Government attorneys argue the First Amendment does not apply in the Lacey/Larkin case, but it does, and it's the reason prosecutors provoked a mistrial, according to a recent defense brief.
The U.S. Department of Justice has wasted four years and untold millions of tax dollars on the wrongful prosecution of award-winning journalists and former Backpage owners Michael Lacey and Jim Larkin.
Given the opportunity, the DOJ may waste more. Because contrary to case law, common sense and the testimony of a key government witness, federal prosecutors claim that the First Amendment has nothing to do with a case that is, in fact, all about speech.
But a new defense brief filed at the Ninth Circuit Court of Appeals demonstrates that the First Amendment remains an obstacle prosecutors cannot overcome. Indeed, the First Amendment was one reason government attorneys deliberately provoked a mistrial in September 2021, rather than continue with a trial strategy doomed to failure.
That’s the central thesis of the defense’s May 5 filing, which argues that the Fifth Amendment’s protection against double jeopardy bars the retrial of Lacey, Larkin and four co-defendants on 100 counts related to the facilitation of misdemeanor state prostitution offenses in violation of the U.S. Travel Act.
The prosecution’s flawed premise has always been that “anyone can tell” the ambiguous language and sometimes risqué photos in ads on Backpage for escorts, massage, dating, etc. were “obviously” for prostitution, and therefore illegal on their face.
However, in the weeks leading up to the September trial in Phoenix’s federal court, the prosecution’s theory began to crumble. The defense brief relates how, at a June 2021 hearing, prosecutor Kevin Rapp “unambiguously told the trial judge that escort services were unlawful everywhere except for one small county in Nevada.”
Defense attorneys countered that escort services are generally legal and often licensed by municipalities. Rapp had wrongly equated ads for escort services with offers of illicit sex for money.
The prosecution later tried to walk back Rapp’s statement, claiming it always understood escort services to be legal, while leaving unexplained Rapp’s egregious misrepresentations to the court.
But if, at trial, the prosecution was not allowed to equate escort ads with prostitution, the government’s case was in serious trouble.
Then, on the eve of trial, it became apparent that the jury was likely to receive instructions on First Amendment case law — to the effect that unless an ad’s language proposed a direct, illegal transaction, the First Amendment shielded it.
In an Aug. 20 hearing before federal Judge Susan Brnovich, Lacey’s attorney Paul Cambria explained U.S. Supreme Court precedent, stating, “All speech and press are presumptively protected under the First Amendment.”
The burden is on the government to prove otherwise, he said. In numerous cases, federal and state courts found the language in Backpage’s adult-oriented ads to be protected by the First Amendment. Three state laws targeting Backpage had been overturned.
Cambria argued that the jury must be advised of this aspect of First Amendment law. But the government objected that such guidance was unnecessary and would only confuse the jury.
Still, the judge seemed inclined to offer a First Amendment instruction.
“Whether the ads are protected or not is a decision for the jury, so the jury has to know the law,” Brnovich remarked at the time.
Scuttling Its Own Ship
In its brief to the Ninth, the prosecution maintains that it “won” this First Amendment “skirmish” before Brnovich in August 2021.
That’s a deeply disingenuous assertion.
True, Brnovich did not include a First Amendment admonition in her initial instructions to the jury — read to the jury before the trial commenced.
Rather, the judge said that “it’s more appropriate to leave more specific instructions until the final instructions,” which would be read to the jury before its deliberation.
As the defense notes, Brnovich “never addressed the final jury instructions . . . because the government provoked the mistrial before she could address them.”
Yet the prospect that Brnovich would provide the jury with an instruction that adult-themed ads on Backpage were presumptively protected by the First Amendment gave prosecutors “a compelling reason to want to provoke a mistrial,” so the government could “regroup and retool its case.”
As a result, the prosecution repeatedly mentioned and elicited testimony regarding heinous crimes that Lacey and Larkin are not charged with, such as rape, sex trafficking and child sex trafficking — despite Brnovich’s orders to steer away from such subjects.
