Judge Brnovich has rescheduled the start date of the much-delayed Lacey/Larkin trial, while the parties await her rulings on jury instructions and a First Amendment defense.
Update Aug. 17, 2021: On the same day as Judge Brnovich’s order below, Bruce Feder, attorney for one of Lacey and Larkin’s co-defendants, Scott Spear, entered a “response and opposition to court order accelerating trial.”
Feder explains on the record that he is the attorney who has contracted COVID, and that his assistant has contracted it as well. Feder says he has not been able to meet with his client while sick and that he (Feder) may not be able to attend the Aug. 20 status conference to prepare for trial on Sep. 1. (Note: The Arizona District Court’s COVID protocols forbid persons with symptoms from entering the courthouse.) The Phoenix attorney asks that Judge Brnovich reschedule the start of trial for Sep. 8, as it is “not necessary to accelerate the trial by six days to accommodate . . . the Jewish holidays.”
Indeed, last week, the judge granted a two-week delay because Feder had contracted COVID.
Then, a week later, she reversed herself when counsel for another party asked her to suspend trial on Sep. 7 for Rosh Hashanah (and on Sep. 16 for Yom Kippur). She then moved the start date up a week to Sep. 1.
“It is not necessary to accelerate trial by six days to accommodate two days of Jewish holidays. Moreover, as a matter of due process to Defendant Spear and public safety to all trial participants and those in the courthouse, it makes sense to start trial on September 8, 2021 and use September 13, 2021 and another day to accommodate the Jewish holidays. Defendant Spear and undersigned counsel request that trial begin on September 8, 2021, due to undersigned counsel and his assistant’s ongoing health issues. Counsel does not make this motion for reason of delay, but in the interest of justice.”
UPDATE Aug. 16, 2021 12:30 p.m.: Judge Brnovich this morning issued the following order, moving up the trial date to Sep. 1: “ORDER The Court has read and considered Defendant John Brunst’s 1214 Motion For Trial Suspension During Jewish Holidays to which the Government and Co-Counsel have no objection. In order to accommodate this request, IT IS ORDERED accelerating the trial date to September 1, 2021 and adding September 13, 2021 as a trial day. Counsel will be emailed an updated trial calendar. Ordered by Judge Susan M. Brnovich on 8/16/2021.”
With crucial decisions pending before her court, including several involving the First Amendment, federal Judge Susan Brnovich extended the start date of the Lacey/Larkin trial from August 23 to September 7, a delay prompted by a defense lawyer and his staff recently contracting COVID-19, despite being vaccinated earlier in the year.
Brnovich’s order came in a sparse minute entry dated August 9, the same day a status conference in the case was held via Zoom in federal court in Phoenix, part of which occurred under seal. Her minute entry does not mention the reason for the trial delay, but an August 5 status report from the defense notes that an attorney for one defendant and his staff “have been symptomatic and quarantined for nearly two weeks and remain symptomatic and quarantined as of this filing.”
This makes the seventh continuance granted in the case since the arrests and indictment of lifelong journalists and publishers Michael Lacey and Jim Larkin in April 2018. They face 100 counts related to their former ownership of the classified listings site, Backpage.com — specifically on allegations of money laundering, conspiracy and the facilitation of prostitution in violation of the U.S. Travel Act.
It is the fourth time the trial has been delayed due to COVID.
The trial will be held in the more spacious “special proceedings courtroom” on the second floor of the Sandra Day O’Connor U.S. Courthouse, rather than in Judge Brnovich’s courtroom. Masks and social distancing in the building are required by a general order issued in June by Chief Judge G. Murray Snow, which allows trial judges to authorize the “removal of masks or face coverings for purposes of witness testimony, defendant identification” or other such reasons.
But with six defendants (including Lacey and Larkin), 16 jurors (12, plus four alternates), some 30 attorneys and support staff (from both sides), a total of 88 prosecution witnesses (and counting), in addition to court employees and observers, the court will have its hands full trying to keep the trial from becoming a superspreader event during its estimated 12-week run.
According to the defense’s filing, the afflicted attorney, who was not identified by name, asked for a three-week continuance, and the other defense attorneys agreed in principle, noting the rise in the Delta variant, and the upswing in COVID positives for the state. Judge Brnovich granted a two-week delay.
How the rise in Arizona’s COVID numbers will affect the jury pool is unknown. Questionnaires for potential jurors went out prior to the recent surge. So far, the judge has struck 250 potential jurors for cause, including several for health reasons or their concerns about being on a jury for several months during a pandemic.
Many of the defendants and their attorneys are in their 60s and 70s with attendant health issues. During the Aug. 9 hearing, Brnovich advised the parties that she would review COVID protocols with them at the next pre-trial conference, which should be in-person and is now scheduled for Aug. 20.
At that time, Brnovich said she and the parties would discuss potential jury instructions, which are in dispute. In-person questioning of potential jurors will begin Sept. 7, with attorneys allowed to ask questions that follow up on the initial, mailed questionnaire.
Brnovich mentioned at the Aug. 9 conference that she believed 36 jurors at a time could be seated in the special courtroom. Larkin’s attorney, Thomas Bienert, asked the judge to address a proposed, supplemental question for jury members, in which possible jurors are asked if they are familiar with the judge’s husband, Attorney General Mark Brnovich, and if so, to explain “their views on his service and priorities.”
