Update  9/07/2021: Monday night, the defense filed a Motion for Acquittal and Mistrial, arguing that the prosecution’s disingenuous, inaccurate and needlessly pornographic  opening statement on Sep. 3 was so riddled with error that the jury has been “irretrievably tainted” by it. It reads: “If judgment of acquittal is not granted, then alternatively the Court must declare a mistrial . . . due to the government’s multiple improprieties…” All eyes on the judge now. Court reconvenes at 9 a.m. on Wed., Sep. 8. Please follow me for updates on Twitter @stephenlemons.

U.S. District Court Judge Susan Brnovich seemed frustrated late Friday afternoon in Phoenix’s federal courthouse as defense attorneys in the Lacey/Larkin case unanimously demanded a mistrial based on the inflammatory, prejudicial and sometimes X-rated material in the opening statement made by U.S. Department of Justice Trial Attorney Reggie Jones.

But it was the content of Jones’ incendiary and often off-topic presentation to the jury, which will cause Brnovich some serious migraines dealing with Jones’ behavior during his two-hour jeremiad.

For most of the monologue, the priggish prosecutor largely ignored the actual charges against veteran newspapermen Michael Lacey and Jim Larkin, which pertain to facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act due to their former ownership of the Craigslist-like classified ads site, Backpage.com. The feds have also charged Lacey and Larkin with money laundering and conspiracy.

Instead,  Jones dove right into the proverbial sewer, accusing Lacey, Larkin and their four co-defendants of crimes they have not committed and have not been charged with, the worst being child sex trafficking.

Jones opened and closed his anti-Backpage tirade by projecting headshots of two mothers whose children, he alleged, had been the subject of ads uploaded to Backpage.  Significantly, he did not connect either minor to any of the 50 ads involved in the superseding indictment.

Indeed, almost nothing in his opening statement referred to any of the 50 ads at issue.  Rather, Jones wielded a two-ton sledgehammer of misdirection, even referencing raunchy terms and X-rated photos that had been blocked from publication on the site as evidence of guilt.

He alleged that the defendants had general knowledge that illegality had taken place on Backpage, and that they had made tens of millions of dollars from a platform that “sold children for sex.”

Which is a bald-faced lie. Backpage was a platform, much like Twitter or Facebook, to which the public could upload content, in this case, ads for things like car sales, apartments, jobs and adult-oriented ads, the publication of which has been deemed 100% legal by the courts. Backpage charged users to post ads in legal categories. It basically sold temporary space on an interactive website.

It did not countenance children on the site or illegality of any kind, both banned by the site’s terms of use. And Backpage cooperated with law enforcement to such a degree that its absence has severely damaged law enforcement’s ability to protect endangered women and children.

Adult-Oriented Ads Are Legal

Ever the puritan, Jones defined prostitution broadly as “sexual services” in exchange for money, which is also bull.

As former Seventh Circuit Court Judge Richard Posner wrote in a 2015 ruling in favor of Backpage, “not all advertisements for sex are advertisements for illegal sex.” Posner went through a list of legal sexual services, “Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.)” He added escorts and BDSM to that legal category as well.

After all, if all the massage, escort, dating and adult ads on Backpage were illegal, why didn’t law enforcement arrest the millions of people that posted such ads to the site?

Throughout the speech, the prosecutor casually conflated legal sex work with illegal sex work, and consensual prostitution with sex trafficking. During the course of Jones’ hysterical screed, he mentioned children, child sex trafficking and things of this nature more than 50 times, by my count.

This was, of course, highly prejudical.

Unlike child sex trafficking, prostitution is a nuisance crime, committed by consenting adults and largely prosecuted by municipalities. Sex trafficking, per federal law, is far more serious and involves inducing an adult into commercial sex via force, fraud or coercion.

Minors cannot consent to sexual activity and are always considered to be trafficking victims if caught up in the sex trade. “Human trafficking” is an umbrella term that covers both sex and labor trafficking.

But to Jones, it was all the same. Backpage sold “women and children,” he claimed erroneously, and “served as a platform for  . . . children sold for sex.”

He painted Lacey and Larkin as nefarious, wealthy men, and kept repeating the refrain, “Why? Greed.”

In fact, Lacey and Larkin founded journalistic enterprises that continue to this day, and these entities were profitable long before Backpage was founded in 2004 as a competitor to Craigslist.org, which had disrupted the classifieds market, and sucked about $5 billion in revenue from the newspaper industry as a whole.

Jones presented pie charts claiming that Lacey and Larkin made tens of millions of dollars from Backpage, which itself was generating around $100 million per year at one point. But none of this was linked to the 50 ads in the indictment. And if it were a crime to make money, Donald Trump and Jeff Bezos would be sharing a cell right now.

