A NY Daily News story on ex-prosecutor Maggy Krell's book, "Taking Down Backpage," credits her with the site's demise. In reality, Krell's 2016 state pimping charges were twice thrown out by judges.
On Friday, the New York Daily News published a glowing, error-filled preview of former California prosecutor and failed Sacramento County DA candidate Maggy Krell’s book Taking Down Backpage: Fighting the World’s Largest Sex Trafficker, which is scheduled to drop Jan. 11.
The piece depicts Krell as a crusading attorney for the California AG’s office who “defeated” the classified listings site Backpage.com by bringing pimping charges in 2016 against its former owners, Michael Lacey and Jim Larkin, as well as the man they sold the company to the year prior, Carl Ferrer.
But Krell’s charges famously didn’t stick and were thrown out of court, not once, but twice. Nor did Backpage go out of business in 2016.
Rather, Backpage went out of business in 2018, when the federal government seized and shut down the site, after the U.S. Department of Justice — not the California AG’s office — indicted Lacey and Larkin on multiple counts of conspiracy, money laundering and facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act.
Contrary to the title of Krell’s book, which calls Backpage “the world’s largest sex trafficker,” none of the defendants are charged with the heinous crime of sex trafficking, which involves either child victims, or adults induced into commercial sex by force, fraud or coercion.
Nor could they be. Lacey and Larkin are 40-year veterans of the newspaper industry, who have pled not guilty to all charges and are vigorously contesting their wrongful prosecution by the feds, who seek to hold them vicariously liable for third-party speech, posted to Backpage by its users.
Krell Strikes Out, Twice
Granted, Krell did take a crack at prosecuting Lacey, Larkin and Ferrer back in 2016, carrying water for then-California Attorney General Kamala Harris, who was running for the U.S. Senate at the time.
But Krell’s prosecution was wildly unsuccessful. On two occasions in 2016, she brought state pimping charges against the three men based on Backpage’s content. And the charges were twice thrown out because two California judges separately ruled that the website was generally immune from state prosecution under Section 230 of the Communications Decency Act, the federal law that largely holds websites blameless for content posted by third parties.
Krell should have known that she could not bring state pimping charges against the defendants. Her boss, Kamala Harris, signed a 2013 letter to Congress, along with other state AGs, asking Congress to amend Section 230 to allow for state prosecutions of websites such as Backpage.
The letter reads, in part:
“Federal courts have broadly interpreted the immunity provided by the CDA, and recently the United States District Court for the Western District of Washington held that the CDA preempts state criminal law.”
The CDA also provides immunity for state and federal civil complaints, though it does not shield websites from federal criminal charges.
In April 2018, Congress passed FOSTA/SESTA, which created an exception to Section 230 for sex trafficking.
But beforePresident Trump signed FOSTA/SESTA into law, the feds seized Backpage and indicted Lacey, Larkin, et al. under the U.S. Travel Act, which makes it illegal to use “the mail or any facility in interstate or foreign commerce, with intent to . . . facilitate the promotion, management, establishment, or carrying on . . . any business enterprise involving . . . prostitution offenses in violation of the laws of the state in which they are committed . . . ”
By 2016, several federal and state courts had ruled that the user-generated content on Backpage was protected both by 230 and, more importantly, the First Amendment. Federal courts in three states actually overturned laws targeting Backpage.
Yet, for the sake of Kamala Harris’ political career, Krell twice brought criminal charges based on Backpage’s content, though the courts had already found this to be impermissible under the law.
California also fought the accused’s release on bail, even though, as the NY Daily News correctly notes, attorneys for Lacey and Larkin “quickly contacted the authorities” after being charged in California, with both men turning themselves in. (Ferrer was arrested in Texas, then sent to California to face charges there.)
Before Lacey, Larkin and Ferrer bonded out, they were put on display for the media, locked up in a jail cell inside a Sacramento courtroom, wearing jailhouse orange.
