Michael Lacey decries federal Judge Susan Brnovich's recent decision to deny a request to recuse herself based on public statements by her husband, Arizona Attorney General Mark Brnovich.
It is difficult, for sheer outrage, to rival the French Revolutionary Tribunal where Georges Danton instructed the courthouse functionaries: “Let us be terrible, so that the people do not have to be.”
His savage directive lives yet to this very day.
Once again we are seeing bloody justice, this time in the Phoenix Federal Courthouse.
The United States Attorney, representing the Department of Justice (DOJ) has charged a half dozen former members of the Village Voice Media family of ‘facilitating’ prostitution because one component of the organization, Backpage, allowed adults to place adult classifieds.
Susan Brnovich, the presiding judge in the prosecution of the Alternative Press 6 (AP6), is married to the state’s top prosecutor, Attorney General Mark Brnovich.
In papers filed with the court, we have argued — to no avail — that the judge has a conflict.
Previously Judge Douglas Rayes disqualified himself because he had a friendly relationship with attorneys on both sides of this case.
Judge Susan, on the other hand, is sleeping with General Mark.
She sees no problem.
Au contraire, mon amie.
The AG’s Booklet
In June of 2018, Susan’s husband published a booklet savaging everyone involved in Backpage.
As one of the AP6 caught up in the prosecutor’s tar and feathering, I suggest this is not an incidental fact.
Mark Brnovich published this booklet two months after our arrest.
Backpage existed for 14 years; his book only comes out two months after our arrest.
Nor was that all.
More damaging still, before the book was published, we have reason to believe Brnovich was looking into Backpage.
Less than a year later, in 2019, his wife Susan agreed to take charge as the judge in the prosecution of the AP6.
In the absence of any disclosure by her that her husband had already set the table for her, we went to court under the impression that Susan was an impartial jurist.
We have only recently connected these judicial dots courtesy of a curious attorney who asked: Did you know…?
We did not.
You’re right about my opinion being something of its own conflict. We’ve got more than a dog in this hunt. They’re making novenas to put our asses behind bars for the rest of our lives.
The defendants then are left to ponder the pillow talk between these interlocutors. Or their conversations at Starbucks. Or their banter during the Trump-Biden brain-vomit fest.
And since the courthouse has hit the COVID-pause button, there is time indeed to consider the consequences.
According to our September 23 motion asking the judge to recuse herself, Susan’s spouse and those acting in his name, on his behalf and in association with him “made numerous public statements that . . . reflect a strong bias against Backpage and . . . the Defendants . . . invite(d) Arizona’s citizens and potential (jurors) to visit various websites that contain inflammatory and highly prejudicial statements about both Backpage and the defendants . . . vouch(ed) for the credibility of many of the government’s trial witnesses and . . . suggests that facts the government says will be at issue in the trial already are established . . . ”
Attorney General Brnovich has republished the booklet a second time and has put out a Spanish edition.
Additionally, the Attorney General has attacked Backpage — a target because of adult content — in press releases, letters to Congress and in public relations partnerships with the most extreme elements of the anti-adult content coalition.
To be quite clear, Attorney General Brnovich is not prosecuting the case in front of his wife. That task is performed by the US Attorney’s Office.
But once the FBI raided our homes and put us in prison, Attorney General Brnovich made sure he took his turn at our busted piñata.
And once he got his very public whacks in and made sure that that voters understood that he too was a part of this hysterical moral panic, only then did his wife choose to decide if she would sit in judgment of us, oversee jury selection and sentence us.
Her decision: She would.
J. Edgar’s Boys
And here’s the slap of ice water on our reddened cheek: this is hardly the first scent of taint.
As legal events began to congeal some three years ago, our attorneys offered that we would turn ourselves in.
The ominous response from federal prosecutors was: When we want them we will come and get them.
Guns drawn, FBI agents, swathed in armored vests, instructed me to raise my hands and step away from my computer.
After I was cuffed, they put a gun on my naked mother-in-law while she was in the shower.
When she asked for a towel, the gunman screamed: “When an FBI agent tells you to do something, you do it.”
North of Phoenix, agents kicked their way into my vacation home.
Their warrant said they could seize things indicative of value. They did that alright. They also wiggled up into the crawl space of the cabin and cut all the wiring . . . just because they could.
Court personnel suggested that both Jim Larkin and I be released on our own recognizance. And why not?