Ironically, the “greed” in this case is on the government’s end. Through a process called “civil asset seizure” the feds have seized all of Lacey and Larkin’s assets, even those dating to before Backpage was created. The feds liened all their properties and seized assets set aside to pay their attorneys. This, despite the fact Lacey and Larkin are “innocent until proven guilty” in our system of justice.

And what the government has seized, the government wants to keep.

Reggie Shows His Porno Collection

Jones claimed credit card companies wouldn’t do business with Backpage because the site countenanced sex trafficking, ignoring the fact that MasterCard and Visa stopped processing Backpage transactions after being unlawfully threatened with prosecution by elected law enforcement officials, specifically Cook County, Illinois Sheriff Tom Dart.

As a consequence, Backpage was forced to accept payment through other legal means, such as Bitcoin, personal checks and money orders . Jones painted these as “deception,” though their use for payment is perfectly legal.

Perhaps the most ludicrous point in Jones’ preposterous PowerPoint presentation was when he exposed the jury to raunchy language and explicit, X-rated images that were not allowed to be published on Backpage.

Actually, this was an example of the legal content moderation that nearly every social media platform engages in. Facebook does it. Instagram does it. TikTok does it. And Twitter does it. Though in each case, verboten images and words often slip through the moderation process.

Jones topped off his pant-load of an opening statement with the accusation that in 2017, on the day Lacey appeared before a U.S. Senate committee investigating Backpage, Lacey ran into one of the mothers mentioned by Jones in a Senate hallway, and called her a “yahoo.” Apparently, the woman told the FBI this.

Well, I was at that Senate hearing, covering the spectacle for the Phoenix New Times, and I followed Lacey into the hall, where he was mobbed by press. I stood nearby as he bantered briefly with them and gave a quote to Reason magazine scribe Elizabeth Nolan Brown. Then I walked to the elevator with him, where he gave me a quote before departing.

I sure don’t remember ever seeing this woman near him. Nor does it sound like something he would say, especially around or to someone like her, unless his remarks were aimed at the politicians who questioned him that day.

After Jones’ statement, with the jury out of the courtroom, lawyers for the defense demanded that Judge Brnovich declare a mistrial, citing her own words regarding the Travel Act charges against the defendants.

For instance, in one ruling denying a motion to dismiss the indictment, Judge Brnovich wrote:

“[Defendants] were not indicted for facilitating the amorphous notion of ‘prostitution.’  They were indicted for facilitating (via publishing ads) on fifty distinct occasions where prostitutes, prostitution-related businesses, or other groups were involved in the business of prostitution.”

And during a hearing on a defense request that she recuse herself from the trial, Judge Brnovich stated the following:

“I think one of the key things in my reason for denying the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is about these individual defendants and whether they had specific knowledge of these ads as facilitating illegal activity.”

Jones’ opening argument contradicted these dictates. His speech was a broadside against Backpage generally, without addressing the specific intent spelled out in the very instructions that Brnovich read to the jury before Jones’ opening remarks.

Demanding a Mistrial

Larkin’s attorney Thomas Bienert was nearly apoplectic while moving for a mistrial, accusing Jones of having “tainted the jury” and calling the references to child sex trafficking “outrageous.”

“It was deceptive,” Biebert told Brnovich, adding, “You can’t unring this bell.”

When Brnovich seemed to come to Jones’ defense, characterizing it as just “an opening statement,” Gary Lincenberg, the attorney for one of Lacey and Larkin’s co-defendants, noted that the mothers and children Jones cited at the opening and closing of the statement were “not the subject of the 50 counts,” meaning those charges connected to the 50 ads.

“An opening statement is not irrelevant,” Lincenberg told her, calling Jones’ statement, “a blatant cause for mistrial.”

Brnovich noted that she had ruled previously that the prosecution could mention child sex trafficking if they did not use lurid details. She said at one point, “The government didn’t cross the line on that issue in my mind.”

The judge eventually asked for both sites to submit briefs on the issue. With less than an hour left on Friday, the defense decided to hold off on its opening statement till Sep. 8, when court will reconvene after the long weekend.

Earlier in the day, she served up yet another disappointment, denying a motion from Lacey’s attorney Paul Cambria, asking that the judge instruct the jury on First Amendment law.

Specifically, Cambria wanted her to tell the jury that the publication of online ads, including the publication of adult-themed ads, are presumptively protected by the First Amendment. It’s up to the government to prove otherwise.

At least, that’s the way the First Amendment is supposed to work in this country.

By the same token, a federal prosecution should not be a McCarthyite pitch-and-switch, wherein defendants are labeled child sex traffickers but charged with “facilitating” an act between consenting adults that more than half of Americans believe should be decriminalized.

Somewhere in Prague, Kafka’s rolling in his grave.

ICYMI:
Arizona Republic ‘Reporter’ Falsely Accuses Renowned Journalists of ‘Murder’ and Misreads Indictment
and
STATEMENT FROM MICHAEL LACEY AND JIM LARKIN ON THEIR UPCOMING TRIAL