Backpage Judge Allows Defense to Argue ‘Legality’ of Ads

Like a sauna in the Saudi desert: Phoenix's Sandra Day O'Connor U.S. Courthouse (Tony Webster via Flickr)
Federal Judge Diane Humetewa allows the defense to argue the "legality" of the adult-oriented ads that appeared on Backpage.com, sets trial schedule.

During a marathon six-hour pre-trial hearing in Phoenix’s federal court on Thursday, U.S. District Court Judge Diane Humetewa ruled that the defense in the Backpage case can argue the adult-themed ads that appeared on the classified listings site were, in fact, legal to publish.

“It’s the government’s burden to show that these are illegal ads,” Humetewa told prosecutors, denying a government motion to muzzle the defense on this crucial issue during the upcoming retrial of veteran newspapermen Michael Lacey and Jim Larkin.

The special proceedings courtroom in the Sandra Day O’Connor U.S. Courthouse, where Lacey and Larkin are being tried for the second time (Eric E Johnson via Flickr)

Prosecutors have long argued that the adult-themed listings posted to Backpage.com by its users for escorts, massage, dating, etc., were all “blatant” prostitution ads.

But the defense contends that Backpage did not allow direct sex-for-money offers on the site and that the ads in question were legal to publish and presumptively protected by the  First Amendment.

Humetewa said that whether or not the ads were legal went to “the heart” of the case, which heads to trial for a second time on Aug. 8, more than five years after the government indicted Lacey and Larkin and seized and destroyed Backpage in an unprecedented act of direct government censorship.

Lacey, Larkin, and four co-defendants face broad allegations that they “facilitated” misdemeanor state prostitution offenses via adult-themed ads on Backpage. The site ran millions of ads on a daily basis for things like car sales and apartment rentals as well as adult-oriented listings deemed lawful by a slew of federal and state courts.

Their first trial in Sept. 2021 — anticipated to last three months — ended in a mistrial after just three days of testimony due to egregious prosecutorial misconduct.

Federal Judge Diane J. Humetewa is the fourth judge to sit on the Lacey/Larkin case, taking over after Judge Brnovich unexpectedly recused herself in Oct. 2021 (U.S. Embassy and Consulates in Canada via Flickr; cropped from original)

In violation of the orders of then-trial judge, U.S. District Court Judge Susan Brnovich, government lawyers repeatedly mentioned and elicited testimony concerning inflammatory subjects: specifically, sex trafficking and child sex trafficking, heinous crimes the defendants are not charged with and could never be charged with.

Rather, the government seeks to hold Lacey, Larkin, et al., vicariously liable for the crimes of third parties — crimes that prosecutors claim are vaguely connected to ads that once ran on Backpage.

Problem is, the government cannot show that the defendants knew who uploaded the ads to Backpage, or even that the defendants saw the ads when they ran. Nor are the 50 ads listed in the indictment tethered to specific crimes.

Now the government must prove such ads were illegal. Which is no mean feat.

In fact, at the first trial, one of the government’s key witnesses, Brian Fichtner, a special supervisory agent with the California AG’s office, admitted under cross-examination that the escort ads he reviewed on Backpage were legal on their face.

Fichtner testified he could not make an arrest for prostitution based on the ads alone, and he knew of no one who had. He agreed that escorting was legal and that sex workers had First Amendment rights like every other American.

The government is expected to call Fictner again, where the defense will confront the agent with his earlier testimony.

Groundhog Day

Humetewa set a grueling schedule for the new trial, which is expected to run from Aug. 8 to Nov. 3, Tuesdays through Fridays, beginning at 9 a.m., with a recess on Sept. 29 and a break the first week of October.

Thursday’s hearing came with a strong sense of deja vu, taking place in the large, circular “special events courtroom” in the humid, six-story glass confines of the Sandra Day O’Connor U.S. Courthouse in downtown Phoenix, where the first trial took place and where the second will occur.

There, defense counsel and prosecutors clashed over the government’s motion to prevent the defense from questioning the “legitimacy of the prosecution.”

The government cited a quote from one of the defense attorneys during the first trial: “When you have the law and the facts on your side, you go to civil court, when you don’t, you take people’s money so that they can’t defend themselves and you bring a criminal charge.” 

EdMeese
Anti-porn crusader Ed Meese created what became the DOJ’s Child Exploitation and Obscenity Section, which is prosecuting Lacey and Larkin  (Pacific Legal Foundation via Flickr)

The government complained that the comment was “highly inflammatory” and “unfairly prejudicial,” stating that “the United States has lawfully seized some of defendants’ assets to preserve them for restitution and forfeiture should this Court decide to order such.”

Indeed, before Lacey and Larkin were arrested, the government seized nearly all of their assets including assets pre-dating the creation of Backpage.

The government liened their properties, preventing them from being sold or rented. And during SWAT-style raids, the FBI held their family members at gunpoint, confiscating their wives’ jewelry and removing art from the walls of their homes.