At the time, writers such as Elizabeth Nolan Brown at Reason and Mike Masnick at Techdirt recognized it for the outrageous political stunt it was.
Masnick wrote:
This kind of bullshit seems like a massive abuse of power by Kamala Harris for the sake of grandstanding for her election campaign. She’s yelled about Backpage for years, despite acknowledging she has no legal authority to go after them. And then, just a month before the election on her big campaign to become Senator, she magically decides to arrest them on charges she herself knows can’t stick? That’s a really fucked up abuse of power . . .
Maggy’s Bar Card
The NY Daily News ignores Krell’s second round of pimping charges, like they never happened.
The paper does offer an odd quote from Krell’s book, which states of the second charging round that, “I expected the defense to kick and scream, possibly even demand sanctions or try and take my bar card.”
Now, why would Krell think she might be hit with a bar complaint?
One can speculate. I will look forward to the release of the book to see if she discusses this issue further.
The Daily News piece praises Krell’s supposed ingenuity in tacking on money laundering charges for the second state prosecution. The court ruled that some of the money laundering charges could stand because they were not directly tied to Backpage’s content, like the pimping charges.
Currently, the money laundering charges against Lacey and Larkin are on hold pending the outcome of their federal case, which is being tried in Phoenix.
These outstanding state money laundering charges have nothing to do with “pimping” or “prostitution,” btw.
In Sept. 2021, a judge declared a mistrial in Lacey and Larkin’s first federal trial. A second trial is scheduled for Feb. 9, but that’s now up in the air, as the defendants appeal another judge’s denial of a motion to dismiss for double jeopardy to the Ninth Circuit.
The NY Daily News makes a big deal out of the fact Carl Ferrer pled guilty to state money laundering charges brought by Krell, though she had already left the California AG’s office. Ferrer also pled guilty to state money laundering charges in Texas.
Both state pleas were part of Ferrer’s overall plea deal with the feds, in which he pled guilty to one count of conspiracy and got to keep his house in Texas and access to $2.3 million set aside for his defense.
The NY Daily News piece reports that Krell’s office posted an ad to Backpage “featuring the photo of a young staffer, promised sex with a teenager,” but the ad in question did not offer sex for money and the woman’s age was given as “24.”
Hypothetically, Ferrer could be sentenced to a maximum of five years for the federal case. His deal with the federal prosecution notes that his state sentences will run concurrently with his federal sentence.
By contrast, all of Lacey and Larkin’s assets have been seized by the government, and the two men, now in their 70s, could die in prison if convicted of some or all of the counts.
Mistakes, They Made a Few
The NY Daily News got a number of things wrong. For instance, the paper states that Backpage “profited from selling human beings, some as young as 12.”
Which is utter hogwash. Backpage didn’t sell “human beings.” It allowed users to post advertisements for everything from apartment rentals to antiques for sale to legal services falling under categories such as massage, dating and escorts.
Language offering sex for money was not allowed on the site. And users had to confirm they were 18 or older to use the site, something neither Facebook nor Twitter does.
Backpage’s staff cooperated extensively with law enforcement, answering subpoenas within 24 hours, training law enforcement and testifying against real sex traffickers and child predators in court. In 2011, FBI Director Robert Mueller signed a certificate of recognition honoring Ferrer as CEO of Backpage for “outstanding cooperation and assistance with an investigation of great importance.”
Fancy seeing you here!
Not so long ago, Robert Mueller was FBI Director and praising #Backpage for its help with sex trafficking stings. (Tucked inside a motion from a recently charged Backpage founder Michael Lacey.) pic.twitter.com/orWBigpMAJ
— Megan Cassidy (@meganrcassidy) April 10, 2018
Government studies and research by various nonprofits have indicated that sex workers were made less safe by the combination of the Backpage takedown and the passage of FOSTA/SESTA.
Adult-themed advertising fled to sites abroad that do not cooperate with U.S. law enforcement and do not answer U.S. subpoenas, severely affecting the ability of the police to save trafficked women and children and hold their abusers accountable.
