Judge Diane Humetewa issued an order Monday vacating the Feb. 9 date for a retrial in the Lacey/Larkin case, while an appeal based on double jeopardy is pending before the Ninth.
On Monday in Phoenix, U.S. District Court Judge Diane Humetewa vacated a Feb. 9 start date for the second trial of veteran newspapermen and former Backpage.com owners Michael Lacey and Jim Larkin, while a defense appeal on the issue of double jeopardy works its way through the Ninth Circuit Court of Appeals.
The order comes nearly a week after Lacey, Larkin and their four co-defendants filed a notice of appeal at the Ninth Circuit, which set a briefing schedule for the appeal. The defense’s initial filing is due April 4, and the government’s response is due May 4.
An optional reply brief from the defense is due 21 days later, with the Ninth’s decision to follow thereafter. If the defendants prevail at the Ninth, the case is dismissed. If not, the case will likely be sent back to Humetewa for rescheduling.
Defendants are contesting Judge Humetewa’s recent denial of their motion to dismiss, which the defense filed after the previous judge on the case, Susan Brnovich, declared a mistrial on Sept. 14, on the eighth day of proceedings. Brnovich has since recused herself from the case.
Lacey, Larkin, et al. went to trial Aug. 30 on 100 counts of conspiracy, money laundering and facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act.
Prosecutors seek to hold the defendants vicariously liable for criminal acts committed by others — acts allegedly connected to ads uploaded by users to Backpage, a Craigslist-like classified-listings site the feds seized and took down April 6, 2018.
Throughout the trial, government attorneys repeatedly accused the defendants of complicity in heinous crimes that they are not charged with: specifically, sex trafficking, which involves either children, or adults coerced into the sex trade. Prostitution involves illicit commercial sex among consensual adults.
Prosecutors continuously ignored Brnovich’s admonitions not to emphasize such prejudicial material. Eventually, Brnovich granted a motion for mistrial, ruling from the bench that she had given the prosecution “some leeway” in discussing prostitution and sex trafficking, but the prosecution “abused” that leeway at every turn.
“The government, as prosecutors, are held to a higher standard, and their goal is not to win at any cost, but to win by the rules, to see that justice is done,” Brnovich said at the time.
Defense attorneys argue that a retrial of Lacey and Larkin is barred by the Fifth Amendment’s prohibition on trying someone twice for the same crime, aka, double jeopardy.
But the Supreme Court set a high standard for the application of the double jeopardy rule when the defense moves for and is granted a mistrial: i.e., the defense must prove that the prosecution intended to cause a mistrial by “goading” the defense into asking for one.
In her rejection of the dismissal motion, Humetewa ruled that the defense’s “contention that the Government sought to infect the trial with irrelevant and prejudicial material” was “not borne out by the record.”
Humetewa relied, in part, on a statement made by Brnovich as part of the latter’s mistrial declaration, in which Brnovich opined that the misconduct on the part of prosecutors had not been “intentional.”
The Perils of Innocence
According to Tucson defense attorney and former Arizona State Bar President Michael Piccarreta, an appeal on the grounds of double jeopardy makes sense in this case.
What chance does he think the appeal has?
“Anytime you’re representing defendants, it’s an uphill battle,” Piccarreta cautions. “I would say that without even having looked at their motions.”
“But here you have a pattern of [prosecutorial] misconduct from day one, and it is the court’s duty to make sure that defendants get a fair trial. So I would hope the Ninth Circuit will take a hard look at this and look at it in conjunction with all of the activity of the government since this case began.”
Piccarreta is familiar with the case as he formerly represented one of Lacey and Larkin’s co-defendants. When the government seized hundreds of thousands of dollars set aside for the man’s defense, Piccarreta was forced to withdraw.
The wily litigator has continued to follow the case from the sidelines and to criticize the government’s abuse of power in the case, which has involved the seizure of nearly all of Lacey and Larkin’s assets, the feds’ invasion of attorney-client privilege, and the FBI’s destruction of the most important piece of evidence in the case — the Backpage website itself.
Interestingly, Humetewa’s Jan. 10 order also asked for a status report from the government regarding a May 31 sentencing date for former Backpage exec Dan Hyer, who like the company’s former owner and CEO Carl Ferrer, has pled guilty to one count of conspiracy as part of a deal with the government.
Both Ferrer and Hyer are expected to testify at trial. Humetewa’s order does not mention Ferrer, though he has a sentencing date set for May 25.
“The government wants to ensure that the cooperating witnesses sing a tune to their melody,” Piccarreta explains. “If the person is sentenced [before trial], the person might be more inclined to basically tell the truth, as opposed to having to tell the truth through the eyes of the government.”
At most, Hyer and Ferrer could receive five years apiece for the offenses they’ve pled guilty to, though they are unlikely to receive that much time, if any.
As part of Ferrer’s plea deal, the government allowed Ferrer to keep his house in Texas and to maintain access to $2.3 million set aside for legal fees.
By contrast, as mentioned, the government maintains control of nearly all of Lacey and Larkin’s assets, in a failed attempt to grind them into submission.
And both men, who are in their 70s, face spending the remainder of their lives in prison, if convicted.
Such are the risks, it seems, of maintaining one’s innocence while defending against an unprecedented onslaught from the federal government.