Larkin was born in Arizona, raised his family here, had substantial business holdings — as did I, holdings that had nothing to do with Backpage. We’d contributed to local charities, subsidized get out the vote campaigns and so on.
As journalists we covered local politics for more than four decades.
Plus, we’d had to surrender passports, so it’s not like we were leaving.
Prosecutors instead demanded a bond of $1 million each from the two of us.
(Kenneth Walker, who allegedly shot and wounded a police officer when the cops murdered his girlfriend Breonna Taylor, on March 13, 2020, had his bond set at $250,000.)
We were fitted with ankle monitors that track our physical movements. We need permission to travel outside of Maricopa County.
The authorities also seized all of our assets. They seized revenue from Backpage. They seized revenue from newspapers.
Our bank accounts were frozen.
Bank accounts with no Backpage revenue were seized.
They took our art, jewelry, family heirlooms, cars, trucks . . . anything that wasn’t nailed down.
They liened our homes so that we could not take out a second mortgage to pay legal fees.
Then the feds seized the bank accounts of our attorneys.
Our attorneys presented in court memos inadvertently disclosed by the U.S. Department of Justice, which argued that the owners of Backpage should not be prosecuted.
Truth is, in the adult swim lane, no one co-operated with the Feds more than Backpage when it came to bad actors. Subpoenas were answered promptly, evidence was made available, witnesses testified.
What would you think if you were in our shoes?
Defense attorneys were so impressed by the case government attorneys made on our behalf, they colloquially nicknamed the paperwork: “The Pay Dirt Memos”.
The first judge in our case, Steven Logan refused to admit the Pay Dirt Memos into the case.
Not only did he not admit it, as has since been discussed in open court here in Phoenix and elsewhere, Logan ordered that the document be destroyed, supposedly because they were the super-secret ‘work product’ of the prosecutors.
In 40 years of coverage of trials I had never heard of such destruction of evidence.
But there were more surprises to come, this time courtesy of J. Edgar’s boys.
Young Frankenstein’s Monster
In the course of the FBI’s initial raid, they seized over 100 of Backpage’s servers.
As I came to learn, a server is a piece of internet hardware that keeps a record of every transaction with telling detail about decisions made impacting, in this case, classified ads.
The FBI admitted in pre-trial testimony that they disabled the servers in such a way as to render them useless.
They knowingly destroyed/disabled core evidence.
So, for example, evidence of co-operation with law enforcement or child rescue organizations like the National Center for Missing and Exploited Children (NCMEC) disappeared.
In its place an FBI agent showed up in court with a prosthetic snapshot of a moment in Backpage.
"Young Frankenstein" (1974 Brooks, Wilder)
Inspector Kemp (Kenneth Mars) "Until we meet again!" pic.twitter.com/FzYymTHdCR
— Marc Moregan (@marc_moreganVO) March 5, 2016
This law enforcement prosthetic was the actuarial equivalent of Inspector Kemp’s wooden arm in Young Frankenstein.
The FBI’s prosthetic was, like Kemp’s limb, useless.
You could not find on the FBI’s model if ads were modified. You could not find if ads were referred. You could not search whatsoever.
The FBI said this was all we needed.
Jesus Fucking Christ. This is justice?
The difference between the anatomically correct Backpage servers they seized and destroyed, compared to the Golem they constructed as an FBI replacement, is the difference between Mel Brooks’ Doctor Frankenstein and the monster Frankenstein; one can tell a joke, the other is the joke.
Trust us, is what the FBI told the court . . . not to mention the defendants.
But that’s not what we heard; we heard the stirrings of a judicial lynch mob.
We heard Inspector Kemp:
“A riot is an ugly thing . . . undt I think it is chust about time ve had uun.”
Simply put: We do not trust the FBI.
And now, now that we’ve seen the Attorney General’s politically convenient, wildly distorted publicity vendetta, we cannot trust the judge, his wife.
In her refusal to recuse, issued October 23, 2020, Judge Brnovich said she saw no reason for a hearing. She would not step down and we could pound salt.
Evidence — or more accurately — the destruction of evidence — is sanctioned by prosecutors in subdued Brooks Brothers suits, and FBI agents in short sleeve drab, in front of judges in muffled robes.
She asked instead why hadn’t we objected to her husband’s book when it was printed.