In an unprecedented action, the government also seized more than $10 million from attorneys’ trust accounts — money set aside to pay legal bills, forcing several private attorneys to remove themselves from the defense.

The result: three of Lacey and Larkin’s co-defendants now have court-appointed attorneys, paid for by taxpayers.

Bruce Feder, counsel for one of the co-defendants, argued that it was “black letter law” that the defense can challenge the legitimacy of the government’s prosecution, especially given the outlandish facts involved.

Another defense attorney pointed out that the defendants face possible prison sentences and that the prohibition would prevent effective assistance of counsel.

Carl Ferrer, who was Backpage’s CEO/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 his legal expenses (screenshot via Permanent Subcommittee on Investigations)

Such a ban might even keep the defense from questioning Backpage’s former owner and CEO, Carl Ferrer, about the substantial assets he was allowed to keep as part of his plea deal with the feds.

Austin Berry, a prosecutor with the U.S. Department of Justice’s Child Exploitation and Obscenity Section  — a controversial DOJ unit created in the 1980s by U.S. Attorney General Ed Meese to prosecute adult pornography — countered that the prohibition would not prevent the defense from questioning Ferrer about his financial motivations.

But, Berry said, “this notion of ‘government overreach,’ that is [jury] nullification.”

Jury nullification occurs when a jury follows its own sense of justice and rejects evidence pointing to a likely conviction.

Humetewa agreed, saying that a statement like the one cited by the government “borders on an appeal to the ‘conscience of the community.'”

Ultimately, her ruling was pretty limited. In her minute entry for the day, she granted the government’s motion only “to the extent it relates to the . . . statement at issue in the motion.”

Craigslist and Ferrer

Humetewa seemingly granted a proposed government ban on a reference to a 2008 meeting between Craigslist and various state AGs, in which Craigslist promised to begin charging for adult-themed ads, so as to give law enforcement a way to track illicit activity, specifically, sex trafficking.

This agreement was ballyhooed in press releases by the AGs involved and mentioned by Ferrer in an email chain, part of a government exhibit, wherein Ferrer called the development a “validation of our adult business model.”

Prosecutors argued that the statement was “inadmissible hearsay.” Larkin’s attorney Tim Eckstein disagreed, saying that it went to Ferrer’s “subjective understanding” at the time that Backpage was operating within the law.

The story of Craigslist is inextricably linked to that of Backpage (photo by Calton, via Wikimedia Commons)

Humetewa told Eckstein that he could refer to Ferrer’s general knowledge “of some ability of his organization to do whatever he is purported” to have done, but if he went down that path the government could object and she would rule accordingly.

Still, it seems unlikely that a discussion of Craigslist can be avoided. The site eventually removed its “adult” section in 2010 under pressure from state AGs, though some of those ads migrated to Craigslist’s personals section.

Craigslist remains an important part of the Backpage story. Backpage was created to compete with Craigslist and claw back some of the revenue Lacey and Larkin’s newspapers lost as a result of Craigslist’s initially allowing its users to post most ads for free.

Much of the remainder of the hearing involved striking dozens of potential jurors from the jury pool based on hardship or because of potential bias.

The government fought hard to keep some of the obviously-biased potential jurors in the pool as well as some with legitimate excuses, such as a grandmother who wanted to be present when her grandchild was born.

Humetewa mostly overruled the government on these cavils, leaving a jury pool of about 95 to 100.

There was an exchange, at one point, between Humetewa and Lacey’s attorney Paul Cambria, when Cambria noted that the jury instructions included a New York state law that criminalized “sexual conduct.”

Cambria said it called into question how the grand jury in the case was informed of prostitution law.

Humetewa complained that the defense already raised that issue. Cambria agreed the defense had asked for a review of the grand jury transcript before and been denied. But the appearance of the New York state law raised the issue of what was used by the grand jury, “a generic or state” definition of prostitution.

The judge ordered Cambria to submit a motion on the matter. Cambria also said he had objections to a First Amendment admonition included in the jury instructions, believing it conflicted with Ninth Circuit precedents.

Humetewa told Cambria that he could file his objections, and they would be taken up, along with the objections of other attorneys, during an afternoon conference on Aug. 4.

The time and money being wasted on the government’s lumbering attempt to put two muckraking, septuagenarian journalists behind bars for the rest of their lives is astounding.

In addition to jurors inconvenienced, there are seven government attorneys and staff, 10 attorneys for the six defendants, nearly 100 witnesses, and 2,000 government exhibits consisting of 19,000 documents, which prosecutors say could fill 100 large binders.

Doesn’t the government have some real criminals to chase? Drug smugglers? International terrorists? Corporate polluters?

Instead, it seems, the feds want to put journalists behind bars.

Please also see:
Backpage Judge’s Order on Pre-Trial Motions Favors Prosecution
and
U.S. Attorney’s Office Wants to Ban First Amendment in Free Speech Case

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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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