The rare moments of levity during the half-hour session at the Ninth Circuit on Sept. 2 in the Lacey/Larkin appeal came at the government’s expense as litigators jousted before a three-judge panel at the James R. Browning United States Courthouse in San Francisco.

About midway through the proceedings, the issue was the testimony of California cop Brian Fichtner during last year’s abortive trial of veteran journalists and publishers Michael Lacey and Jim Larkin, which ended in a mistrial due to prosecutorial misconduct. Lacey, Larkin and four others remain charged with up to 100 counts related to facilitating misdemeanor state prostitution offenses under the U.S. Travel Act: This, due to lawful ads for massage, escorts, etc. posted to the now-seized-and-destroyed listings giant Backpage.com. (Those 100 counts include attendant money laundering and conspiracy charges as well.)

At the 2021 criminal trial in Phoenix, the government, in its own version of deceitful, Communist-style kompromat, repeatedly mentioned or elicited testimony related to sex trafficking or child sex trafficking, though Lacey, Larkin, et al. are not charged with such heinous crimes. Nor could they ever be. Fichtner, who investigated Backpage previously for then-Cali AG Kamala Harris’ failed 2016 prosecution of Lacey and Larkin, was called by federal prosecutors last year to review adult-themed ads from Backpage, which on direct examination, the investigator declared were “blatantly” for prostitution.

However, Fichtner was eviscerated on cross-examination by the defense and forced to admit that the content of the ads on Backpage was legal and on its own did not give law enforcement probable cause to arrest anyone for prostitution.

During his remarks in San Francisco on Friday before the Ninth, Lacey’s attorney Paul Cambria offered Fichtner’s testimony as evidence of the government’s “motive” for defying the trial judge’s instructions in 2021, thus “goading,” i.e., “provoking” a mistrial.

“Here we’re in a situation where they say the First Amendment doesn’t apply to [Backpage’s ads] because everybody can tell on their face [that the ads] are illegal,” Cambria growled. “And now we have their police officer saying, ‘I couldn’t do it. I never arrested anybody based on an ad alone . . . And I know of no other police officer who’s arrested someone on the face of an ad alone.’ Their whole theory at this point, that the First Amendment didn’t apply, was decimated by him.”

Cambria should know: He’s one of the attorneys who did a verbal Jack-the-Ripper on Fichtner back then. Cambria told the panel the government’s motive is important because the appellate court must find that the government had a reason to sabotage its own case for the U.S. Constitution’s prohibition on double jeopardy to kick in. Cambria says the prosecution faced certain defeat, and so chose to throw the case, and retool its strategy for a retrial.

Assistant U.S. Attorney Peter Kozinets followed Cambria to the podium and was not long into an anti-Backpage screed before Judge William A. Fletcher interrupted.

“It doesn’t sound as though the case was going very well for the government so far,” Fletcher quipped with a chortle, joined by some in the audience.

“Well, I think that’s a misconception, your honor,” Kozinets replied.

“I don’t think that answer that the policeman gave was the answer you really wanted,” Fletcher added, smiling.

Kozinets contended Fletcher was an “introductory” witness. The trial had just begun and was anticipated to last three months. Kozinets insisted there was a busload more evidence to come, including testimony from Backpage’s owner from 2015 on, Carl Ferrer, who pled guilty to one federal count of conspiracy in a sweet plea deal with the feds that lets him keep his house, much of his money and escape a massive debt he owed Lacey and Larkin for the sale of the site. Thus, the government had no intent of throwing its case, Kozinets assured the appellate court.

Shortly thereafter, Fletcher’s colleague, Presiding Judge Lawrence VanDyke, seemed to throw shade on the mountain of evidence that the government supposedly planned to unleash after Fichtner had done his damage.

Post-Fichtner, it was “all uphill stuff for the government after this rocky start, it sounds like, is your position,” said VanDyke, catching Kozinets without a reply.

Any way you slice it, the prosecution was up a proverbial creek after Fichtner’s testimony in 2021, offering plenty of potential motive to provoke a mistrial.

But the Ninth Circuit panel also expressed concern that the defense’s argument did not meet the legal standards for invoking double jeopardy in a case like this one. The Ninth has a few options: It could overrule Humetewa and dismiss the whole megillah. It could send the case back down to Humetewa for a new trial. Or it could order Humetewa to hold an evidentiary hearing into the matter.

Brass Tacks

Though welcome to the audience that filled the august, Beaux Arts-style courtroom, such judicial humor was an outlier during the proceedings.

