In an order dated March 23, U.S. District Court Judge Diane Humetewa in Phoenix set a new start date for the retrial of veteran newspapermen Michael Lacey and Jim Larkin, former owners of the Craigslist-esque classified listings site Backpage.com: August 8, 2023, more than five years since their arrests.

Humetewa also ruled against the possibility of severing Lacey and Larkin’s retrial from their four co-defendants, an idea she raised in a previous order.

Meanwhile, as you’ll read below, the government seems determined to commit the same epic misconduct that led to a mistrial in 2021.

The judge’s ruling follows a recent defense motion to continue the trial for six months after June 20, the “firm trial date” set late last year by Humetewa.

Larkin’s lead attorney, Timothy Eckstein, and Spear’s court-appointed counsel, Eric Kessler asked the court for the extension, arguing that they needed time to properly review the nearly 5 million pages of documents produced by the government in discovery.

Eckstein came on the case in December. Kessler was appointed in January, but he only recently received the government’s discovery and has a two-week murder trial scheduled for May.

Instead of the requested six months, the judge granted a six-week delay, writing that an extension of time was “a reasonable request,” but that “the length of time requested—six months—is not reasonable,” and the defense will “not be prejudiced by a shorter continuance.”

Citing a hearing in the case held on Monday, Humetewa noted that Kessler said his murder trial was likely to settle. And she pointed out that Spear’s trial attorney, Bruce Feder, is still being retained, but in an advisory capacity.

As for Eckstein, she wrote that he and two other lawyers with him on the case will “have the benefit of all the work done by Larkin’s prior firm, who took the case to trial.”

During the hearing on Monday, Eckstein argued that Larkin’s Sixth Amendment right to counsel was in jeopardy and that it would be “malpractice” for him not to fully review the past filings in the case. He also must study the government’s 2,000 trial exhibits comprised of more than 19,000 documents.

Eckstein acknowledged that there would be some inconvenience for the court, but he argued that any inconvenience for the government would be “minimal” considering that “it was government misconduct that caused the mistrial.”

Indeed, Lacey and Larkin’s first trial ended after just three days of testimony in September 2021, when the trial judge, Susan Brnovich, declared a mistrial due to repeated prosecutorial misconduct.

Government attorneys, in direct violation of Brnovich’s orders, repeatedly mentioned or induced testimony concerning inflammatory topics such as rape, sex trafficking, and child sex trafficking, thus prejudicing the jury. (Brnovich later recused herself, with Humetewa becoming the fourth jurist to preside over the case.)

But neither Lacey, nor Larkin, nor any of their co-defendants are charged with those heinous crimes.

Rather, Lacey and Larkin are charged with up to 100 counts of facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act, as well as attendant money laundering and conspiracy charges. (Note: each defendant in the case is charged differently.)

The government seeks to hold Lacey and Larkin vicariously liable for criminal acts allegedly connected to ads posted to Backpage by its users for dating, massage, and escorts. These appeared alongside millions of ads for car sales, babysitting, apartment rentals, etc.

This theory of prosecution is ludicrous. It’s like trying to hold the CEO of General Motors criminally liable because he generally knows that bank robbers prefer Cadillac Escalades as getaway cars.

The government is well aware that Backpage’s publication of the content was legal. But at Monday’s hearing, the government’s lead prosecutor signaled that the government is set to trigger yet another mistrial in the case.

A Witch Trial and a Goat Rope

Assistant U.S. Attorney Kevin Rapp argued at Monday’s hearing that Humetewa should stick to a firm June 20 trial date.

The new defense attorneys on the case don’t need any extra prep time, he said, because the witnesses were going to be the same as in 2021, but fewer.  He said there were “58 witnesses” on the government’s witness list now, down from nearly 80 two years ago, though the government has yet to identify those who have been cut.

Rapp also said that an extension was not necessary because the defense team already knows everything it needs to know, since the government plans to put on the same case it did in 2021. 

During his spiel, the bouffant-haired prosecutor avoided the term “mistrial” — no doubt, because his team made one happen in the first go-around.

In her 2021 mistrial declaration from the bench, Judge Brnovich said that “in the opening, and with every witness thereafter” the government had “abused” the “leeway” she had given to prosecutors during the proceedings.

In fact, the prosecution’s opening statement, delivered by DOJ attorney Reggie Jones, set a new standard for outrageousness. In it, Jones mentioned child sex trafficking and sex trafficking more than 60 times. Jones even displayed to the jury X-rated pornography that never appeared on Backpage.

The government never attempted to try this case based on the counts listed in the indictment. After all, the U.S. Travel Act is pretty boring stuff.

Instead, it chose to smear Lacey, Larkin, and their co-defendants with some of the most horrendous crimes imaginable. The very definition of a witch trial.

And, as Rapp telegraphed, the government is poised to do the same thing over again.

Why? Because the prosecutors know Backpage was protected by the First Amendment.

Numerous courts have said as much, but the government brought this case anyway.

One of the government’s key witnesses during the first trial, Brian Fichtner, a supervisory special agent for the California Attorney General’s Office, conceded under cross-examination that the escort ads he had reviewed on Backpage did not propose illegal transactions.

Fichtner also admitted that he would practically have to be in the room with an escort and her client to know if an encounter stepped over the line into an act of prostitution.

He testified that he’d never made a prostitution arrest based solely on the content of such ads, and he didn’t know of anyone who had.

The feds are also aware that Backpage cooperated extensively with law enforcement to rescue endangered women and kids.

Hell, the FBI even gave Backpage an award in 2011 for its assistance.

And yet, this prosecutorial goat rope continues, without consideration for the millions in taxpayer dollars wasted, the many lives ruined, or a little thing called, “justice.”

Please read:
Backpage’s Victories in Federal and State Courts
and
Lawyers, Guns, and Money (And to Hell with Free Speech)