Correction: This story has been corrected to indicate that US Magistrate Judge Sally Berens serves in the Western District.
A US investigative judge has denied a request from multiple media outlets seeking audio related to the case against a man accused of attempting to kidnap Governor Gretchen Whitmer.
But Western District Trial Judge Sally Berens granted release of several photos and a video admitted during Delaware defendant Barry Croft’s bail hearing in January.
Media were able to observe and report on each of the exhibits during the January 13 hearing, which was “sufficient to satisfy the First Amendment,” Berens wrote Tuesday.
The right of public access to court records is “neither a constitutional right nor an absolute right”, but a right left to “the sound discretion of the court of first instance”, wrote the magistrate.
“…The additional risk to the ability of the accused Croft to obtain a fair and impartial jury outweighs the modest burden of the common law right of public access by delaying the release of the tapes until the trial of this case,” Berens said.
Lawyers for the media, including Buzzfeed; The Detroit News; Scripps Media Inc., owner of WXYZ-TV (Channel 7); and The New York Times requested access to the exhibits on the grounds that the public has a right to examine them to understand why Croft was held without bond pending trial.
The kidnapping conspiracy case has drawn international interest as one of the country’s highest-profile cases involving men angered by state restrictions on travel and business during the pandemic.
Croft, 45, of Bear, Delaware, is one of five people awaiting trial on charges of kidnapping conspiracy that could send them to federal prison for life. He was sentenced to detention without bail in January.
He is one of the two leaders charged in the case. A sixth man, Hartland Township resident Ty Garbin, has pleaded guilty and is cooperating with the government.
The photos in question in the case Berens decided on Tuesday include those of Croft with a ‘boogaloo’ flag and a shotgun and of a bridge near Whitmer’s summer home which the defendants allegedly planned to blow up . Also wanted video showed Croft firing a semi-automatic assault rifle during a field training exercise in Wisconsin.
The audio recordings at issue in the case included one of Croft during a field training exercise in Wisconsin and another of Croft during a meeting of a militia group in Ohio.
The audio recordings, Berens wrote on Tuesday, “are more inflammatory” than the images and video and include statements by Croft regarding his “intent to commit acts of terrorism” and explicit discussions regarding Whitmer’s abduction.
The audio recordings are likely to be widely distributed if released, and due to the “one-sided nature” of bail hearings, they are likely to lack the context or defense that Croft’s attorneys might offer at trial, the court said. magistrate.
“While the audio recordings were certainly central to the court’s bail decision, there were ample opportunities for surveillance, and the delayed release of exhibits would do little to prevent that,” he said. wrote Berens.
eleblanc@detroitnews.com
