At the Backpage trial in Phoenix’s federal court on Tuesday, prosecutors continued to introduce prejudicial material into the trial involving sex trafficking and child sex trafficking, drawing yet another mistrial motion from defense attorneys.

It was the defense’s fourth mistrial motion since testimony by the government’s star witness, former Backpage.com owner/CEO Carl Ferrer, began last week.

Defense attorneys point out that their clients are not charged with heinous crimes like sex trafficking, which involves either minors, or adults induced into commercial sex via force, fraud, or coercion.

Instead, veteran newspaperman Michael Lacey and four others face charges related to “facilitating” misdemeanor state prostitution offenses in violation of the U.S. Travel Act. Unlike sex trafficking, prostitution concerns commercial sex between consenting adults.

Joy Bertrand, attorney for former Backpage employee Joye Vaught, made Tuesday’s mistrial motion. Bertrand pointed out the prosecution had introduced 20 exhibits that morning, all mentioning sex trafficking or child sex trafficking in one way or another.

Bertrand told federal Judge Diane Humetewa that the government’s actions were “intentional.” Any relevance the exhibits had was outweighed by the prejudice her client would suffer.

Notwithstanding prosecutors’ claims, “at this point, [the trial] is going to be about child sex trafficking,” said Bertrand.

Lacey’s attorney Paul Cambria joined Bertrand’s motion,  noting that the first Backpage trial in 2021 ended in a mistrial just three days in, after prosecutors repeatedly mentioned or elicited testimony about sex trafficking and crimes against children, in violation of the orders of then-trial judge Susan Brnovich.

“We’re far beyond the prejudice in the first trial,” Cambria said.

He referred to a letter from dozens of state Attorneys General just entered into evidence by the prosecution. It accused Backpage of the “facilitation of the sexual exploitation of children,” calling the site a “hub” for the “trafficking of minors.”

Bruce Feder, attorney for former Backpage exec Scott Spear, also joined the motion. He noted that after the 2021 mistrial, the government argued that its misconduct had not been intentional. By employing the same strategy a second time around, the government had given the lie to that claim.

Feder asserted that there should be “a dismissal for misconduct,” instead of a mistrial.

But Judge Humetewa wasn’t having it. She called the 2021 mistrial “water under the bridge,” saying that “the prior trial was based on completely different evidence.”

Assistant U.S. Attorney Kevin Rapp cited a previous ruling by Brnovich in the case, which held sex trafficking and child sex trafficking to be “subsets” of prostitution.

That definition is problematic, as a majority of Americans believe prostitution should be decriminalized. Meanwhile, most people recoil in horror and disgust when confronted by child sex trafficking.

Rapp told the judge that he and his fellow prosecutors were concerned only with alleged prostitution on Backpage. “It just happens to be child prostitution,” he added, unmelted butter firmly in mouth.

Humetewa denied the defense’s mistrial motion, finding the exhibits in question to be “relevant.”

Still, she said, the government “must tie each of the exhibits” to some of the counts in the indictment.

‘Smearing’ Lacey

Lacey’s longtime business partner, ex-Backpage co-owner, and co-defendant Jim Larkin died in tragic circumstances on July 31. This left Lacey the marquee name in the case, the one prosecutors want most to convict.

This prosecutorial tunnel vision has led government lawyers to cite statements and emails from Lacey that, to the non-prosecutorial mind, are not incriminating.

For instance, under questioning by Rapp, Ferrer described a 2011 meeting between Backpage and the National Center for Missing and Exploited Children (NCMEC) in Washington, D.C., during which Lacey and NCMEC CEO Ernie Allen exchanged words.

According to Ferrer, Allen interrupted a PowerPoint presentation on Backpage’s adult-themed ads, saying, “C’mon, these ads are prostitution.”

Lacey responded to Allen, telling the ex-cop his focus on prostitution was “mission creep.” NCMEC should be focused on children. Prostitution was “not in their mandate.”

Of course, Ferrer’s testimony is colored by his plea deal with the feds. In return for depicting Backpage and its owners in the worst possible light, he will likely serve zero time for the one federal conspiracy count to which he’s pled guilty. The deal also allows him to keep some of his assets.

Even if Lacey said what Ferrer’s alleged, or something like it, so what? Prostitution is not part of NCMEC’s mandate, nor should NCMEC be dictating what consenting adults do behind closed doors.

Rapp also asked Ferrer about an email wherein Lacey stated that the actual number of child sex trafficking cases was likely far lower than a bogus statistic of 100,000 to 300,000 children being trafficked in the U.S. The study pushing that absurd stat was seriously flawed. It’s been so thoroughly debunked, that its authors have disavowed it.

Sex trafficking “is a problem, not an epidemic,” Lacey wrote. Despite the hyperbole from non-governmental organizations with a stake in the so-called “trafficking panic,” Lacey’s characterization remains 100 percent true.

