In the Lacey/Larkin case, federal Judge Susan Brnovich refuses to issue a defense subpoena to her husband, Ariz. AG Mark Brnovich, illustrating what some call an "appearance of partiality."
A game of legal ping pong has ensued in the Lacey/Larkin case, with U.S. District Court Judge Susan Brnovich shooting down a defense subpoena seeking the same docs from her husband, Arizona Attorney General Mark Brnovich, as a public records request from the defendants, now pending at the AG’s office.
On February 11, the judge ruled against the defense’s motion for a subpoena to her spouse’s office, requesting “all correspondence or records” discussing the defendants, their case and the defunct listings website at the center of it all, Backpage.com.
In doing so, Judge Brnovich not only denied the defense access to documents that it may need for the upcoming trial of Lacey, Larkin and four co-defendants, she bolstered an argument the defense made in a September motion seeking her recusal: that public statements made by the AG and his office regarding Backpage create an “appearance of partiality,” requiring her to step away from the proceedings, in compliance with federal law.
The defense also contends that AG Brnovich has non-economic interests “that could be significantly affected by the outcome of the case.” Notably, the AG has “staked his own ‘reputation and goodwill’ on his claim [that] Backpage.com/Petitioners were guilty of serious criminal conduct.”
(Please note: AG Brnovich is not prosecuting the case. It is a federal prosecution being pursued by the U.S. Department of Justice.)
The AG, after all, is a popular Arizona politician who has successfully won statewide office on two occasions, and many people anticipate he will run for governor in 2022. If so, his campaign and the Lacey/Larkin trial could easily overlap, as the trial was recently rescheduled to begin Aug. 23, and may take several months to complete.
And, if the AG’s wife packs away the defendants for a long stretch in the federal pen, how could that not help a Republican gubernatorial candidate, especially one with a law-and-order platform?
Nevertheless, Judge Brnovich has refused to recuse herself, insisting that she can be impartial, despite the hostile rhetoric of her husband and his office toward Backpage.
As a result, in November, Lacey and Larkin petitioned the Ninth Circuit Court of Appeals for a “writ of mandamus” that would order Judge Brnovich to withdraw and let another judge take over. (Brnovich is the third judge on the case, the first two having recused themselves without explanation.)
The Ninth has since set March 3 as the date it will review pleadings on the issue.
“It brings the issue of the potential conflict closer to home, because it’s an issue that directly involves the Attorney General’s office.” –Michael Piccarreta, former Arizona State Bar president on Judge Brnovich’s subpoena ruling.
The stakes could not be higher. Prosecutors have charged defendants with 100 counts of money laundering, conspiracy and the facilitation of prostitution. The charges are based on a meshuggeneh theory that the accused are responsible for illegal acts committed by others — acts allegedly connected to adult ads posted by the site’s users.
(It is a preposterous theory of vicarious liability, which, if hypothetically applied to someone like beer heiress Cindy McCain, might seek to hold her indirectly responsible for DUI car crashes that result from the excessive drinking of beer distributed by her family business, Hensley Beverage Company. Which, of course, would be nearly as ludicrous as the Lacey/Larkin prosecution.)
Sadly, it’s a theory that the AG’s office has embraced in official publications that conflate consensual adult prostitution with underage sex trafficking and accuse Backpage of facilitating both. Yet, none of the defendants are charged with facilitating sex trafficking.
The AG also signed a letter to Congress, along with other state AGs, asking them to amend federal law to allow the AGs to prosecute Backpage.
But Judge Brnovich won’t let the defense peek behind the AG’s curtains, writing in her order rejecting the subpoena that the requested documents are “procurable by other means,” specifically, pursuant to Arizona’s public records law.
Thing is, while awaiting the judge’s decision on the subpoena, the defense hit AG Brnovich’s office with a public records request on January 21. But a public records request does not command the attention of public servants in the same manner as a subpoena issued by a federal court, the defiance of which could result in a contempt rap.
The AG’s office replied a couple of weeks later with a letter to defense attorneys telling them that the office is “conducting a search of our records” and will respond “once any potentially responsive records have been reviewed.”
You can look at the defense’s Jan. 21 letter to the AG’s office, here, and the AG’s response, here. Please note that the AG’s letter is incorrectly dated and states that the original request was made on Nov. 28, 2020, which also is wrong.
Piccarreta on Point
In her ruling on the AG subpoena, Judge Brnovich seems to be making the defense’s case about an “appearance of partiality.”
According to Michael Piccarreta, a Tucson attorney and former president of the Arizona State Bar, the matter is now front and center.
“It brings the issue of the potential conflict closer to home, because it’s an issue that directly involves the Attorney General’s office,” he explains.
“I’m not saying that her ruling wouldn’t be the same regardless,” he says. “All I’m saying, is it just makes things uncomfortable for everybody.”
Piccarreta knows the case sideways and back. He once represented one of Lacey and Larkin’s fellow defendants, Andrew Padilla, who was Backpage’s operations manager before the U.S. government seized and swallowed the massive, international website like Shrek downing a sack of onions.
But the government decided to swoop in and seize the money set aside for the defense of Padilla and another defendant, Joy Vaught, Padilla’s onetime assistant. Piccarreta and another attorney were forced to withdraw from the case. Now Padilla and Vaught are repped by attorneys paid by the U.S. government.
Piccarreta also weighed in on another defense subpoena rejected by Judge Brnovich. This one was to the National Center for Missing and Exploited Children (NCMEC), a quasi-governmental clearinghouse for all reports of child sex trafficking and other crimes against children.
The prosecution plans to call current and former NCMEC executives to testify against Lacey and Larkin at trial, though Backpage cooperated with NCMEC, much as Backpage did with law enforcement, reporting ads that the site suspected of being connected to trafficking.
Nevertheless, NCMEC, which is largely funded by the Justice Department, eventually jumped aboard the bash-Backpage bandwagon.
So, naturally, the defense requested a subpoena for a number of documents from NCMEC, including communications between the Arizona AG’s office and NCMEC. In its motion, the defense argued that this was necessary to counter the prosecution’s assertion that organizations like NCMEC and state AG offices had given notice to Backpage about alleged illegal transactions on the site.
In part, the defense argues that this “notice” was not based on the law, but on “moral or ethical concerns with the advertisements on Backpage and the related adult activity.”
On its own, Piccarreta explained, the defense can subpoena documents to be provided at trial, but Lacey and Larkin’s lawyers were looking to review the NCMEC and AG docs before trial through something called a Rule 17(c) subpoena, which the judge must approve.
Judges have “wide discretion” in this area, according to Piccarreta.
“But it seems to me if the information is relevant and it could lead to discoverable information, that you should be able to access it before trial,” he offers.
Judge Brnovich denied the defense’s AG subpoena on the basis of there being another avenue to obtain the records.
NCMEC, however, is not subject to the same sort of rigorous public records laws as the Arizona AG’s office.
Regarding the NCMEC subpoena, the judge wrote that the defendants were seeking “‘large swaths’ of communications and internal documents regarding Backpage.com.” She characterized the move as improper, calling the defense request “an attempt to embark on a fishing expedition.”
Asked about Judge Brnovich’s “fishing expedition” comment and her rejection of the NCMEC subpoena, Piccarreta cracked wise.
“I viewed it as a fishing expedition with a big trout on the line.”