NEW: the 6th Circuit has issued a letter in the Whitmer kidnap appeal strongly suggesting it's open to arguments that out-of-court statements excluded by the district judge as hearsay should have been admitted.
This could lead to a possible retrial for Barry Croft and Adam Fox.
Fox and Croft were convicted in August 2022 in a 2nd federal trial in the case (following a hung jury the prior April) and were given long sentences. They appealed & on May 2 made oral arguments before the circuit, which seemed particularly receptive to the hearsay issue.
In both federal trials, Judge Robert J. Jonker excluded much of the evidence defendants sought to admit on grounds that it represented out-of-court statements by individuals who were not testifying (such as FBI informant Stephen Robeson) and thus was inadmissable hearsay.
This letter, sent to defense counsel as well as prosecutor Nils Kessler, asks the lawyers to tell the court whether excluding the those statements was "harmful or harmless and why?" It also seeks citations detailing what was excluded, what was admitted, and what impact that had.
The court is giving counsel 2 weeks to answer its question. If the court finds that the excluded evidence should have been admitted AND that it was perjudicial to the defendants, the remedy would be a new (3rd) trial, this time with the exhibits included.
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