Update: On Dec. 8, 2021, four days after the hearing described below, a two-judge panel of the Ninth Circuit U.S. Court of Appeals, headed by Chief Judge Sidney Thomas, ordered federal prosecutors to respond to the defense’s request for a “writ of mandamus,” which would order U.S. District Court Judge Susan Brnovich to remove herself from the case.

The order reads, in part:

“This petition for a writ of mandamus raises issues that warrant an answer. See Fed. R. App. P. 21(b). Accordingly, within 14 days after the date of this order, the real party in interest shall file an answer. The district court may elect to file an answer with this court or to issue a supplemental order and serve a copy on this court. Petitioners may file a reply within 7 days after service of the answer(s). The petition, answer(s), and any reply shall be referred to the next available motions panel . . . The Clerk shall serve this order on the district court and District Judge Susan M. Brnovich.”

On Dec. 4, Judge Brnovich shot down a defense request for a stay until the Ninth indicated how it would proceed. For more on the request for recusal, which argues that the law requires the Judge to do so because of an appearance of partiality, due to comments made by her husband, Attorney General Mark Brnovich, regarding Backpage, please see, “Lacey and Larkin Ask Ninth Circuit to Order Judge Brnovich’s Recusal.”

Please also read defendant Michael Lacey’s response to Judge Brnovich’s denial of the recusal request, here: “A Tourette’s Quinceanera.”

 . . .

In an extraordinary statement during a hearing in Phoenix’s federal court on Friday, Dec. 4, U.S. District Court Judge Susan Brnovich claimed that inflammatory comments made by her husband, Attorney General Mark Brnovich, about Backpage.com’s alleged guilt in facilitating illegal sex work, were unimportant and did not warrant her recusal.

“This case is not about Backpage,” she contended at one point during an hour-and-a-half telephonic conference call, an assertion that might come as a surprise for anyone familiar with the federal government’s superseding indictment in the case, which mentions Backpage more than 600 times.

Rather, Brnovich said the case was about whether the six defendants, who include veteran newspapermen and former Backpage owners Jim Larkin and Michael Lacey, had “specific knowledge” that the adult-oriented ads mentioned in the indictment were “facilitating illegal activity.”

That, too, seemed a startling statement given that the prosecution’s theory of the case from jump has been one of vicarious liability, in which the government seeks to hold Lacey and Larkin responsible for alleged illicit acts supposedly connected to 50 ads cited in the indictment — ads never seen by Lacey and Larkin and posted by persons unknown to them, among the millions that once existed on the site.

Prosecutors have argued that all they have to do is show that the defendants possessed some ill-defined, generalized knowledge that wrongdoing was occurring on Backpage. Based on this weak sauce, the government indicted Lacey and Larkin on 100 counts of conspiracy, money laundering and the facilitation of prostitution in violation of the U.S. Travel Act.

The defense has filed several motions to dismiss, observing that both First Amendment case law and the Travel Act require the “specific knowledge” that Judge Brnovich mentioned on Friday.

But the judge has consistently ruled in favor of the government on these motions.

Asked to comment, Lacey made note of the contradiction.

“I do not understand the distinction she’s making between the defendants and Backpage,” he said. “It seems as if, for the purposes of the prosecution, they are one and the same.”

Elephant Du Jour

Ostensibly, Friday’s hearing was supposed to be dedicated to whether or not proceedings in the Lacey and Larkin case should be stayed pending the outcome of a defense request, asking the Ninth Circuit Court of Appeals to order Judge Brnovich to remove herself from the case.

Ruling from the bench at the end of the Dec. 4 teleconference, Judge Brnovich denied the defense request for a stay, finding that the defense had failed to show a likelihood of success on its petition to the Ninth Circuit for a writ of mandamus.

She also ruled that the defendants did not face “irrevocable harm,” as they could always seek an appeal, if convicted. (That’s cold comfort to Lacey and Larkin, both septuagenarians, who face spending the remainder of their lives in prison, if found guilty.)

The judge suggested that she might feel differently if she knew the Ninth Circuit was determined to take on the case or had an idea of how long the petition process might take. She set a status conference for Jan. 4, to see if the Ninth Circuit has given any signal of what it might do by then.

Otherwise, the hearing spent a lot of time addressing the pachyderm in the courtroom: the fact that Judge Brnovich’s husband, the chief law enforcement officer for the state of Arizona, has publicly expressed the opinion that Backpage is guilty and weighed in on issues that will be disputed at trial.

Larkin’s attorney Thomas Bienert did most of the talking for the defense during the hearing. He emphasized that the defendants were not alleging actual bias on the part of the judge. Rather, the relevant federal statute requires that a jurist disqualify themselves if their impartiality “might reasonably be questioned.“

Bienert observed that as “a matter of common sense,” AG Brnovich’s comments about Backpage were “an eyebrow raiser.”

In September of this year, a member of the defense team came across an AG office booklet titled, Human Trafficking, Arizona’s Not Buying It.  Featuring a photo of the AG and a “letter from Mark,” the booklet apparently was published two months after Lacey and Larkin’s dramatic arrests by the FBI and the unsealing of the indictment against them.

The booklet, which can still be found online, presumes Backpage’s guilt, defining the site as “an online advertising site used frequently to purchase sex,” and wherein “over 300 ads are placed each day in Phoenix on Backpage.com for adult services – with an estimated 20% for girls under 18.”

