Backpage Defendant Catches COVID, Trial Delayed (w/Update)

Covid
Remember me? (Yuri Samoilov via Flickr)
Federal Judge Diane Humetewa tentatively rescheduled the resumption of the Backpage trial after one of the defendants tested positive for COVID. (SEE UPDATE BELOW)

Update, Thursday, Sept. 7: The Backpage trial will resume on Tuesday, Sept. 12, per an order today from the federal court in Phoenix. 

The court further ordered:

ORDER as to Michael Lacey, et al., IT IS ORDERED that upon notice to the Court that a COVID-positive party will not waive his/her presence for missed trial days, within 24 hours, the Government and Defendants (either jointly or separately) shall file a brief, no more than 7 pages, as to why the non-appearing Defendant should not be severed for separate trial and a mistrial therefore declared as to him/her, resulting from a delayed jury trial proceeding. ORDERED by Judge Diane J Humetewa on 9/7/2023. 

In federal court in Phoenix on Tuesday, U.S. District Court Judge Diane Humetewa announced that one of Michael Lacey’s four co-defendants in the Backpage trial recently tested positive for COVID, delaying the resumption of opening arguments at least till Friday, Sept. 8.

Humetewa ordered lawyers for the sick man, Scott Spear, a former Backpage executive, to have their client tested again on Thursday morning. If he’s negative and free of symptoms, the trial will resume Friday morning. Otherwise, the trial will restart on Tuesday, Sept. 12.

The prosecution’s lead witness, Carl Ferrer, Backpage’s CEO and owner at the time of the feds 2018 seizure. As part of his plea deal, the feds allowed him to access $2.3 million set aside for legal expenses (screenshot via Permanent Subcommittee on Investigations)

The judge previously asked Spear’s attorneys if he would be willing to appear telephonically or via Zoom. They said they consulted with Spear, and Spear told them he would not waive his right to be present at trial and confront his accusers, as guaranteed by the Sixth Amendment to the U.S. Constitution.

The trial was scheduled to resume Wednesday, Sept. 6, but Humetewa said that under CDC guidelines, the earliest Spear could come back would be Friday, if he tests negative. COVID cases are again on the rise in the U.S., with First Lady Jill Biden testing positive for the virus on Monday.

The judge and her court staff all wore masks. Only three defense attorneys were present on Tuesday, two remained unmasked. The rest of the defense attorneys, their clients, and all prosecutors appeared telephonically.

When a defense attorney asked if she was going to issue an order requiring masks, she said no.

Opening statements in the Backpage trial began Aug. 31, after a delay of three weeks due to the tragic death of Jim Larkin, a storied newspaperman. Larkin was a co-defendant in the case and at one time a co-owner with Lacey of Backpage.com from 2004 to 2015, when the two award-winning journalists, who once owned a 17-paper chain of alternative weeklies, sold Backpage to its CEO, Carl Ferrer.

In 2018, Ferrer turned state’s evidence shortly before Lacey, Larkin, and the others were indicted on 50 counts of facilitating misdemeanor state prostitution offenses under the U.S. Travel Act, along with an attendant conspiracy charge. Lacey and Larkin, along with two of their codefendants, were charged with additional money laundering and conspiracy counts.

After Larkin’s death, the judge formally dismissed the indictment against him.

Larkin
Newspaperman Jim Larkin, one of the original defendants, who recently met a tragic end (via Wikipedia)

In general, the government seeks to hold the remaining defendants criminally liable for the acts of third parties unknown to them — people who supposedly posted ads on Backpage.com, a Craigslist-like classified listings site that offered ads for an array of goods and services including cars, jobs, apartments, etc., as well as legal adult services for escorts, massage, and dating.

It was the adult-themed ads that roused the ire of various prosecutors and politicians, who demanded that Lacey and Larkin shutter the site. But the two free speech stalwarts refused, and a string of federal and state courts consistently ruled that Backpage was operating legally and protected by the First Amendment as well as federal law.

In court today, prosecutors said they were planning to call Ferrer as their first witness after the end of the remaining opening statements from defense attorneys. Humetewa set a hearing for Wednesday at 1:30 p.m. to review exhibits that may be used during Ferrer’s testimony.

Ferrer pled guilty in federal court to one count of conspiracy. He also pled guilty on behalf of Backpage to one count of money laundering.

Michael Lacey
Michael Lacey, former executive editor of  the 17-paper Village Voice Media chain

Court filings show that Ferrer is allowed to access and use $2.3 million set aside for his defense. Court filings also say Ferrer and his ex-wife were allowed to keep their respective houses in Texas.

This is in stark contrast to prosecutors’ seizures of nearly all of Lacey and Larkin’s assets, with liens on their properties, preventing them from raising funds by renting or selling them. Prosecutors also seized more than $10 million in defense lawyers’ trust accounts, which contained money from similar sources as Ferrer’s.

This is the second trial in the Backpage case. The first took place in Sept. 2021, but ended after just three days of testimony in a mistrial due to egregious prosecutorial misconduct. The mistrial, as well as COVID surges in 2020 and 2021, have contributed to significant delays in the case.

The case is now in its sixth year. Humetewa is the fourth judge to sit on the case, with the rest having recused themselves for unknown reasons.

The stakes could not be higher. One man has already lost his life. And if found guilty, the defendants are potentially looking at long prison sentences.

Lacey, 75, could spend the remainder of his life in prison.

Please also see:
Michael Lacey’s Attorney in Backpage Case: Lacey’s a ‘First Amendment Guy’
and
Journalists Call for an End to the Prosecution of Michael Lacey

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About Stephen Lemons

Stephen Lemons is an award-winning investigative journalist with more than 20 years of experience covering everything from government corruption to white-supremacist gangs. In addition to Front Page Confidential, his work has appeared in Phoenix New Times, the Los Angeles Times, Salon.com, and the Southern Poverty Law Center’s Intelligence Report magazine.

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