Deliberations enter Day 4 in Whitmer kidnap case

If the defense and prosecution are getting antsy waiting for a verdict in the Gov. Gretchen Whitmer kidnap plot case, the judge says he gets it.

“I’ve been a judge for 15 years, but I still get a little breathless when we’re waiting for the jury,” Chief U.S. District Judge Robert Jonker said Wednesday morning.

The day ended with the jury heading home at 5 p.m. with no verdict – so it’s on to Day 4 of deliberations.

“It means nothing. Every case is different. Every jury is different,” said longtime criminal defense attorney Mike Rataj, who has handled scores of trials, including being part of the defense team in the 2012 Hutaree militia trial that ended in a major loss for the government.

“I’ve tried cases where literally the jury was out for five minutes and came back with not guilty. Others deliberate days on end and they came back guilty,” Rataj said, saying there’s no hard and fast rule about how long deliberations take.

“There’s only one thing that’s clear – the jurors are going through the evidence, and trying to apply the facts to the law as instructed by the judge,” Rataj said. “Anything else beyond that is guesswork.”

Former U.S. Attorney Matthew Schneider, who has been closely following the case, said he’s surprised the day ended with no verdict.

“I thought they would be done by now,” Schneider said Wednesday evening. “Even though the trial took several days, there were not that many witnesses. The jury might be trying to be thorough, which is good. But it could also be that they are struggling to reach agreement.”

Longtime criminal defense attorney Jim Thomas, who also was part of the defense team in the Hutaree case, agreed.

“In a case like this, the rule of thumb is that it would take the jury one day for each week of trial to deliberate,” Thomas said.

That means deliberations in the threeweek-long Whitmer trial would last about three days.

“If it goes beyond that ... you can expect them parsing out culpability between defendants,” Thomas said.

Longtime defense attorney Bill Swor, who also worked on the Hutaree case, noted there are four defendants in this case, charged with various crimes.

“Remember, the judge instructed them to treat each defendant as an individual and look at their individual conduct,” Swor said. “They may be simply following his rules to the letter.”

“It does not surprise me that there is not a verdict in this case yet,” said former U.S. Attorney Barbara McQuade. “Going through all of the evidence and discussing all of the charges is no easy task, particularly in a case of this magnitude.

And echoing her legal counterparts, she added: “It appears the jurors are taking their job seriously.”

The jury will resume deliberations on Thursday morning in a case that could send four men to prison for life on charges they plotted to kidnap Whitmer out of anger over her COVID-19 restrictions.

In court Wednesday, the four suspects continued to display the stoic demeanor they have for the majority of the trial. But 24-year-old Daniel Harris, the youngest of the suspects, couldn’t hide his boredom as the judge told a story about how he got his robe, and how it’s totally black.

As the judge spoke, Harris was slouched over.

So far, the jury appears to be meticulously dissecting the case, if the last few days are any indication.

First they asked for a dictionary. Then they asked for a legal definition of the word “weapon.” On Tuesday they asked for the trial transcripts of all the witnesses who testified, which are buried among more than 3,000 pages of transcripts.

The judge said no, and sent them back to the deliberation room.

“It’s not unusual in an important case like this for the jury to take its time reviewing the evidence and debating the issues,” said former federal prosecutor Mark Chutkow. “The parties raised a lot of issues for the jury to consider.”

Chutkow noted that the jury is weighing numerous issues, including free speech, conspiracy, entrapment, and the use of informants and undercover agents.

“Jurors take their jobs very, very seriously. I’m sure they understand the stakes in a case like this and want to make the right decision,” Chutkow said, adding deliberations could extend to the end of the week.

“Beyond that, you have to wonder whether they’re at an impasse on a count or a defendant,” Chutkow said, noting the questions posed by the jury so far “don’t suggest the deliberations are sliding off the tracks.”

For comparison, the jury deliberated for three weeks in former Detroit Mayor Kwame Kilpatrick’s public corruption trial, which lasted six months. Chutkow was the lead prosecutor in that case, which ended with Kilpatrick being convicted on 24 of 30 counts and being handed a sentence of 28 years in prison, though he was granted an early release by President Donald Trump in 2021 after serving seven years in prison.

In the Whitmer kidnap plot case, the jury spent the last three weeks hearing testimony from undercover FBI agents, undercover informants, two co-defendants who cut deals and testified against the others, and two hours’ worth of audio recordings. Dozens of text messages and Facebook posts also were shown to the jury.

Tresa Baldas: