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‘All talk, no action’ defense likely in Michigan kidnap case

A confederate flag hangs from a porch on a property in Munith, Mich. on Oct. 9, where law enforcement officials said suspects accused in a plot to kidnap Michigan Democratic Gov. Gretchen Whitmer met to train and make plans. Pete Musico and Joseph Morrison, who officials said lived at the Munith property, have been charged in the plot. A federal judge said on Oct. 16 that prosecutors have enough evidence to move toward trial for five Michigan men accused of plotting to kidnap Democratic Gov. Gretchen Whitmer. (AP photo)

TRAVERSE CITY — When members of a Michigan paramilitary group were accused a decade ago of scheming to overthrow the U.S. government, their defense was based largely on one claim: We were all talk, no action.

It worked so well that a federal judge took the rare step of dismissing most charges against the extremist group known as Hutaree, without giving the jury a say.

A defense lawyer in that case now represents Ty Garbin, one of six men accused of conspiring to kidnap Democratic Gov. Gretchen Whitmer because of anger over her stay-at-home policies to contain the coronavirus. Again, attorney Mark Satawa contends his client had no intention to carry out the alleged plan, whatever he might have said in recorded or online conversations.

“Saying things like ‘I hate the governor, the governor is tyrannical’ … is not illegal, even if you’re holding a gun and running around the woods when you do it,” Satawa told The Associated Press.

The “big talk” argument likely will be a primary theme for the defense, as attorneys indicated during a preliminary hearing this month. The verdict may turn on whether the judge or jury are convinced the plot was serious, say trial lawyers not involved with the matter.

Yet they caution that unique factors pose challenges and uncertainties for both sides — particularly as the matter unfolds against the backdrop of a pandemic, economic upheaval and a yawning political divide in the U.S.

“The defense lawyers are going to have their work cut out for them finding fair and impartial jurors who haven’t predetermined the outcome before they hear the case,” said Mike Rataj, another member of the defense team for the Hutaree, who were acquitted in 2012.

“On its face it looks terrible,” Rataj said, referring to police and news reports about the kidnap plot allegations.

A crucial difference between the Hutaree case and this one is that the Hutaree extremists were charged with sedition — rebellion against the government. In the alleged plot against Whitmer, six men, led by Adam Fox of the Michigan III%ers, are charged in federal court with conspiracy to kidnap — a more specific allegation.

Authorities say members of a second anti-government organization also participated in the abduction scheme. Eight other men are believed to be members or associates of a group called the Wolverine Watchmen and are charged in state court with counts including providing material support for terrorist acts. Some of the Wolverine Watchmen are accused of planning and training for other violent crimes, including storming the Michigan Capitol building.

To win a conviction on the federal charges, prosecutors must prove beyond a reasonable doubt that more than one person agreed to kidnap the governor and took at least one step toward carrying out the plan.

The preliminary hearing showed the prosecution would use text messages and conversations secretly recorded by informants as evidence. The plotters cased Whitmer’s northern Michigan vacation home in August and September and one purchased a Taser, while others agreed to buy explosives and tactical gear, FBI agent Richard Trask testified.

Defense attorneys grilled Trask about missing details, such as how the kidnapping would be done and where Whitmer would be taken. They questioned whether infiltrators had egged on the defendants. They argued that inflammatory comments and even live-fire training exercises were constitutionally protected.

Magistrate Judge Sally Berens ruled there was enough to send the case to a grand jury, which could issue indictments.

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