Federal Judge Diane Humetewa denied two mistrial motions in the Backpage case on September 14, exactly two years after the first Backpage trial ended in a mistrial.
The Backpage trial nearly jumped the tracks on Thursday in Phoenix’s federal court after the defense called twice for a mistrial, only to be denied each time by U.S. District Court Judge Diane Humetewa.
Both motions involved material concerning children and sex trafficking, which defense attorneys argued could poison the jury against their clients.
Ironically, the motions came two years to the day that a former judge in the case, Susan Brnovich, declared a mistrial due to egregious prosecutorial misconduct involving repeated references and testimony about — you guessed it — sex trafficking and child sex trafficking.
Unlike the first trial, where the government’s opening statement included more than 60 references to sex trafficking and children, the government’s Aug. 31 opening, given by Assistant U.S. Attorney Andrew Stone, contained no such references.
The underlying charges against Backpage’s onetime co-owner, veteran journalist Michael Lacey, and four others, involves the facilitation of misdemeanor state prostitution offenses in violation of the U.S. Travel Act. The defendants are not accused of heinous crimes involving children in the sex trade or adults driven into sex slavery by force, fraud, or coercion.
(Lacey’s longtime business partner and Backpage co-owner, newspaper publisher, Jim Larkin, faced the same allegations, but he died in tragic circumstances shortly before the trial was scheduled to begin.)
During Thursday’s testimony by the government’s lead witness, Backpage’s CEO and eventual owner, Carl Ferrer, Assistant U.S. Attorney Kevin Rapp asked Ferrer to read and comment on emails and documents that contained mentions of child sex trafficking.
At one point, Rapp introduced a September 21, 2010 letter signed by 21 state Attorneys General to Backpage lawyer Samuel Fifer, asking that Backpage take down its “adult services” section because “ads for prostitution — including ads trafficking children — are rampant on the site.”
The letter urged Backpage to “hear the voices of the victims, women and children,” and follow the example of Craiglist.org, which had recently bowed to pressure from the AGs and closed its adult section, albeit reluctantly, placing a black bar over the “adult” category with the word, “censored.”
By contrast, Backpage resisted such pressure, standing on its right to publish under the First Amendment, a move that would make Lacey and Larkin the targets of powerful politicians.
Following Rapp’s discussion of the AGs’ letter and other documents, such as an online petition accusing Backpage of “child sex trafficking,” Judge Humetewa let the jury go for its morning break, at which time, Bruce Feder, attorney for co-defendant Scott Spear, made the first motion for mistrial.
Feder noted that repeated mentions of children and sex trafficking caused the 2021 mistrial. He said the issue could have been solved by redacting the documents in question, but now the bell could not be unrung. The government’s actions had prejudiced the jurors.
Lacey’s attorney Paul Cambria joined the motion, observing that during voir dire, members of the jury pool said they could not be impartial if children were involved. Moreover, the letter was signed by a “chorus of AGs [whom] we cannot confront” The missive offered “opinion” and “unfounded conclusions,” and so, was “irreparably prejudicial.”
Humetewa replied that during Rapp’s questioning of Ferrer, she had read a “limiting instruction” to the jury admonishing jurors to be mindful that the defendants are not charged with trafficking or child sex trafficking, but for facilitating misdemeanor prostitution offenses.
Problem is, that’s a little like telling somebody not to think of a pink elephant, over and over again.
Humetewa also cited a previous ruling by Judge Brnovich that found that sex trafficking and child sex trafficking are “subsets” of prostitution. Following the mistrial, Brnovich recused herself for unknown reasons, but her previous rulings remain “the law of the case.”
Humetewa denied the motion for a mistrial. But a second such motion would soon occur for unforeseen reasons.
Rapp’s Porn and NCMEC
After the break, Rapp showed the jury hardcore pornography that never appeared on Backpage. The porn — showing erect penises, nude women licking each other, a couple engaged in the 69 position, and naked women with their legs spread — was part of a PowerPoint presentation that Backpage used to train moderators on what was allowed and not allowed to be posted by users on Backpage.
Though not illegal, total nudity, close-ups of genitalia, and graphic sex acts became verboten on the site in late 2010, when Backpage experienced enormous growth in the wake of Craigslist’s capitulation to pressure from state AGs to close their adult category. (Note: Some ault ads simply migrated to other parts of Craiglist.)
Rapp quickly clicked through the PowerPoint, so the jury got to see all of the hardcore images. He didn’t explain that the raunchier photos were there to show moderators what was not allowed on the Backpage. Conversely, the images to be okayed for publication were generally Playboy-style pics of topless women.
After Rapp’s porn parade, the trial broke for lunch, during which several defense attorneys eyeballed a bulletin board, placed next to the only deli/coffee kiosk in the courthouse’s expansive general area.
The display was full of eight-by-eleven flyers with photos of missing children. Each flyer bore the face of a child, asking that people call a hotline number for NCMEC (with NCMEC emphasized in large type) if they have any information on the lost tots.
The bulletin board was problematic given its prominent placement and the fact jurors congregated near the kiosk. After the lunch break, Joy Bertrand, attorney for former Backpage employee Joye Vaught, described the content of the display for the court and called for a mistrial.
Cambria joined, pointing out that NCMEC was deeply involved in the case and that NCMEC’s former director, Ernie Allen, was supposed to testify for the defense.
Cambria called the display “extremely prejudicial” and said he had witnessed jurors looking at it. Humetewa decided to see for herself, so she left the bench and walked down to the display, followed by a small scrum of reporters. Looking at the presentation, she shrugged and headed back to the court and her dias.
Humetewa said the board was “a common type of public announcement,” which jurors might encounter on a roadside billboard or a TV commercial. She concluded that there was “not sufficient evidence that it’s so tainted the jury” and overruled the second motion for a mistrial.
With the second mistrial motion of the day put to bed, the long, slow slog of Ferrer’s direct questioning continued. Ferrer’s testimony will continue on Friday, which is a half day for the court. It is likely to stretch into next week, at least.
The journalists present joked about there being a “curse” on the trial.
Which may be. I’m not superstitious, but the ghost of Jim Larkin haunts this trial. His absence speaks volumes about the viciousness of this five-and-a-half-year-long prosecution, and it has changed the dynamics of the case. His loss is mourned like someone killed in battle.
PS: This morning, the bulletin board was no longer there. Maybe someone got the message.
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