate legal representation of the government from investigation of crimes; end the franchise of the U.S. Attorney and the Attorney-General’s other minions to initiate investigations, insisting they take referrals from federal police services, make representations in court, and advise on evidentiary gaps, and do nothing else; require rotation-in-office for lawyers employed by the attorney-general, with no one serving in the department longer than 12 years in any bloc of 14. Also, identify the most abusive offices and fire every salaried employee therein. The offices in Manhattan and in DC would be a place to start.
So, we have an FBI that utterly fails to prevent real crimes like the Boston Marathon Bombing and the death of that sweet little boy whose sister lost her leg, or the two other young women who died, despite surveilling the bombers;
didn’t keep the Orlando night club deaths from happening either, nor the FL high school deaths by the multiply reported assailant, but boy oh boy oh boy, they have PLENTY of time to cook up political kidnappings of the Michigan governor and assaults like J6.
What a disgusting, pathetic excuse of a law enforcement agency.
I too am done with giving a pass to the underlings. They are ALL responsible for the corruption. Anyone who stays is part of it.
The rot is deep and extensive.
Lee:
Agreed.
It seems to me that two truths apply; firstly, FBI operatives did not force any of the defendents into continuing to participate. As soon as the expression of opinions became a decision to act, any of them could have said no and left.
That of course ignores the possiblity that the plotters might decide that they couldn’t afford for anyone to leave…
As well as, if any did leave would they have a legal obligation to report the plot?
Secondly, the FBI operatives, their handlers and their superiors are guilty of participation in a conspiracy to incite violence.
That, IMO legally invalidates the FBI’s modus operandi. The jury should render a verdict of not guilty, to send a message that this is not acceptable behavior. Then in 2024, a Republican President and Congress, after sweeping the upper echelons of the DOJ clean should prosecute all involved. Let them experience for themselves how the process can be the punishment.
Lee, How about Nidal Hasan and the Ft. Hood shooting?
As I recall, Hasan was practically shouting for jihad at a profession psychiatry (or similar) conference prior to one of the pre-shooting investigations. But hey, the FBI or DoD can’t be seen engaging in any Islamophobia.
A very well put-together post Neo.
I saw some hearings on the Nassar case. One writer characterized Wray as, “Gosh, it’s too bad it happened.”
He’s going to train some of his people to take this seriously, which presumes they don’t now.
They didn’t even bother to call local LE.
One big shooter was gunning for a job with the USOC, I think it was, and wasn’t about to annoy them.
But…priorities. Fifteen good men and true were all over Bubba Wallace’s noose.
And, of course, the annoyed parents at school board meetings.
The woman from planned parent/hood. A plausible diversion. Whitmer-closet.
The FBI did nothing about that doctor in Michigan
I think the list can go on and on and on about ineffectual FBI..
My “knowledge” of entrapment pretty much comes from TV and movies, and mostly to do with shows about prostitution.
It seemed to me on those shows, of the undercover cop came up to the “working girl” and said, “I’ll give you money for sex,” and the woman did it, it was entrapment. The undercover cop had to wait for the working girl to say “Hello, hey Joe, you wanna give it a go? $100, okay?” She’s arrested.
I have no idea how realistic this is.
If the defense is able to get at least some of this material into evidence at trial, I wonder if jury nullification is a possibility. Here’s the full force of the FBI and the federal government against these somewhat hapless individuals.
Hard to say how this is going in the population at large, but for a good many hereabouts–and how many elsewhere–are on the point of presuming any fed testimony or evidence is necessarily suspect. Might not prove it’s bogus but when it’s a matter of putting somebody in jail for decades….
Lee Also:
That’s the way it’s SUPPOSED to work. In reality, especially with political cases, the agents and informants are often much more directive and they know it will almost never backfire on them.
I would get rid of Federal Law enforcement all together. Just use marshals as delivery boys. There should be no FBI, ATF, DEA at all.
My point is that the corruption of federal law enforcement is a much bigger problem than entrapment law.
You don’t have the believe that these defendants shoud be acquitted to believe that the FBI has done something corrupt here that needs to be addressed. It’s also much harder to convince people that the defendants should be acquitted than it is to persuade people of FBI corruption.
I don’t want to lose a chance to address the FBI’s corruption here by tying it to the fates of these defendants.
“…corruption…”
If it were only corruption….
It’s far, far worse.
Compare and contrast;
https://www.breitbart.com/politics/2021/12/31/nancy-pelosi-sets-jan-6-commemoration-schedule-historians-establish-narrative/
https://pjmedia.com/news-and-politics/megan-fox/2021/12/31/exclusive-j6-prisoner-says-i-literally-have-nothing-left-but-food-and-my-bible-n1545694
https://twitter.com/julie_kelly2/status/1477279397984018433
Bauxite:
I don’t think anyone here would disagree with the idea that FBI corruption is huge and more important than this particular case.
But this case is important, as is any miscarriage of justice. The two things are certainly connected, and in fighting one you fight the other as well.