Throw the first stone? Backpage prosecutor Austin Berry sure would. Meanwhile, defense counsel Joy Bertrand gives a brilliant summation.
This post repurposes recent Twitter/X reports from the #BackpageTrial in Phoenix’s Sandra Day O’Connor U.S. Courthouse. For regular updates, please follow the writer @stephenlemons.
Fear the Red Pumps
Joy Bertrand, attorney for ex-Backpage.com employee Joye Vaught, gave a brilliant closing statement on Wed., Nov. 1, arguing that the government’s case is “littered with reasonable doubt,” starting with the adult ads that appeared on Backpage, which the jury cannot presume were for prostitution based just on risqué language and racy pics.
To make her point, Bertrand pulled out a pair of red high-heeled shoes, saying she didn’t get her first pair of red shoes until later in life because she was taught as a kid that “only whores wear red shoes.” The message: You can’t make assumptions about women based on their clothing or lack thereof.
Bertrand made an excellent argument for rejecting the government’s case, which accuses Vaught and four others of somehow “facilitating” misdemeanor prostitution offenses in violation of the U.S. Travel Act. She described the campaign against Backpage as part of a “crusade” against prostitution by powerful politicians and influential organizations. She pointed out that Backpage “started out as part of a newspaper” and it would not “adopt all of the demands of the powerful and the elites.”
The First Amendment protected Backpage (or should have), and because of the First Amendment, all speech is “presumed protected,” she said. If an adult ad does not explicitly offer a sex-for-money proposition, it is protected by the U.S. Constitution.
Of course, she is right. Which makes the indifference of the Internet giants (and most MSM) to this case inexplicable. A guilty verdict will further chill speech online, because Section 230 of the Communications Decency Act does not protect social media platforms from federal criminal law regarding speech posted to those platforms by users. There are A LOT of federal criminal laws that could apply to internet service providers. And the only thing standing in the government’s way is the First Amendment.
Bertrand said The Founders crafted the U.S. Constitution to check the power of government and give the people protection from the government’s overwhelming might. They “placed the Constitution between you and the prosecution.”
About a remark made by prosecutor Kevin Rapp in his closing, to the effect that the government deserved a guilty verdict from the jury, she had this to say:
“Nothing is more frightening than a prosecutor stating that they have the right or entitlement to . . . a guilty verdict. And combined with the fact that this particular prosecution seeks to turn the First Amendment on its head, this prosecution gives me chills and not in the fun, spooky Halloween way.”
She noted Backpage’s written response to suggestions from the National Center for Missing and Exploited Children (NCMEC). It’s a lengthy letter from an attorney and Village Voice Media board member Don Moon, which the government fought to keep out of the trial.
She summarized it thus, “We’ll help you [in your mission], but we draw the line at the First Amendment.”
Ministry of Truth
She talked about reasonable doubt as “any doubt that’s reasonable,” adding “featherweight doubt is reasonable doubt.” She talked about the government’s star witness, Carl Ferrer, saying he obviously wasn’t telling the truth somewhere, as his past statements don’t match his testimony.
Ferrer had and has every reason to do exactly what the government wants, Bertrand noted. He gets to keep his mansion, his Mercedes and has access to a couple million dollars. If he makes the prosecutors happy, he likely will get zero time for the one count he pled guilty to. The reasonable doubt “all comes from Carl Ferrer trying to save his skin.”
Ferrer couldn’t even pronounce Vaught’s first name correctly, and had trouble identifying her in court, though there were only two women at the defense table, Bertrand and Vaught.
“This guy never met her,” Bertrand said. How was she supposed to “conspire” with him?
Vaught helped the police and knew about the praise from law enforcement, like the FBI giving Ferrer and Backpage a certificate of thanks.
So, Bertrand asked, wouldn’t Vaught think: “We must be on the up and up, Carl got an award signed by Robert Mueller”?
Bertrand commented on how the prosecution was apt at twisting something like responding to subpoenas within 24 hours into evidence of criminality.
She concluded by putting this quote from George Orwell’s 1984 before the jurors on the monitors in front of them:
“The Ministry of Peace concerns itself with war, the Ministry of Truth with lies, the Ministry of Love with torture and the Ministry of Plenty with starvation. These contradictions are not accidental, nor do they result from ordinary hypocrisy: they are deliberate exercises in doublethink.”
The government’s rebuttal, given by Assistant U.S. Attorney Austin Berry cast all the defendants, even Vaught, as evil and every action by them as done in furtherance of this fictional conspiracy they supposedly belonged to.
I will have more to say about the totalitarian nature of his summation and its many misstatements in a coming post.
(Jury deliberations are expected to begin Tuesday of next week.)
Governmental overreach is a frightening thing. The free speech organizations and their satraps who shirked the fight against this prosecutorial abuse of power should be forever shamed by their cowardice.