Federal prosecutors in the Michigan Gov. Gretchen Whitmer kidnapping case have asked a judge to keep the names of two undercover FBI agents undisclosed and accused a defendant’s friend of offering a “cash bounty” for information about at least one of the agents.
The U.S. government articulated its position on the issue on Feb. 24, in response to a Feb. 22 brief from defendant Barry Croft stating that the federal agents shouldn’t be allowed to testify under false names.
“Testifying under a false name would not allow for effective cross-examination and would deny Mr. Croft his right to confrontation. Despite the government alleging that it will provide counsel with any material that may go to credibility, this is not enough,” Croft’s attorney said in the filing.
“Counsel has a duty to independently investigate and counsel’s investigation may return different results than the information ... the government has offered to provide.”
Croft was particularly interested in two undercover federal agents he apparently had contact with during the runup to his October 2020 arrest: “Red” and “Mark.”
According to Croft, Red wasn’t merely a passive player in the investigation.
“Red generated promotional videos showing his purported abilities, which were pushed to the charged defendants in an attempt to interest them in purchasing his explosives,” Croft said.
“When they didn’t initially bite, Red offered that ‘IOUs’ were an acceptable form of payment.”
Croft accused the Department of Justice of lacking any explanation as to why the undercover agents should be kept anonymous.
Prosecutors responded on Feb. 24, accusing Croft of disclosing discovery material to his “extremist associates.” They also said the two agents in question were working undercover in other, unrelated anti-terrorism investigations.
“Those associates offered a cash bounty for the identity of informants and have publicly called for violent retaliation against the FBI,” prosecutors said. “The government requests the court permit undercover agents to testify using the pseudonyms by which they were known to the defendants.”
As evidence, prosecutors included a screenshot of someone saying that Croft had been arrested, offering a “$1,000 reward for the name and location of the rat.”
They also cited numerous examples of Croft talking to reporters.
“Croft has demonstrated a desire to provide such information to the media and his associates, who will widely disseminate their identities in an attempt to harass them, tamper with, or undermine their testimony,” prosecutors said.
“Public disclosure of the witnesses’ true names will have no bearing on defendants’ ability to prepare their defense or to cross-examine the witnesses.”
Prosecutors also argued that the undercover agents would still be testifying live in a public courtroom. The use of a pseudonym won’t affect the jury’s ability to observe and assess the agents’ demeanor and appearance at trial, they said.
However, the government also requested that the court prohibit sketch artists and other observers at the trial from recording the undercover agents’ physical appearances.
Prosecutors argued that the court already prohibits audio and video recording of its proceedings and that this further restriction wouldn’t affect the defendants’ ability to cross-examine the agents.
“The measures proposed are narrowly tailored to protect the safety of the witnesses and the integrity of ongoing anti-terrorism investigations,” prosecutors said. “They impose minor, if any, burdens on the defendants’ right of confrontation.”
The trial is scheduled to start on March 8.
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