UPDATE March 23, 2023: Judge Humetewa issued an order today delaying the start of trial to August 8, 2023 . She also decided against severance.
See judge’s order, here:
Unprompted by the parties in the case, federal Judge Diane Humetewa suggested severing the upcoming trials of ex-Backpage owners Michael Lacey and Jim Larkin from their fellow defendants.
In an order filed Thursday in federal court in Phoenix, U.S. District Court Judge Diane Humetewa questioned whether veteran journalists and ex-Backpage owners Michael Lacey and Jim Larkin should be retried separately from their four co-defendants in the case.
Humetewa’s unexpected query raises a host of issues for the defense and the government as a June 20 start date approaches for a second trial on allegations that Backpage facilitated prostitution by hosting adult-themed ads. The first ended in mistrial on Sept. 14, 2021, after just three days of testimony as a result of egregious prosecutorial misconduct.
The judge’s suggestion came in response to a motion for a trial delay from attorneys for Larkin and Scott Spear, a former Backpage executive. Larkin and Spear’s attorneys, both new to the case, asked the judge to continue the start of the trial for six months.
Humetewa scheduled expedited briefings on the request, while also ordering the parties to tell her their positions “on the issue of severing Defendants Lacey and Larkin” from the rest of the defendants.
The Court also seeks the parties’ positions on whether severing Defendants Lacey and Larkin for a separate trial has previously been considered, and whether, under the circumstances, judicial economy and the Defendants’ interests would be better served by setting Defendants Lacey and Larkin for a separate trial.
The filing from Lacey and Spear’s attorneys did not ask for a severance, nor have prosecutors requested one.
Rather, the filing argued that defense lawyers “need additional time to prepare adequately for trial, a highly complex prosecution involving millions of documents, hundreds of witnesses, and novel questions of law.”
Lacey, Larkin and the others face up to 100 counts of conspiracy, money laundering and facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act. Prosecutors seek to hold them vicariously liable for crimes allegedly connected to adult-themed ads for dating, massage and escorts posted by Backpage’s users to the site.
Larkin’s new attorney, Timothy Eckstein, joined the case on December 13. Eric Kessler, Spear’s new attorney, was appointed to the case by the court on January 13.
Kessler has a double-murder trial scheduled for May in state court, according to the filing, which argues the continuance is needed to preserve Spear and Larkin’s Sixth Amendment right to counsel.
Indeed, the brief paints a stark picture of the monumental work ahead of both attorneys. It states, in part, that:
The Government has produced in this matter 178,486 documents, consisting of 4,900,586 pages. The Government identified in advance of the first trial nearly 2,000 separate trial exhibits. Even that large number is deceptively small as many of the Government’s trial exhibits consist of groups of documents, some of which include hundreds of documents. Counsel estimate that the 2,000 trial exhibits contain more than 19,000 documents. If Counsel spent only five minutes reviewing each document, for eight hours a day, it would take approximately 197 days to get through these trial exhibits.
Further hampering the defense has been the federal government’s seizure in 2018 of Lacey and Larkin’s assets via federal courts in California. The government also seized millions of dollars set aside in attorneys’ trust accounts to pay for legal expenses.
As a result, several attorneys have withdrawn from the case, with panel attorneys appointed by the court as replacements for three of them.
Tucson attorney Mike Piccarreta was forced to withdraw from defending one of Lacey and Larkin’s co-defendants in 2019 after the government seized funds in a trust account set aside for his client’s defense.
Asked to comment on recent developments, Piccarreta, a former president of the Arizona State Bar, blasted the government for causing the current situation.
“This is a mess of the government’s own creation,” Piccarreta said. “They have engaged in tactics to try and render the defendants indigent to gain what I believe is a tactical advantage. However, these tactics may have backfired because now they’ve rendered the parties low on funds, which requires new lawyers, which requires the government to pay for the new lawyers.”
By requiring some defendants to acquire new attorneys, the prosecution has created inevitable delays and issues with the defendants’ right to counsel.
“No lawyer can be prepared for a case like this in just a few months,” said Piccarreta. “So I suspect the judge is trying to figure out a way how to sort out this problem. And one of her thoughts is to sever Mr. Larkin and Mr. Lacey.”
The government’s focus has long been on Lacey and Larkin, starting from their arrests in 2018, with both men held for more than a week in federal detention. Pretrial services recommended that Lacey and Larkin, now in their 70s, be released on their own recognizance, but prosecutors only allowed them to bail out on bonds of $1 million apiece.
Lacey and Larkin maintain their innocence and have defended their free speech rights in the face of overwhelming government persecution. Prior to their arrests, federal and state courts consistently held that Backpage’s content was protected by the First Amendment and Section 230, the federal law that generally holds interactive websites harmless for the content posted by their users.
The two men are pioneers in the world of journalism, founding the alternative weekly, the Phoenix New Times, in 1970 in opposition to the Vietnam War and building it over time into an award-winning national chain of 17 alt-weeklies known as Village Voice Media.
Their aggressive coverage of politicians and police has created for them an impressive list of enemies, including Vice President Kamala Harris and the late Sen. John McCain and his wife, Cindy, who was recently appointed to head the U.N. World Food Programme by President Biden.
“The government chose to conduct World War III litigation tactics, which have so far backfired and have turned the case into a lengthy, complicated mess.” — Mike Piccarreta, former Arizona State Bar president
Political payback for Lacey and Larkin’s decades of pugnacious reporting and publishing helps explain the extent of the government’s viciousness. In addition to impoverishing the defendants via seizures, the government destroyed vast amounts of evidence when it dismantled Backpage’s servers and effectively destroyed the website. It’s so bad, prosecutors were forced to “re-create” one of the 50 ads referenced in the complaint.
The defense has also accused the prosecution of misleading the grand jury in the case, and the government has refused to release the grand jury transcript to the defense.
Finally, the prosecution caused a mistrial in 2021 when it repeatedly mentioned or elicited testimony on inflammatory topics unrelated to the charges in the case: specifically, sex trafficking and child sex trafficking. The previous judge in the case, federal Judge Susan Brnovich, declared a mistrial, finding that the prosecution’s repeated misconduct had prejudiced the jury with its actions.
Brnovich later recused herself from the case, with Humetewa replacing her as the presiding judge. Humetewa is the fourth federal judge to sit on the case over the course of five years.
Piccarreta believes Humetewa is attempting to salvage this disaster wrought by the government. He hoped that the judge will not allow the government to take advantage of the situation by further trampling the rights of the accused.
He said a severance of the case would be a “two-edged sword” for the government, possibly forcing prosecutors to retry the case twice, or more if another mistrial occurs.
“Look, this case, if you even believe it should have been filed, should have been handled routinely and put to bed years ago,” Piccarreta said.
“Instead, the government chose to conduct World War III litigation tactics, which have so far backfired and have turned the case into a lengthy, complicated mess.”