Lacey and Larkin are appealing the denial of their motion to dismiss the case for double jeopardy by U.S. District Court Judge Diane Humetewa, the fourth judge to sit on the case. In October 2021, Humetewa replaced the trial judge, Brnovich, who presided over the case for two-and-a-half years and declared a mistrial after just eight days and four witnesses.

On Sept. 14, 2021, Brnovich ruled that “in the opening, and with every witness thereafter,” prosecutors “abused” the leeway she had given them to discuss prostitution, sex trafficking and child sex trafficking by harping on the latter two. The “cumulative effect” of the government’s “misconduct,” she noted, “is something that I can’t overlook and won’t overlook.”

A few weeks later, Brnovich recused herself for unknown reasons, with Humetewa taking her place and facing a pending motion to dismiss from Lacey and Larkin. The controlling precedent, the 1982 Supreme Court decision in Oregon v. Kennedy, sets a high bar:

“Where a defendant in a criminal trial successfully moves for a mistrial, he may invoke the bar of double jeopardy in a second effort to try him only if the conduct giving rise to the successful motion for a mistrial was prosecutorial or judicial conduct intended to provoke the defendant into moving for a mistrial. ”

In explaining her decision, Brnovich said she didn’t find the prosecution’s misconduct to be “intentional,” but, significantly, she was not ruling on a mistrial motion at that time. Shortly thereafter, she recused.

Humetewa, in her denial of the motion to dismiss, claimed there was no misconduct by the prosecution, much less intentional misconduct. But Humetewa was coming at the case minus Brnovich’s history presiding over it. Lacey and Larkin appealed her decision, bringing them to the Ninth on Friday.

Each side had 15 minutes to present an argument, with Lacey and Larkin’s arguments given by Larkin’s attorney Whitney Bernstein and Lacey’s counsel, Cambria. Bernstein took the first eight minutes. Cambria took another three, saving four for rebuttal. Kozinets spoke for the government’s full 15 minutes.

Bernstein was peppered with questions by the panel. She argued that “the government knew that the defense would move for a mistrial if the government introduced inflammatory testimony about child sex trafficking.”

But Judge Fletcher wondered how the panel should “review” Humetewa’s decision, given that Humetewa had ruled against the defense.

Bernstein replied that the standard for the court was “clear error.” Humetwa was “not the judge that presided over the trial or declared the mistrial,” and in “Supreme Court case law and the cases of this court” where deference to the lower court was given, it was “the same judge for all of the proceedings.”

Fletcher asked why Brnovich recused herself. Bernstein answered, “We don’t know,” noting there were “over 1400 docket entries” by that time. Fletcher asked about the number of days of testimony. Bernstein told him testimony lasted 3 days with four witnesses, though the government had estimated the trial would last three months. Despite this, she said the court could still find that the government had the intent to provoke a mistrial, because of “the cumulative errors that the government had committed by that point in time, repeatedly violating the judge’s orders.”

Fletcher referred to the “line” drawn by Brnovich in her orders as being “vague,” and opined that the government’s actions were “not egregious.” Bernstein said the standard was not whether they were egregious, but if there was intent to provoke.

Judge Jay Bybee, the third jurist on the panel, agreed with Fletcher, saying Bernovich’s orders “weren’t very clear” and that “this was a difficult line to police.” Bybee said that in reviewing the transcript, he didn’t find violations of the judge’s orders leaping out at him.

Bernstein pointed to specific incidents where Judge Brnovich, at sidebar, told prosecutors not to go down the path of questioning a witness about children, and then did so anyway. Bernstein asked the judges to look at the “cumulative errors” the government committed.

“When a judge repeatedly tells the government do not do this and the government does it, quote, over and over and over again . . . and it’s an experienced intelligent prosecution team, you can only assume that it was intentional . . . the question becomes to what end, and if it wasn’t to get a mistrial, then it was intentional to interject prejudice into the record to get a conviction,” Bernstein said.

Next up was Cambria. He discussed how Fichtner’s testimony had “completely gutted” the prosecution’s case.

“When asked by us, can you tell simply by looking at the face of this ad, that it’s illegal, his answer was no. Secondly, he was asked, do you agree that escorts can be legal? He said, yes.”

That contradicted the government’s pre-trial assertion that escorts were the same as prostitutes, and that Backpage’s ads were on their face illegal.

Cambria says Fichtner’s testimony “now lets us, the defense, be able to say to a jury, ‘If they can’t figure it out, if they can’t say on the face of it that it’s illegal. How do you expect us to do that?'”