It’s important to note that none of the defendants are charged with sex trafficking — a variant of human trafficking — that involves either children in commercial sex or adults induced into the sex trade through force, fraud or coercion.

Regardless, the prosecution continues to slander the defendants with this allegation. The AG, therefore, asserts as fact issues to be determined at trial, using bogus statistics to do so.

After the defense discovered the booklet, it uncovered numerous other incidents where either the AG, his employees or organizations that his office has partnered with have made inaccurate and wildly prejudicial statements about Backpage, and by extension, the defendants.

In Aug. 2017, Brnovich, along with 48 other state and territorial AGs, signed a letter to Congress that asked for revisions to Section 230 of the CDA, so the AGs could each seek to prosecute Backpage, which they accuse of having a business model constructed “around advertising income gained from participants in the sex trade.”

The missive also accused Backpage of “facilitating — and profiting from” child sex trafficking, a claim Brnovich repeated in a press release touting the letter, which he amplified with a tweet.

Since the defense found the booklet, Bienert says he has seen two videos online that further suggest a lack of impartiality on the part of the judge. In one, an election ad, the judge, then on the state superior court, expresses her admiration for her husband and talks about their shared values.

Bienert said that in another, the AG discusses his office’s stance on human trafficking and sex trafficking, saying it should be “aggressively prosecuted,” that his office is “working with federal officials” on the issue, and that his office is “the tip of the sword” when it comes to such prosecutions.

“I would highlight those,” Bienert said. “But all of the things that we noted . . . are things that would cause a reasonable person  . . .  concern about whether this court is the right court for this case . . . [and] about whether it can be impartial.”

Cognitive Dissonance

Bienert and other defense attorneys on the conference call challenged the judge’s previous finding that it was “unbelievable” that the lawyers had discovered the AG’s booklet in Sept. 2020, despite the sworn statements from defense attorneys for six separate law firms.

In fact, Bienert avowed that he had been unaware of these specific statements about Backpage by the judge’s AG husband until recently.

“We don’t have an obligation to investigate the family of the judge,” Bienert told the judge, saying that this “wasn’t the law . . . nor should it be.”

Bienert also picked up on the judge’s admission that she had looked into the possibility of bias and found none.

Indeed, in her October order, the judge wrote:

“When this case was originally assigned, the Court reviewed the case for any possible issue for recusal and found none. AG Brnovich was not involved in the investigation or prosecution of this case and the Court was aware of his stance against human trafficking but there was no tie to this case or any of the defendants.”

But Judge Brnovich had never previously revealed this to the parties in the case.

“You didn’t tell any of us this,” Bienert admonished. “You should have told us.”

He noted that she was the third judge on the case, with the other two self-recusing for unstated reasons. The defense did not investigate the two judges prior, nor did they do so with Brnovich.

Judge Brnovich seemed to backpedal at times. She said that she apologized “if it came across” that she was questioning the veracity of defense counsel.

She insisted that she had not withheld information from defense counsel.

“That’s simply not true,” she said.

Instead, she said she made sure that her AG husband was not involved in the prosecution of the defendants. The “other issues” involved seemed “tangential” to her.

That is “why I made no disclosures,” she said.

Assistant U.S. Attorney Peter Kozinets spoke on behalf of the prosecutors. But, per Judge Brnovich’s instructions, he largely restricted his comments to dry points of law.

Kozinets argued that if the judge granted the stay, it would be the sixth continuance in the case, and an indefinite one. Such a delay would be “inherently detrimental to the administration of justice,” he claimed.

Left unanswered, however, were practical considerations now further complicated by the knowledge of AG Brnovich’s prejudiced statements against Backpage, like the process of voir dire: the vetting of a jury for what is expected to be a hotly-contested, 12-week trial, with at least 100 witnesses for the prosecution and a voluminous number of exhibits.

“How do I do voir dire in front of your honor?” asked Bienert, particularly when it came to asking potential jurors about their knowledge of her husband’s statements.

Bienert noted that if the shoe were on the other foot, and he were the defendant in a case where the judge’s AG husband had made disparaging statements about the opposing side, “my adversary wouldn’t like” the fact that Bienert might “have an extra boost” with a juror as a result.

Voir dire was only one of many areas where the defense faced possible prejudice due to an appearance of partiality on the judge’s part. Others included various outstanding motions the judge needed to rule on, as well as the reality that many of the prosecution’s witnesses have some connection to Brnovich’s office.

Such issues belie the absurd statements made by federal prosecutors in their pleadings, insinuating that the defense is somehow sexist for raising the likelihood of an appearance of bias based on the AG’s public positions.

Because if the roles were reversed, and Mark Brnovich was a federal judge and Susan Brnovich, a state AG with strong opinions about the accused, the issues regarding a whiff of partiality would doubtless remain.

As these practical issues of procedure in a complex case grow more complex with time, neither the judge nor the prosecution have offered any clear answers.

Meanwhile, the start date of the trial is currently scheduled for April 12, 2021, almost exactly three years after Lacey and Larkin were arrested by the FBI, with Backpage seized and shuttered by the bureau, in a an act of direct government censorship that would have given Anthony Comstock goosebumps were he alive to see it.

For more on the matter of Judge Brnovich and the recusal request, please see:
Lacey and Larkin Ask Ninth Circuit to Order Judge Brnovich’s Recusal
and
A Tourrette’s Quinceanera: Lacey Decries Judge’s Decision Not to Recuse