In his opening statement at trial, prosecutor Reggie Jones mentioned sex trafficking and child sex trafficking more than 50 times.
Later, veteran government attorney Kevin Rapp defied the judge’s admonitions at sidebar, plunging into excruciating details of one witness’ experience as a teenage sex trafficking victim.
Then the disastrous testimony of Brian Fichtner, an investigator with the California Attorney General’s Office — whom prosecutors expected to be their star witness — gave government attorneys additional motive to force a mistrial.
As the defense’s May 5 filing relates, Fichtner reviewed hundreds of ads on Backpage as part of a 2015 investigation into the company. On direct examination by the government, Fichtner testified that these escort ads were “blatant prostitution ads.”
But on cross-examination, Fichtner admitted the ads that he reviewed were legal on their face. They could be advertising legal adult services under California law, he conceded. He said he could not make an arrest for prostitution based solely on the vague content of the ads, and he knew of no one who had.
As the defense brief puts it, Fichtner’s testimony “contradicted the government’s ‘anyone could tell’ theory of the case” and “underscored that Backpage’s publication of all the ads he showed the jury was protected by the First Amendment.”
Their case in shambles due to Fichtner, prosecutors hammered away at “child sex trafficking,” eliciting inflammatory testimony from its supposed trafficking expert, anti-porn/anti-sex work extremist Dr. Sharon Cooper.
The defense moved for a mistrial, and Judge Brnovich granted it Sept. 14.
Judge Brnovich explained from the bench that she allowed the prosecution some “leeway” in discussing sex trafficking, “but in the opening, and with every witness thereafter, it seems, the government has abused that leeway.”
Detailing the prosecutorial misconduct that led to the mistrial, Brnovich said that “the cumulative effect of all of that is something that I can’t overlook and won’t overlook.”
Her decision came eight days into a trial expected to last three months. By the end of October, Brnovich recused herself from the case without explanation, and federal Judge Diane Humetewa was appointed as her replacement.
In late December, Humetewa denied a defense motion for dismissal, and the defense appealed to the Ninth Circuit. The case is in limbo until the Ninth rules.
Groundhog Day Cometh?
The defense makes a convincing case in its “reply” brief, despite the legal prerequisites involved.
In the 1982 case Oregon v. Kennedy, SCOTUS held that, in order to invoke double jeopardy, it was not enough to show that prosecutorial misconduct caused a mistrial. The defense must show that the prosecution intentionally provoked the defense into moving for a mistrial.
Brnovich said she didn’t see any of the prosecution’s misconduct as “intentional.” But Brnovich was not ruling on a dismissal motion or whether the Fifth Amendment’s prohibition on double jeopardy was triggered.
In her denial of the defense’s dismissal motion, Judge Humetewa wrote that she did not see the prosecution’s actions as misconduct, much less “intentional” misconduct. But she failed to consider Fichtner’s testimony or the First Amendment implications. And she didn’t hold an evidentiary hearing to question the prosecutors or witnesses under oath.
The defense argues that Humetewa erred. Her finding of no prosecutorial misconduct is at odds with Brnovich’s ruling, the defense contends. The defense asks the Ninth to reverse Humetewa’s ruling, or, alternatively, to vacate Humetewa’s order and send the case back to her “for a full evidentiary hearing.”
Even if prosecutors get another whack at taking this travesty to trial, the First Amendment protected Backpage’s right to publish, just as it presumptively protected the content of ads posted to site.
Try as they might in this case, federal prosecutors cannot wish the First Amendment away.
ICYMI, please also see:
Lacey/Larkin Appeal Asks Ninth to Dismiss Case for ‘Brazen’ Misconduct by Top Federal Prosecutors
WaPo Reviewer Drinks Prosecutor Maggy Krell’s Kool-Aid
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- Judge Suggests Trying Journalists Lacey and Larkin Separately from Co-Defendants (See Update) - March 10, 2023