Cambria then offered an analogy to answer the suggestion that the mistrial came too early in the case to judge if the prosecution’s case was doomed, especially post-Fichtner.

“If the defense went first [at a trial] and the defendant got on the stand and the defendant said . . . ‘I committed the crimes that were charged here.’ It wouldn’t matter how many witnesses were called after that. The case would be over.”

Kozinets vs. Cambria

Kozinets, the government’s mouthpiece, insisted that “It’s abundantly clear that there was no misconduct at all.”

Indeed, if you just listened to Kozinets, you’d think there was no reason for a mistrial. He pointed out that the defense moved for a mistrial three times, only prevailing on the third. So that somehow demonstrated that everything that happened prior to the third mistrial motion was copacetic.

Of course, this ignores what Brnovich said in her mistrial decision, that it was the “cumulative” effect of the government’s references to sex trafficking and child sex trafficking that poisoned the jury.

Take the government’s opening statement at trial, where the prosecutor mentioned sex trafficking or child sex trafficking more than 50 times. Brnovich stated in her mistrial order that the government “was close to causing a mistrial” with the opening statement, but Kozinets slyly noted that after the opening statement, the defense moved for mistrial for the first time, but Brnovich denied the motion.

As for the witnesses, Kozinets claimed “the prosecutor worked hard to preview for the district judge . . . the scope of testimony” and took “great care to avoid those types of questions,” which would lead to the discussion of child sex trafficking.

The prosecution regurgitated the whole of the government’s prevarications against Backpage, including the canard that its moderation practices were intended to “sanitize” language indicative of prostitution, though such moderation practices are industry-standard on interactive websites, encouraged by Section 230 of the Communications Decency Act and protected by the First Amendment.

Kozinets asserted that the prosecution bent over backward not to ask a witness about “terms specific to children, terms like ‘Lolita,’ ‘Amber alert,’ ‘young,’ ‘high school,’ ‘teen,’ ‘new in town’ terms that are identified throughout the superseding indictment as having been used in Backpage ads.”

Notably, none of these words is illegal, and some, like “Lolita” and “Amber alert” were on a massive list of terms that Backpage did not allow, a list developed with the assistance of a former federal prosecutor and board member of the National Center for Missing and Exploited Children.

So which is it, counselor? Is the publication of such words indicative of illegality, or is their non-acceptance on the site criminal?

(Note: whenever one of these prosecutors mentions the word Lolita, and they do so often, I’m tempted to tell these latter-day Comstocks, “You know, Lolita is a book. You can find it in the library, or buy one on Amazon.”)

The reality is that illegality of any kind was forbidden on Backpage, and Backpage cooperated with law enforcement, helped track down missing children and prosecute their abusers. But the government would rather tell the Big Lie and keep repeating “child sex trafficking,” using lurid and misleading arguments.

During his rebuttal, Cambria excoriated the government’s use of the oldest pitch-and-switch gimmick in its bag of tricks.

“This was not a child trafficking case,” Cambria said. “All the pictures here, there’s no children involved as far as pictures and ages and so on. They all are saying they’re overage, the pictures, they all look like they’re overage. There was no charge like that. This was a Travel Act case. So what the trial judge said [to prosecutors] is basically you’re polluting this case. And that’s an old technique. I’ve tried lots of cases where they keep trying to inject children [into the case], it’s napalm.”

And as the Vietnamese can attest, when the U.S. government keeps dropping napalm on you, it’s likely to incinerate you. The government has done it unendingly in this case and keeps doing it, regardless of the consequences.

“When you do something over and over again, it’s intentional,” Cambria said. “It’s no longer an accident.”

The government had “everything to gain, nothing to lose” from a mistrial, he said, adding that the prosecution “heard our defense” and “all the money that the defendants had was confiscated by the government,” hobbling the defense, particularly if there’s a retrial.

Cambria suggested that, at a minimum, there should be a hearing to probe the prosecution’s actions during the trial before moving forward.

He concluded, “We’re talking here about words. It’s clearly a First Amendment case.”

It clearly is. But will the courts stop this runaway train before prosecutors lay Lacey and Larkin on the tracks for another go? We’ll only know for certain when we have the Ninth’s decision, which could come at any time. Though, some railbirds think it could come within a month or so.

Please also see:
Prosecution Hits First Amendment Iceberg in Lacey/Larkin Case
and
Backpage’s Victories in Federal and State Courts