Bienert stated that he did not want to revisit any perception of partiality based on her husband’s biased statements and actions regarding Backpage, which were the basis of a defense motion for the judge to recuse herself last year.
Judge Brnovich denied that motion, and in April, the Ninth Circuit Court of Appeals refused a defense request to intervene and order Judge Brnovich’s recusal.
However, Bienert said the ability to ask such a question, could help “flag jurors who are extreme” either in their like or dislike of AG Brnovich, who has declared his candidacy for the U.S. Senate in the GOP primary next year and has been making frequent media appearances as a result.
Judge Brnovich asked the prosecutors for their thoughts, to which Assistant U.S. Attorney Kevin Rapp replied that the government took no position on Bienert’s inquiry.
The judge explained that she previously denied the defense request to include that question on the juror questionnaire, saying,
“I don’t see any reason to insert my husband into a case that he’s not involved in.”
Judge Brnovich said she would reconsider the question before the in-person voir dire begins on Sep. 7.
Doc Dump and the First Amendment
Judge Brnovich also shot down a defense request that she review, in camera, the prosecution’s instructions to the grand jury on prostitution law, after previously denying a defense request for access to that same information.
Interestingly, on Aug. 13, the government filed its proposed instructions for the trial jury, along with sections recommended by the defense and the government’s objections. In that 200-page document, the government cited 15 separate state laws regarding prostitution, saying that it did not have to prove that any of these laws were broken to convict Lacey, Larkin and four co-defendants.
Among the issues that await the judge’s decisions are:
The government’s massive exhibit list: According to the Aug. 5 filing, the defense wants Brnovich to pare down the government’s final exhibit list, which runs 159 pages “and contains more than 2,500 separate exhibits, totaling tens of thousands of pages.” Additionally, the government has 88 witnesses, some of whom have not been identified for the defense, and the government has not provided discovery on some witnesses. According to the filing, if the government is allowed such overkill, “it would obviously take more than the 51 trial days that the court has set aside” for the entire trial.
The prosecution’s “statement of the case”: The government has agreed not to read the indictment to the jury. Instead, it wants a “statement of the case” read to the jury, which mentions in passing that the defendants are innocent till proven guilty, then goes on to put forth the government’s theory of the case, i.e., that the vast majority of speech on Backpage was illegal and Lacey and Larkin are guilty by virtue of the fact they once owned Backpage. These allegations are factually incorrect, so why they should be read to the jury without rebuttal remains unclear.
Jury instructions and the First Amendment: The tangle over jury instructions is a Gordian knot that both sides want to slice to their advantage. The defense argues that according to case law the government must prove that each defendant used a “facility in interstate commerce” with the specific intent “to promote, or facilitate the promotion of, prostitution offenses committed by a particular business enterprise” in violation of the state law in which they took place. This would mean intentionally facilitating “a particular business enterprise” associated with one or more of the 50 ads cherry-picked by the prosecution from the millions that ran on the site on any given day, with the aim of promoting that unlawful business.
Lacey and Larkin were not aware of these ads. And as Judge Brnovich herself made clear in a previous ruling, “[O]ne cannot intend to promote/facilitate a business enterprise one does not know exists.”
But prosecutors argue they need only prove that the defendants had some generalized knowledge that some people connected to advertising in Backpage’s adult section may have engaged in illicit commercial sex.
Keep in mind that ads offering sex-for-money were forbidden on the site and posters used ambiguous language. Vice cops would need far more than a vaguely-worded ad to bust someone, for instance.
The defense also wants the jury instructed on how the First Amendment applies to the case. For instance, advertisements “are legally protected speech under the First Amendment.” And “a website’s hosting of a third-party ad is presumptively protected” by the First Amendment — unless the defendant knew of the specific ad in question, knew its content was for unlawful activity, and took some action (or declined to do so) “specifically intended to further illegal activity.”
Backpage and Lacey and Larkin won several cases in federal and state courts around the country based in part on the First Amendment, overthrowing three state laws targeting the site in the process. For example, in the 2012 case, Backpage v. McKenna, a federal judge in Washington state ruled that “third party publication of offers to engage in illegal transactions does not fall within `well-defined and narrowly limited classes of speech’ that fall outside First Amendment protection.”
The prosecution maintains that, overwhelmingly, the ads that ran on Backpage blatantly advertised sex for money, notwithstanding the vague wording of the ads. But courts have held that the government cannot presume illegality when it comes to adult advertising and that the adult ads on Backpage were protected both by the First Amendment and by Section 230, the law that holds interactive sites blameless for content posted by others.
Will Judge Brnovich even allow such arguments to take place? Granted the government and the defendants disagree on this point. But in the case of Lacey and Larkin, if you own a website that federal and state courts have repeatedly told you is legal under the First Amendment, why would you think otherwise? Because self-serving politicians and activists tell you so?
That the government doesn’t want the First Amendment even mentioned during this trial should be a red flag for everyone: free speech is directly implicated in this prosecution, in which the government seeks to completely eradicate a certain kind of adult-themed speech, at least as hosted by U.S. businesses.
Moreover, under the rubric of the Travel Act — which covers liquor, gambling, prostitution, drugs, bribery and extortion — potentially a much wider swath of speech is threatened, especially if the government is allowed to assume its illegality.