Along these lines, Ferrer discussed with Rapp a draft opinion piece by Lacey, arguing that Backpage was “part of the solution” when it came to the exploitation of women and children.

Ferrer said he was asked by his bosses to make comments on the proposed editorial. Ferrer suggested deleting the following paragraph:

For the very first time, the oldest profession in the world has transparency, record keeping and safeguards. Driving adult activity back into the shadows doesn’t end the activity, it ends the safeguards.

One problem Ferrer had with the graph: he didn’t “want to suggest that we would eliminate our adult section.”

Ferrer’s reasoning is revealing as to his state of mind at the time. It also does not acknowledge that there are legal forms of sex work.

Yet, Lacey’s statement was prescient. According to a 2021 GAO report, the takedown of Backpage further endangered vulnerable women and children, removing a valuable tool for law enforcement.

Rapp introduced an email between Lacey and his ex-wife concerning the claims being made against Backpage. In it, Lacey wrote, “Jim [Larkin] and I believe in legalized prostitution and spend millions trying to keep underage [persons] off the site.”

It seems odd to this non-lawyer that Ferrer would be asked to comment on an email he’s not mentioned in or even cc’ed on.

Even odder, Rapp declared that Lacey’s statement was an “admission” of some kind.

Yeah, maybe an admission of common sense.

The First Amendment allows us to advocate for abolishing society’s prohibition on prostitution. And it is to Lacey and Larkin’s credit that they spent “millions” trying to keep minors off the site.

Paint It Black

Lawyers like to say that they can argue it square,  they can argue it round. And when it comes to Backpage’s prosecutors, they can argue it square and round at the same time.

Over the course of Backpage’s history, moderation efforts changed. Terms of use and policies about content were in flux. There is nothing unusual about this. It was and is part of content moderation on interactive websites — all interactive websites.

But in the course of Ferrer’s testimony, he and Rapp portrayed these issues as being unique to Backpage, issues like aggregation, reciprocal links, and content moderation.

These practices are not illegal. In fact, Congress passed Section 230 of the CDA in part to incentivize moderation.

So it’s bizarre and disturbing to hear a prosecutor and his chief witness claim that when Backpage made its moderation tighter, it did so to hide evidence of illicit sex and coach users on how to get around the filters.

But at the same time, these edited ads were “blatant prostitution ads” according to the superseding indictment.

Huh?

Backpage hired Hemnshu Nigam, a former Assistant U.S. Attorney and NCMEC board member to help establish safety standards. The site eventually banned nudity, sex-for-money language, links to The Erotic Review, and certain terms indicative of sexual acts.

It cooperated with law enforcement, answering subpoenas within 24 hours. Suspect ads were reported to NCMEC. Backpage execs testified in criminal trials against real pimps and traffickers. It worked with the FBI and countless local law enforcement agencies, earning thanks, praise, and awards.

But according to Ferrer, this was all a “show,” a pretense, a “sham.” Backpage was “slow walking” critics and cops.

At one point, Ferrer opined on what a subordinate in a 2011 email called a “Maxim magazine” standard. Ferrer called this a “relaxed,” more “permissive” approach to moderating photos.

Maxim is known for steamy pics of models and actresses, less explicit than Playboy and more akin to GQ, the sort of men’s magazine that comes with a free sample of musky cologne and recommendations on the best sports cars to spot hotties in.

During his dialogue with Carl, prosecutor Rapp offered a number of photos of scantily clad women, some of which made it on the site, some of which did not. None were really that explicit.

In the era of Chaturbate and OnlyFans, only a prudish, tightly-wound federal prosecutor would raise an eyebrow at ‘em.

Similarly, one exhibit Rapp entered was a list of 120 “banned” terms on Backpage. Terms like “got milk?” “cum,” “candy stick,” “getting down,” and the ever-infamous — at least to a prosecutor — GFE or girlfriend experience.

Nearly all social media sites have lists of banned terms, URLs, emails, you name it. Just like on other sites, moderation rules at Backpage varied. Topless women were OK at one time. At another time Backpage got so strict that it wouldn’t allow photos of female nipples.

But according to Rapp and Ferrer, any moderation by Backpage signaled an evil intent.

Author’s note: I’ll be at the Sandra Day O’Connor U.S. Courthouse in downtown Phoenix on Wednesday to watch the Backpage trial, where Carl Ferrer is still on the stand being questioned by prosecutor Kevin Rapp. During breaks in the proceedings, I’ll post updates on Twitter/X @stephenlemons.

Please also see:
Backpage Judge Shoots Down Third Mistrial Motion, Saying Prosecution Hasn’t Pushed Envelope ‘Yet’
and
Republic Columnist Cites GAO Report Showing Backpage Takedown Hurt Women, Children