Two months after our arrest when Attorney General Brnovich published his attack we were raising bail, finding lawyers, explaining to family, figuring out transportation, trying to sort out what hit us and soothing spouses.
We were sticking a straw up through the tsunami of sewage trying to breathe.
We did not keep up with the thoughts of the county recorder, the pronouncements of the mayor of Yuma or the ravings of the village idiots in Cornville.
Sorry your honor . . . this list of things we missed includes your husband’s J’accuse.
A ‘Townie’ Toast
Our predicament is almost cinematic.
“But sure, we don’t go away so easy.”
This reckoning is part of a ‘Townie’ toast as recounted by Chuck Hogan in his novel Prince of Thieves, a book that inspired Boston’s greatest heist movie with Ben Affleck and Jeremy Renner.
Ben Affleck and Jeremy Renner in The Town (2010) pic.twitter.com/zQzXAqwmQe
— Frame Found (@framefound) January 2, 2020
The swagger rolling off the screen in The Town doesn’t play out much here in the Valley of the Sun. Evidence — or more accurately — the destruction of evidence — is sanctioned by prosecutors in subdued Brooks Brothers suits, and FBI agents in short sleeve drab, in front of judges in muffled robes.
You could forgive the U.S. Attorneys for believing that Jim Larkin and Michael Lacey and their cohorts at Village Voice Media, Phoenix New Times and Backpage would have drawn their last free breath after going on three years of arrest, confinement, seizures, and litigation suggestive of polar whiteouts.
We don’t go away so easy.
So it is that on Wednesday, September 23, 2020, the dromedarian troop of lawyers who carry our water filed a motion in our desert courthouse to dismiss the current federal judge, Susan Brnovich, for bravura conflicts of interest.
If you were the sort to be amused, you could not suppress a grin at the ‘high crimes and misdemeanors’ deemed courteous conduct by this court.
Yeah sure, you’re right about my opinion being something of its own conflict. We’ve got more than a dog in this hunt. They’re making novenas to put our asses behind bars for the rest of our lives.
But still . . . these ballers in robes got some hops.
No one co-operated with the Feds more than Backpage when it came to bad actors. Subpoenas were answered promptly, evidence was made available, witnesses testified.
Judge Brnovich took this case even though her husband had his calloused thumb on the scales of justice.
Her husband, Mark, isn’t one half of Ozzie and Harriet; he is the Attorney General for the state of Arizona.
And Mark’s last name isn’t Smith or Jones. A potential juror isn’t likely to forget who said what; the speaker’s name, after all, is Brnovich.
But the conflict of interest allegation is not his decision; it’s hers.
The judge sees no conflict of interest.
She saw no taint upon judicial judgment.
She was not concerned about appearances.
Because as long as she put our heads on pikes, her husband would get to trumpet our conviction as a family affair in his next election.
(Although judges — as decreed in the code of the bar — are not supposed to immerse themselves whatsoever in politics — she has previously appeared in campaign videos on behalf of her husband. Judge Brnovich just winked her eye at propriety. And while she wasn’t wearing a robe, all of the deputy attorney generals, all of the county attorneys, all of the public defenders, all of the superior court judges, all of the federal judges, all of the sheriff’s deputies, all of the cops and marshals and badges, all of the bail bondsmen, the bailiffs, everyone knew that Judge Brnovich was winking . . . and so were they. There was so much winking going on it looked a Tourette’s Quinceanera for the entire god-damned justice system.)
And once the ethical chalk lines are blurred, all manner of buffoonery gets sanctioned.
Already we’ve seen a procession of robed violence to decency.
Dickensian in their caricature of mendacity, the Brnovichs’ behavior calls for the editorial cartooning of the 19th century Harper’s Weekly cartoonist Thomas Nast.
But this isn’t merely Tammany Hall corruption; it’s Tammy Wynette pathos.
Judge Brnovich wants to ‘stand by her man’, her husband, the Arizona Attorney General.
He is not in this courtroom . . . and yet, how can you not see him?
What would you think if you were in our shoes?
Because their quest is holy, the Brnoviches believe they can smother Larkin and myself and our colleagues like we are a smores treat and Susan and Mark are judicial crackers.
She’s not a dull student, this Susan.
What was she thinking?
That’s a silly question, isn’t it.
The answer is simple; her ethics are as shifty as smoke.