Judge’s decision to release members of Mich. militia until trial leaves prosecutors scrambling

US takes early lumps in case against Mich. militia

DETROIT — Federal authorities touted the arrests of nine members of a Michigan militia as a pre-emptive strike against homegrown terrorists, declaring at an initial court hearing that the suspects with “dark hearts and evil intent” wanted to go to war against the government.

Five weeks later, prosecutors are scrambling to regroup after a judge questioned the strength of their evidence by ordering the so-called rebels released until trial and saying they had a right to “engage in hate-filled, venomous speech.”

“The government is falling short,” said David Griem, a former federal prosecutor who’s not involved in the case. “The message that’s been sent to the community is there are problems with this case.”

During two days of hearings last week before U.S. District Judge Victoria Roberts, prosecutors tried to show how dangerous they perceived the Hutaree militia to be by playing secretly recorded conversations. Those talks, however, revealed no specific plot. Under questioning by defense attorneys, the FBI’s lead agent on the case seemed unprepared.

Roberts ordered the nine released from jail under very strict conditions, including electronic tethers and curfews. They were supposed to go home Tuesday, but she froze her decision until Wednesday to give prosecutors time to consult the U.S. Justice Department about a rare appeal.

The indictment unsealed in March called Hutaree an extremist organization in southern Michigan preparing to wage war against the federal government by first mowing down police officers and bombing a subsequent funeral. Besides seditious conspiracy, the nine were charged with attempted use of weapons of mass destruction.

The militia is led by David Stone, 44, of Clayton, Mich. — “Captain Hutaree” — who was recorded saying he wanted to burn down homes of four police officers and “just start huntin’” others along the road. His attorney, William Swor, has dismissed it as “stupid, hateful talk.”

The judge’s task was to determine if the eight men and one woman — Stone’s wife, Tina — were too dangerous to be released. Roberts found that the secret recordings of militia members by an undercover agent contained “offensive and hate-filled speech,” but nothing that signaled a conspiracy to levy war against the government.

“The defendants laugh, make sounds and appear to talk over one another,” Roberts said, referring to a Feb. 20 recording. “There is also a discussion of strippers.”

She was not ruling on anyone’s guilt or innocence. The legal threshold to keep people in jail, especially with major allegations of weapons violations, is not high, which raises questions about the broader case and why prosecutors didn’t have evidence to persuade the judge.

“They weren’t prepared,” said John Freeman, a former federal prosecutor. “What strikes me is the appearance that the government took detention as a given based strictly on the nature of the allegations.”

At last week’s hearing, the FBI’s lead case agent, Leslie Larsen, said she was hastily told by prosecutors that she had to testify. Defense lawyers pressed her for information about each defendant, but she said she hadn’t lately looked at her reports and couldn’t answer many questions.

The judge found her testimony “vague,” noting the agent said militia members “may have been planning something.”

A firearms agent was quickly summoned from Grand Rapids, 150 miles west, to testify about four weapons seized by investigators. But Roberts removed him from the witness stand when defense lawyers said they had no notice.

“It’s fair to classify this as sandbagging,” attorney Mark Satawa complained.

U.S. Attorney Barbara McQuade said a detention hearing is a limited stage for evidence. She expressed confidence about her office’s handling of the case.

“Trial is another forum. We’ll present all our evidence,” McQuade said. “It’s our position that they pose a danger to the community and detention is appropriate.”

Freeman, the former prosecutor, said appealing the release of the militia members to the 6th U.S. Circuit Court of Appeals in Cincinnati is risky for the government.

“You don’t go unless you really think the judge made a serious error and you’re fairly certain you will prevail,” he said. “You’re elevating this thing to a much higher level.”

He cautioned that while government lawyers may be taking some lumps, the nine defendants still face serious charges.

“It’s a big leap to say somebody’s released on bond and that means the government has a poor case. These are seasoned prosecutors,” Freeman said. “Hate speech alone is probably not going to get the government where it wants to be.”