On Monday, U.S. District Court Judge Diane Humetewa in Phoenix scheduled a status conference in the Lacey/Larkin case for November 2 at 10 a.m., when attorneys for both sides will discuss dates for a new trial to take place sometime next year.

In a text entry to the federal docket, Humetewa ordered prosecutors and defense counsel to consider a date range for the retrial of January 31 through May 19, 2023.   The entry comes nearly a month after a Ninth Circuit panel denied a defense motion seeking to overturn Humetewa’s December 2021 decision not to dismiss federal charges against award-winning journalists Michael Lacey, Jim Larkin, and their four co-defendants.

Lacey and Larkin face up to 100 counts of facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act, including attendant money laundering and conspiracy charges.  Federal prosecutors are using the obscure, Kennedy-era law in an attempt to hold Lacey and Larkin vicariously liable for illegal acts allegedly connected to notices for massage, dating, and escorts posted by users to the classified ad site Backpage.com.

(The two men owned the site from 2004 to 2015, when they sold it to longtime CEO Carl Ferrer. Three years later, Ferrer turned state’s evidence, promising to testify as part of a sweetheart deal with the feds.)

A trial in September 2021 expected to last three months ended in a mistrial after just eight days due to prosecutorial misconduct. Government attorneys repeatedly mentioned and elicited testimony regarding heinous crimes that Lacey, Larkin, et al. are not charged with, such as rape, sex trafficking, and child sex trafficking.

Trial Judge Susan Brnovich ruled that prosecutors violated her orders not to emphasize such inflammatory topics, poisoning the jury in the process.

In fact, the lead prosecutor for the U.S. Department of Justice mentioned children or child sex trafficking more than 50 times in his opening statement, despite the fact the government has never alleged that Lacey, Larkin, or the others knew anyone connected to the 50 ads mentioned in the indictment.

The government cannot show that the accused saw the ads or even knew of them.

Ironically, one of the government’s lead witnesses, a California cop who investigated Backpage in 2015, admitted that the content of the ads was, on its face, legal, and protected by the First Amendment. Under cross-examination, the law enforcement official admitted that he had never made an arrest for prostitution based solely on an ad found on Backpage, and he didn’t know of anyone who had.

Brnovich later recused herself from the case without explanation, with Humetewa appointed to replace her, making Humetewa the fourth judge to sit on the case since its inception in early 2018.

Shortly after the mistrial, the defense moved for dismissal, arguing that a retrial would violate the U.S. Constitution’s prohibition against trying someone twice for the same offense, aka, Double Jeopardy. Humetewa denied the motion. The defense appealed, and oral arguments were held before a three-judge panel of the Ninth on September 2.

For the defense to prevail, the Ninth had to find that prosecutors intentionally provoked the defense into calling for a mistrial. But though the panel agreed that prosecutors had committed misconduct, it ruled that the misconduct “was not so egregious as to compel a finding of an intent.”

In an article on the ruling, Reason senior editor Elizabeth Nolan Brown lamented that a new trial in 2023 “would mean a sixth calendar year in which [the defendants’] lives are upended by this prosecution.”

Lacey and Larkin were secretly indicted in late March 2018. On Friday, April 6, 2018, they were arrested at gunpoint and hauled off for over a week in custody until finally allowed to bail out on bonds of $1 million apiece, despite a recommendation from pre-trial services that they be released on their own recognizance.

Since their arrests, they’ve been forced to wear ankle monitors 24-7 and ask permission to leave Maricopa County.

The feds seized basically all of their assets, including money that pre-dated Backpage, earned from their ownership of a successful chain of alternative weeklies. In a further effort to starve them into submission, the government seized more than $10 million in attorneys’ trust accounts, set aside for legal expenses.

Similarly, the FBI took possession of and effectively destroyed Backpage, its servers, and a mountain of exculpatory evidence along with it.

For years prior to Backpage’s takedown, federal and state courts consistently ruled that the content of the site’s ads was protected by the First Amendment and Section 230 of the federal Communications Decency Act, which generally grants immunity to interactive websites for so-called “user-generated content” posted by third parties.

Backpage cooperated with law enforcement to combat sex trafficking, receiving kudos from local, state and federal agencies, including the FBI. At the same time, Backpage refused demands from politicians and censorship advocates to cease publishing all adult-themed content.

Powerful enemies from their days as crusading journalists, like the late Sen. John McCain and his ambassador-widow Cindy, exploited the Backpage controversy to vilify Lacey and Larkin and have them wrongly prosecuted.

And yet, both men remain unbowed before the overwhelming might of the U.S. government, ready to prove their innocence before a jury of their peers.

Please also see:
Backpage’s Victories in Federal and State Courts
and
Ninth Circuit Panel Rejects Lacey/Larkin’s Double Jeopardy Appeal