On Friday, at the final pretrial hearing in the Backpage case, federal Judge Diane Humetewa in Phoenix shot down a defense suggestion that the prosecution not use the terms “sex trafficking” and “child sex trafficking” during the Aug. 29 trial of award-winning journalist Michael Lacey and four others, calling the position a “non-starter.”

Humetewa also overruled a defense objection to her proposed jury instruction on the First Amendment, despite the defense’s claim that the instruction’s wording does not comport with precedents set by the Ninth Circuit Court of Appeals.

Most of the two-hour hearing dealt with establishing a jury pool of 110 persons, out of which 16 will be plucked to serve as 12 jurors and four alternates. Humetewa said she added questions to the jury questionnaire aimed at finding out if potential jurors knew of the recent, tragic death of veteran newspaperman Jim Larkin and if it would affect their ability to be impartial.

In 2018, the U.S. Justice Department indicted Larkin, Lacey, and four others on allegations that they “facilitated” prostitution via ads for escorts, massage, and dating posted to the classified listings website, Backpage.com, by the site’s users. Lacey and Larkin, pioneers of alternative journalism, owned Backpage from 2004 till 2015.

For nearly six years, Lacey and Larkin have fought the federal government to a standstill, notwithstanding the prosecution’s seizure of nearly all of their assets as well as attorney trust accounts set up for their defense.

The case first went to trial in Sept. 2021 and ended in a mistrial after just three days of testimony due to egregious prosecutorial misconduct.

The retrial was scheduled for Aug. 8. Larkin’s death occurred on July 31. So the court delayed the beginning of the trial until Aug. 29.

Humetewa said that mere knowledge of Larkin’s death alone would not necessarily disqualify a juror. She described her plans to question those jurors who indicate knowledge of Larkin’s demise outside the presence of the other jurors.

Part of the hearing focused on the phrases “sex trafficking” and “child sex trafficking,” which a previous federal judge on the case, Susan Brnovich, allowed to be mentioned in a limited fashion during the first trial as supposed “subsets” of prostitution.

In defiance of Brnovich’s limiting orders, prosecutors repeatedly mentioned or elicited testimony about sex trafficking, which involves either minors, or adults induced into commercial sex due to force, fraud, or coercion.

As a result, Brnovich declared a mistrial, finding that the prosecution had poisoned the jury. She later recused herself for unknown reasons.

During Friday’s hearing, Humetewa said “sex trafficking” and “child sex trafficking” were “permitted terms.” When the phrases are used by a witness or in an exhibit, she added, they must be related to the charges in the indictment, which alleges that the defendants “facilitated” misdemeanor state prostitution offenses in violation of the U.S. Travel Act.

And when a witness uses the term “sex trafficking,” Humetewa said they should be asked what they believe that term means. The defense bid to exclude the terms was a “nonstarter,” since the prosecution could not move forward otherwise. She asked the defense to respond to a recent prosecution proposal to limit the use of the words.

Lacey’s attorney Paul Cambria demurred, telling the court that “to throw these terms around is prejudicial,” pointing out that it’s what caused the 2021 mistrial.

“It’s a problem,” Cambria said. “It’s very typical [of prosecutors] to try to inject children into a case like this . . . There is no charge [involving] children here. There is a special charge for that.”

Humetewa responded that the court had reiterated its admonitions to the prosecution about the use of those terms.

“We’ve gone over this issue ad nauseam,” she said.

FIRST AMENDMENT RULES

The court also discussed Cambria’s objections to Humetewa’s proposed First Amendment admonition to the jury, which may be given at the end of trial, before the jury begins to deliberate.

Humetewa had amended her initial draft of that statement, reading it aloud in court:

All speech is presumptively protected by the First Amendment to the United States Constitution. However, the First Amendment does not protect speech relating to illegal activity. Prostitution is illegal in 49 states and most of Nevada. Therefore, the First Amendment does not protect advertisements or solicitations for prostitution. It is the government’s burden to establish that each of the ads alleged in this case is an ad for prostitution and not for another purpose, such as an ad for escort, dating or massage service. You may consider any direct or circumstantial evidence in assessing whether any of the charged ads in this case are to promote or facilitate an act of prostitution.

Cambria objected to the wording, saying the statement was “lacking” as “the Ninth Circuit consistently said that the speech itself must propose an illegal activity — that is a critical component.”

Publishers “can only be responsible for words,” Cambria argued. All speech is protected “unless it is illegal on its face,” which is “consistent with a number of Supreme Court decisions.”

Indeed, how can a publisher be criminally liable for language that is legal on its face? How would he or she know that the vague language in an adult-themed ad would result in an illegal act?

In the first trial, the prosecution’s lead witness, Brian Fichtner, a special supervisory agent with the California Attorney General’s Office, initially testified on direct examination that the escort listings on Backpage were all “blatant prostitution” ads.

On cross-examination, Fichtner sang a different tune. He admitted that escorts are legal and regulated in California and that he could not make an arrest for prostitution based on the ads on Backpage alone. In fact, he knew of no one who had.

He conceded that there was nothing illegal about the language in the ads or the sometimes risque photos that accompanied them. He even admitted that sex workers have First Amendment rights.

Fichtner is on the prosecution’s witness list for the second trial.

But Humetewa overruled Cambria’s objection, saying it was “possible the court won’t give a First Amendment instruction,” even though that is “what the court intends to do at this point.”

The judge also denied a creepy request from the prosecution, asking that all witnesses be photographed for the benefit of the jury, so the jurors could remember who testified.

Humetewa said it would be up to the lawyers on both sides to remind jurors of testimony in their respective closings.

NO PLEA DEALS

The prosecution insisted on a hearing before a magistrate judge to put the government’s already-rejected plea deals on the record and force the defendants to publicly state that they rejected these offers.

So, after Humetewa concluded her hearing, the defendants and their attorneys shlepped over to the courtroom of Magistrate Judge Deborah Fine

There, Assistant U.S. Attorney Andrew Stone ran through the various charges and their possible maximum sentences.

All five defendants face 50 charges of “facilitating” prostitution under the Travel Act and a related conspiracy count.

Each of those charges carries a maximum sentence of five years in prison, Stone said. And it was possible the ultimate sentence could be longer if a defendant was found guilty on all charges.

Lacey and two Backpage executives also face multiple counts of money laundering and conspiracy to commit money laundering, each carrying a maximum sentence of 10 or 20 years in prison.

The three men were offered a deal involving the forfeiture of all their assets and a possible five-year sentence if they pled guilty to one count of conspiracy to “facilitate ” prostitution.

Each of them publicly rejected the offer.

The two other defendants, a man and a woman who were employees of Backpage, faced only the 50 Travel Act charges and a conspiracy count. Prosecutors offered the man a stipulated sentence not to exceed 12 months and a day if he pled guilty to the conspiracy count.

Appearing telephonically, he said no.

The government wanted the woman to plead to one conspiracy count, with her sentencing deferred for 24 months. If she abided by the prosecution’s conditions, the government would move to dismiss the charge, Stone said.

The woman also appeared telephonically. She also said no.

Further details of these proposed plea agreements are not public, so it’s not known if they involved testifying against the others. Though it’s a fair bet that they did.

Was Larkin offered a similar plea deal? It was not mentioned in court, but he likely was, and it may have included a requirement that he testify against his co-defendants.

It’s a common expression that innocent people plead guilty every day.

But in the case of Lacey, Larkin, and the others, six innocent people refused to play that game.

Please also see:
Reporters, Friends, and Admirers Mark the Passing of Jim Larkin