‘All talk, no action’ defense likely in Michigan
Prosecutors must prove more than one person took step toward kidnapping
TRAVERSE CITY, Mich. — 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.
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 are charged in federal court with conspiracy to kidnap — a more specific allegation.
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 evidence to send the case to a grand jury, which could issue indictments.
“The government isn’t required to show that the conspirators signed on a dotted line or had a five-step plan for exactly how it was to go,” she said. “They’re required to show unity of purpose.”
But the defense likely will portray the plot as more fantasy than reality, said John Smietanka, a former federal prosecutor.
“The tricky thing about conspiracy cases is … when you have multiple parties, whether they have the same motives and agree on a common plan,” said Smietanka, who also has been a defense lawyer. “What exactly did they agree to, and how?”
Defense attorneys probably also will focus on the informants and raise the idea of entrapment, he said.
Prosecutors will try to weed out potential jurors who might be biased against Whitmer, said Mike Rataj, another member of the defense team for the Hutaree.