On Friday, U.S. District Court Judge Susan Brnovich in Phoenix disappointed prosecutors in the Lacey/Larkin case by granting a defense motion to continue the trial’s start date, resetting it from May 5 to August 17.

Citing the “expansive scope” of the allegations against veteran newspapermen Michael Lacey and Jim Larkin and their four co-defendants, and “the scale and complexity of discovery in the case,”  Brnovich concluded that a “short continuance” was necessary for the defense to prepare for trial.

She also alluded to “the possibility of prejudice resultant from the recent unexpected unavailability of [one of the] defense counsel” — a matter filed by the defense under seal — as a rationale for giving the defense an additional couple of months.

Assistant U.S. Attorney Kevin Rapp had urged the judge to deny the request, arguing that the defense’s rationales for a delay were “insubstantial and unsupported.”

But Rapp’s objections were as effective as his cavils the last time the defense asked for a continuance. In response to that earlier defense request, on July 1 of last year, Brnovich issued her first order delaying the start of the trial, from January 15, 2020 to May 5.

Then, as now, the fault for the delay fell directly on the shoulders of the prosecution, which has engaged in a number of unconstitutional maneuvers in its zeal to stick Lacey and Larkin, two award-winning journalists now in their 70s, in prison for the rest of their lives.

Not the least of these nefarious tactics has been the indictment itself, which charges Lacey and Larkin with 100 counts of conspiracy, money laundering and the facilitation of prostitution across state lines in violation of the U.S. Travel Act, a federal statute designed to go after organized crime, not classified advertising sites.

Not only have government attorneys ignored the wording of the law in the indictment, they have employed a novel theory of “vicarious liability,” arguing that Lacey, Larkin, et al., be held responsible for the alleged criminal acts of others in relation to adult ads posted by Backpage’s users.

And since the government cannot demonstrate that Lacey and Larkin, who sold the site in 2015, had specific knowledge of specific ads out of the millions of listings, adult and otherwise, that once appeared on the site, prosecutors are pursuing a vague, Orwellian theory that the defendants possessed “generalized knowledge” that some of these listings posted by others can be linked to illicit acts.

Prosecutors have not been content to stretch and mangle the law to their dubious ends, they have also seized all of Lacey and Larkin’s assets, even those assets that could not have derived from Backpage, in an attempt to deny defendants their rights under the U.S. Constitution to effective representation

The DOJ also has seized bank accounts set aside to pay attorneys’ fees in the case, a highly unusual step, and one that led to two private attorneys for Lacey and Larkin’s codefendants withdrawing from the case.

These same codefendants were assigned federal public defenders, who then asked the court for a delay so they could get up to speed, a request Brnovich granted.

Adding to its list of horribles, the government effectively destroyed the Backpage website when the FBI seized it in April 2018, later refusing defense attorneys direct access to the system of servers that once maintained the site. During a three-day-long hearing last year, FBI agents admitted that they could have preserved the site offline in an easily-accessible “read-only” mode, but chose not to for still-unexplained reasons.

Instead, federal gendarmes confiscated and dismantled the servers without making a record of how they interrelated, making it highly unlikely the system could be reconstructed. According to court filings, the government busted a December 2018 deadline to turn over Backpage’s server system to the defense.

Prosecutors later turned over dozens of hard drives, purporting them to be a portion of the more than 100 severs for the site. However, defense attorneys continue to struggle to access this data, which is vital to countering the government’s allegations.

The recent defense motion to continue the trial makes the following points as to why this data is of great relevance to the defense:

• The government’s allegations in the [Superseding Indictment] sets forth at least 50 particular ads; the IT System contained information about particular ads and advertisers, as well as relevant potential historical information about those same ads and advertisers.

• The SI makes broad allegations about common practices at Backpage, alleging for example that Backpage utilized reciprocal links to known prostitution sites and agreed to post ads of known pimps and prostitutes; the IT System contained information indicating banner ads and relationships with particular customers.

• The SI alleges Backpage laundered money by using particular forms of payment; the IT System contained information about costs and payment methods in general, as well as for particular ads and advertisers.

Defendants cannot adequately prepare for trial without review of and access to the significant information on the IT System.

The government continues to engage in what the defense describes as “voluminous” document production, even as the case comes closer to trial, dumping another 335,000 pages of discovery on the defense this past December, and more recently, another 10,000 pages that have sent defense counsel “scrambling” to review the new material, according to a February 13 defense filing.

Prosecutors have also made significant last-minute changes to its long list of witnesses and completely reorganized its exhibit list, developments that have “hobbled the defense,” per that same February 13 reply brief.

The defense had asked the judge to give them till October to un-hobble themselves, but Brnovich set August 15 as the new date when this colossal First Amendment war will begin, with its sweeping implications for free speech, both on the internet and off.

The government has estimated that the Lacey/Larkin trial could take up to twelve weeks to conclude: a conservative prediction, to be sure, for a case with millions of documents in discovery, recondite technical and legal issues and nearly 100 government witnesses to boot.

For more on the case, please read:
Prosecutors in Lacey/Larkin Case Don’t Want Defense To See Grand Jury Instructions, Transcript: Why?
and
Lacey/Larkin Judge Tosses Motion Alleging Feds Poisoned Grand Jury Proceedings