The NY Daily News piece vaguely acknowledges that “though Backpage.com was shut down, a current quick computer search for ‘sex escorts’ turns up 6.9 million results.”
Otherwise, the paper relies on Krell’s book as its main source. For instance, it reports that investigators for the California AG’s office took out two ads on Backpage.
“One, featuring the photo of a young staffer, promised sex with a teenager. The other offered a nice, reasonably priced couch. The sex ad garnered 806 replies within two days. The couch ad? Not one.”
Contrary to this statement, the ad in question did not “promise sex with a teenager.”
In the first Lacey/Larkin trial, the prosecution called California DOJ special agent Brian Fichtner, the cop who placed the ad in question back in 2015 during the state investigation into Backpage.
The ad lists the advertiser’s name as “Terra,” and gives her age as 24, with the title “Sweet dreams do come true! Call me! – 24.” It includes no sex-for-money language. At its boldest, it says, “Let’s party together, you’ll leave with a smile.”
As shown in court, the ad features a non-nude photo of a woman in a dress and red shoes, in which her head is cropped out. Fichtner said the woman in the ad was an undercover agent. On cross-examination, Larkin’s attorney, Thomas Bienert, asked Fichtner if looking at the photo alone, he could determine the age of the person in the picture.
Fichtner answered, “This person here? No.”
As for the paucity of responses the sofa got? That might have something to do with the fact the ad offered an ugly, olive green sofa for $150. It was the sort of ratty furniture that people pay to have removed from their property.
Of course, there is also the no-brainer that any woman offering her companionship would receive far more calls than a nasty old green couch.
Interestingly, Fichtner’s testimony was disastrous for the prosecution and may have helped lead to the prosecutorial misconduct that forced a mistrial.
On direct examination by the prosecution, Fichtner reviewed a video he took of his review of Backpage’s “adult” ads in 2015, claiming they were all, obviously, for prostitution.
But under cross by Lacey’s attorney Paul Cambria, Fichtner admitted that he could not make a prostitution arrest based on the ads on Backpage alone. Nor could he refer such ads to a DA for prosecution.
The ads were legal on their face, Fichtner conceded. And he admitted that the ambiguous language in the ads could have been for legal escort services, strippers or even live sex shows.
Fichtner so undermined the prosecution that the defense believes the prosecutors intentionally defied the judge’s instructions, thereby “goading” the defense to move for — and be granted — a mistrial.
Did Krell and her office assist in the federal investigation of Backpage? No doubt. The press release for the DOJ’s takedown of Backpage notes the following:
“The effort to seize Backpage was led by the Justice Department’s Child Exploitation and Obscenity Section and the U.S. Attorney’s Office for the District of Arizona, with significant support from the U.S. Attorney’s Office for the Central District of California, the office of the California Attorney General, and the office of the Texas Attorney General.”
But “significant support” ain’t the same as a takedown, no matter how you play it. California couldn’t take down Backpage. The state judges who shot down Krell’s pimping prosecution agreed that the California DOJ lacked jurisdiction to charge Lacey, Larkin and Ferrer on pimping charges.
The release of Krell’s book seems timed with the assumption that Lacey and Larkin’s trial would be done by now and both of them convicted.
But you know what they say about assumptions.
Also, it’s never wise to bet against the Irish.
For more on this topic, please see:
Paul Cambria Tears Kamala Harris’ Fave Cop a New One on Cross in Lacey/Larkin Trial
and
Prosecutors (Again) Falsely Equate ‘Escorts’ with ‘Prostitution’ in Latest Filing in Lacey/Larkin Case
- Judge Reschedules Lacey/Larkin Retrial as Federal Prosecutors Court Another Mistrial - March 24, 2023
- Lacey/Larkin Don’t Oppose Severing Retrial from Co-Defendants (See Update) - March 20, 2023
- Judge Suggests Trying Journalists Lacey and Larkin Separately from Co-Defendants (See Update) - March 10, 2023
