On Feb. 12, federal Judge Susan Brnovich again rescheduled the start of the Lacey/Larkin trial due to COVID-19 issues, while the Ninth Circuit considers ordering her to step aside.
As the Ninth Circuit Court of Appeals ponders her removal from the case, U.S. District Court Judge Susan Brnovich on Friday reset the start of the trial for veteran newspapermen Michael Lacey and Jim Larkin to August 23 in Phoenix’s federal court over COVID-19 concerns.
It is the sixth continuance in the case, and the third due, in part, to COVID. The trial promises to be the First Amendment donnybrook of the century, with the federal government squaring off against Lacey and Larkin, former owners of the now-defunct online listings giant Backpage.com.
The judge’s decision came during a 16-minute telephonic hearing, which found the defense and the government in rare agreement that an April 12 start date was not realistic for a trial expected to take 12 weeks, with six co-defendants, more than a dozen lawyers, 100 government witnesses, members of the jury, and an estimated 40 to 50 persons in court every day.
Still, defense attorneys, who had asked for a September start date, cautioned that further delays might be necessary, especially if the coronavirus vaccine is not widely available by this summer both for trial participants and those in the jury pool.
“I know in my own situation, I qualify in every [category] of vaccines and can’t get scheduled,” said Lacey’s attorney, Paul Cambria, who is based in Buffalo, NY.
California attorney Thomas Bienert, who represents Larkin, noted that most states were doling out the vaccine based on the age of the recipients, with older persons receiving it sooner. Bienert speculated that this might hamper the inclusion of younger people in the jury.
Due to such uncertainty, the judge set a status conference for June 8 to possibly reassess the situation at that time.
Though COVID cases have been falling across the country, Judge Brnovich’s decision to delay the trial another four months was not a surprise. Currently, criminal and civil trials in the Arizona District court have been postponed and all grand jury proceedings have been suspended.
Meanwhile, Lacey, Larkin and their four co-defendants face 100 counts of money laundering, conspiracy and facilitating prostitution in violation of the U.S. Travel Act, a Kennedy-era law intended to go after mafia kingpins, not hound the onetime owners of a classifieds website like Backpage.
To railroad these trailblazing journalists, who co-founded the Phoenix New Times and expanded it into a national chain of alternative weeklies known as Village Voice Media (VVM), the federal government has concocted a cockamamie theory of prosecution, seeking to hold Lacey and Larkin vicariously liable for the criminal acts of others.
Specifically, the feds have cherry-picked 50 adult ads from the millions of ads posted to Backpage by its users for everything from puppy dog sales to apartment rentals to legal adult services, such as escorts and striptease. Prosecutors allege the adult ads are linked to illicit actions by third-parties.
One Grand Canyon-sized hole in the government’s attack plan: Lacey and Larkin never saw these 50 ads and did not know the persons associated with them. Nor were they aware of illegal acts perpetrated by those individuals.
The government’s contention is patently absurd and backed by the kind of hare-brained logic that would hold a telephone carrier liable for cocaine deals made on its service or an automobile manufacturer responsible for the car wrecks of drunk drivers.
The Price of Free Speech
Incredibly, of the 50 ads in question, 33 were dated after Lacey and Larkin sold the website in 2015 to the government’s star witness, Backpage CEO Carl Ferrer, who turned on his former associates as part of a generous plea deal.
The superseding indictment is also belied by a string of victories Backpage had over the years in federal and state courts. These rulings held that the website was shielded both by the First Amendment and Section 230 of the Communications Decency Act, which grants interactive websites immunity for user-generated content.
So why are these two 70 year-olds looking at the possibility of spending the rest of their lives in prison?
The answer has much to do with the award-winning, take-no-prisoners journalism they practiced and the enemies they made in the process, including John and Cindy McCain, Vice President Kamala Harris and the entire U.S. Senate.
“Our papers have butt-violated every goddamn politician who ever came down the pike!” Lacey once told New York magazine, adding, “As a journalist, if you don’t get up in the morning and say ‘fuck you’ to someone, why even do it?”
Such an attitude won their papers 3,800 writing awards, including a Pulitzer. And it’s resulted in them being falsely arrested by law enforcement on more than one occasion.
For the past three years, they’ve been out on bonds of $1 million each. Their movements are restricted by ankle monitors and all of their assets have been seized by the feds in an effort to castrate their defense.
Indeed, the prosecution has engaged in a series of unethical, win-at-all cost tactics that include slandering the defendants for crimes they are not charged with and effectively destroying the most significant piece of evidence in the case: the website itself, which the feds seized and shut down on April 6, 2018, the day Lacey and Larkin were arrested.
One unresolved issue is an effort by the defense to have Judge Brnovich recuse herself from the case because of prejudicial statements made by her husband, Arizona Attorney General Mark Brnovich.
The AG has declared Backpage guilty, and he has partnered with or promoted organizations that will be represented at trial by government witnesses. The defense claims that this creates an “appearance of partiality” on the part of the judge, and that the AG stands to benefit politically if his wife puts Lacey and Larkin in a steel cage and tosses the key.
Both factors normally would require the judge to step aside. But Judge Brnovich apparently is keen on keeping the case and has rejected a defense recusal motion, insisting she can be a fair umpire in the proceedings.
So the defense has gone over her head, petitioning the Ninth Circuit for a writ of mandamus, ordering the judge to withdraw. The Ninth has taken up the petition and set March 3 as the date it will consider written pleadings from both the defense and prosecutors.
Though it was not the topic of Friday’s hearing, Judge Brnovich did mention the pachyderm in the room in passing, after one attorney suggested setting a status conference before trial — which, as mentioned above, she eventually did.
“I’m not willing to set a status conference without having a trial date,” the judge explained.
She then added:
“Unless something happens . . . and I’m no longer your trial judge.”