Jul. 26—BELLAIRE — Three men charged with providing material support for an act of terrorism in an alleged plot to kidnap Michigan’s governor will stand trial Aug. 23.
At the conclusion of lengthy court proceedings Tuesday in Antrim County 13th Circuit Court, Judge Charles Hamlyn asked each defendant — Eric Molitor and twin brothers Michael and William Null — individually if they wanted to plead guilty and waive their right to trial.
All said no.
Prior to that, the judge heard arguments on five motions brought by their defense attorneys.
The first motion, to modify Molitor’s bond conditions, was approved by the judge, along with the request to allow testimony from a witness who’s currently incarcerated in a maximum security prison in Colorado.
Whether that proposed witness, Adam Fox, who is originally from the Grand Rapids area, would agree to testify in the case for Molitor was still in question.
Molitor and the Null brothers, all of Michigan, are charged with providing material support for an act of terrorism and possession of a firearm during the commission of a felony in this case.
Five men were initially charged in 13th Circuit Court in 2020 for what state prosecutors charge was their role in the plot to kidnap the governor.
Brian Higgins, a resident of Wisconsin, and Shawn Fix, of Belleville, Mich., accepted plea agreements and said they would cooperate with Attorney General Dana Nessel’s office, which is prosecuting the case.
Evidence presented in court against the men included text messages and recordings made by undercover FBI agents and confidential sources, expressing anger over the governor’s pandemic-related executive orders, the possibility of mask and vaccine mandates, and the prospect of gun control legislation.
The kidnapping plot was planned in response, said prosecutors, who intend to show evidence that some of the men participated in a drive-by surveillance of Whitmer’s lakeside summer home near Elk Rapids.
In the first motion argued in court Tuesday, Molitor’s lawyer, William Barnett, said his client cannot attend either Wexford County Commission meetings or Clam Lake Township meetings because they are not live-streamed, which means Molitor can’t participate in real time.
“He’s presumed innocent,” Barnett said. As a result, his client must “be given a right that all citizens have.”
Hamlyn agreed. Under new conditions the court laid out, Molitor can only speak during public comment at these meetings, but he cannot speak about this case.
He also must notify his lawyer after he attends a meeting, who is then responsible for notifying the state Attorney General’s office in case they want to obtain the meeting’s minutes for their own records and to verify what Molitor says.
Will Adam Fox testify?
Earlier this month, Barnett also filed another motion on behalf of his client to include Adam Fox as a witness in the upcoming trial.
Fox is currently incarcerated in a maximum security prison in Colorado after a jury found him guilty of conspiracy in a plot to kidnap Whitmer, according to previous reporting.
“(W)ithout Adam Fox’s appearance, and expected testimony, Defendant Molitor will not receive a fair trial and his due process rights will be jeopardized,” Barnett said in a court filing.
But the federal authorities require a letter from a “state authority” certifying a specific security level before Fox will be allowed to travel.
In this case, the judge said he would act in that role as the state authority, but then it would be up to Barnett to file any paperwork he may need to secure the security level that would allow Fox to travel.
The judge noted that having Fox appear as a witness via Zoom would be acceptable as well.
“If Mr. Fox is willing to testify, then sure, he can be brought here,” Hamlyn said. “He is not charged in this case and so the onus would be on Mr. Barnett and obviously he’s not a state agency, but certainly the court is.”
If Fox were to come to the courthouse in person for the duration of the trial, Hamlyn said he would be transported by either the Federal Bureau of Investigations or Michigan State Police, and housed at the Antrim County Jail with all of Fox’s current safety protocols in place.
But, Barnett noted, that there is a concern — even with all of these approval measures in place — that Fox may choose not to testify, instead invoking his Fifth Amendment rights, in which a criminal defendant is not required to testify if doing so would incriminate him.
Barnett asked the court to not file state charges against Fox based on his testimony, explaining that he was already tried in a federal courtroom, and that filing charges against him now would be “disingenuous” and “retaliatory.”
Hamlyn ended the debate by saying that the most important question still needs to be answered: Whether or not Fox will chose to testify.
Before expending resources to get Fox to Michigan from his prison cell, the judge said he will arrange for a video hearing with Fox “as soon as possible,” to ask him if he would testify during the trial.
For that hearing and any future 13th Circuit Court proceedings, Christopher Gibbons will serve as Fox’s attorney. Gibbons was also Fox’s defense attorney during his own trial in 2022.
Before wrapping up the conversation about Fox’s potential role as a witness, Hamlyn confirmed that he would be “happy to provide the federal system with any assistance they may need.”
Definitions, explanations and clarifications
The remaining three motions filed by defense attorneys for Molitor and the Null brothers all discussed definitions and clarifications as a part of court proceedings. All were ultimately denied by the court.
A bill of particulars presented by William Null’s attorney Damien Nunzio asked the prosecuting attorneys to file specific definitions for all of the charges that the three men are facing.
The prosecutors, led by attorney William Rollstin, asked for the court to dismiss this motion.
“It’s disingenuous to say they don’t know what they’re charged with,” Daniel Grano, assistant attorney general for the state of Michigan, said.
All the defendants received ample explanation of what charges they’re facing during the preliminary examination, Hamlyn agreed, dismissing the motion.
The following motions — one dismissing a state statute as unconstitutional and the other asking for specific jury instructions — both asked for definitions of particular words to be rewritten and redefined.
Some of these words included “training,” “expert services” and “personnel.”
In the motion packet, the defense attorneys included examples of definitions for these words that they would like to be admitted.
However, when reading through the motion, Hamlyn said he “had trouble understanding them.”
Ultimately, the judge denied both motions, but made one exception for the last one. “The court will make the finding that ‘personnel’ can include oneself,” he ruled.
Before the trial begins, the list of witnesses and exhibits must be compiled and jurors selected.
The trial is scheduled to start at 9 a.m. Aug. 23 in the Antrim County Courthouse in Bellaire.
Record-Eagle Senior Reporter Mardi Link contributed reporting to this article.