On Friday in the Backpage case, federal Judge Diane Humetewa denied a third defense motion for a mistrial, saying the prosecution hasn't poisoned the jury with child sex trafficking references "yet."
After a half-day of trial on Friday, Sept. 15 in Phoenix, wherein federal proecutors made numerous references to children and child sex trafficking in the Backpage case, Joy Bertrand, attorney for Joye Vaught, a former Backpage employee, renewed the defense’s call for a mistrial.
The day before, defense attorneys made two mistrial motions for similar reasons, but Humetewa denied the defense both times, adhering to a prior judge’s ruling that “sex trafficking” and “child sex trafficking” — both heinous crimes that the defendants are not charged with — are “subsets” of prostitution, aka, the world’s oldest profession, which involves two (or more) consenting adults engaged in sex for money.
On Friday afternoon, with the jury dismissed, Bertrand argued that the government’s references to children, including photos of teenagers, were “deliberately out of bounds” as the five defendants, including veteran newspaperman Michael Lacey, face underlying allegations of facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act.
Lacey, et al. are not charged with facilitating sex trafficking or of harming a woman or a child in any way. That’s why the government’s mention of children in this trial is so reprehensible.
“This is going to be the bulk of their case,” Bertrand told the judge. Bertrand estimated that 30 percent of the prosecution’s case “involves crimes against children.”
In Sept. 2021, similar, repeated references by the prosecution — in defiance of the orders of then-trial judge Susan Brnovich — caused a mistrial.
But Humetewa overruled Bertrand’s motion, finding that the government had yet to cross the line into prejudicing the jury.
Humetewa observed that “we’re only in day three and a half” of testimony by former Backpage owner/CEO Carl Ferrer, who turned state’s evidence just before the indictments were unsealed in April 2018. In return for his cooperation, the feds allowed Ferrer to plead guilty to one count of conspiracy in federal court and keep some of his assets. As a result, he is unlikely to do any time.
Prosecutors have been questioning Ferrer, their star witness, about exhibits that discuss or depict minors, projecting those exhibits on video screens in court so the jury can examine them.
“I don’t think that the government has pushed the envelope, yet,” Humetewa said.
She then recessed for the weekend.
The trial is scheduled to continue on Tues., Sept. 19, at 9 a.m.
During the day, prosecutors presented several exhibits involving minors, including a clip from a CNN documentary titled, “Selling the Girl Next Door,” in which reporter Amber Lyon places an ad on Backpage under a fake name.
Lyon’s ad reads, “New Booty in Town: My name is Winter and I would like to meet new people.”
Though the “poster’s age” is given as “28,” Lyon uses what she says is a photo of herself in a bikini when she was 14. The head was cropped out of the photo.
Interestingly, Ferrer testified that it was impossible to determine the age of the person in Lyon’s photo. And since there was nothing to indicate the poster was underage, the fake ad would not have been reported to the National Center for Missing and Exploited Children (NCMEC), the quasi-governmental agency that receives reports of suspect ads and follows up with law enforcement.
In a spring 2011 meeting between NCMEC and Backpage, NCMEC execs revealed that they recently posted fake ads on Backpage with photos of teenagers.
One of the examples of the NCMEC ads that prosecutors showed the jury gave the poster’s age as “18.” The ads’ photos were blurred, but they seemed to show clothed females.
One national ad supposedly purchased by NCMEC for $3,000 resulted in 30 phone calls, according to a NCMEC document shown to the jury. Ferrer said the ad was live for less than two minutes.
Internal Backpage emails also discussed a 2011 news story about a local businessman who was busted as part of a Phoenix Police sting, allegedly for trying to have sex with a minor for money.
When Backpage execs learned that the sting ads may have appeared on Backpage, they discussed reaching out to a Phoenix police contact to ask if they could be of help.
Which doesn’t sound like a bad thing. Much of what the prosecution presents as nefarious is actually evidence of Backpage’s owners and operators acting in good faith. Prosecutors even spin Backpage’s answering subpoenas from law enforcement within 24 hours as somehow self-serving and indicative of a criminal mindset.
Before the jury was brought in Friday morning, defense attorneys sparred with prosecutors over the exhibits, with Bertrand arguing that the prosecution’s mentions of minors were “cumulative” and unnecessary.
Lacey’s attorney, Paul Cambria, joined in objections to the exhibits, accusing prosecutors of a “calculated program of [repeating] children, children, children — exactly what we saw” in the 2021 mistrial.
Prosecutor Kevin Rapp countered that the government’s references to minors were merely mentions of a type of prostitution, “it’s not the child, but the prostitution” that the government wants to show, he claimed.
The judge noted the defense’s concerns and reminded them of the “limiting instruction” she gives the jury from time to time, telling jurors that the defendants are not charged with facilitating sex trafficking or child sex trafficking.
Gary Lincenberg, attorney for former Backpage exec Jed Brunst, objected to the limiting instruction, asking that it no longer be given, because it was a “trigger for the jury,” reminding them of the “pink elephant” in the room.
Humetewa said she would monitor the situation, adding that she planned to give it as a final instruction to the jury at the trial’s end, before jurors begin their deliberations.
Author’s note: I’ll be in Phoenix’s federal court on Tuesday to watch the Backpage trial, where Carl Ferrer is still on the stand being questioned by prosecutors. During breaks in the proceedings, I’ll post updates on Twitter/X @stephenlemons.
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