Forget smoking guns. In an appellate brief filed recently at the Ninth Circuit, defense attorneys in the Lacey/Larkin case offer a series of flaming bazookas, detailing the prosecution’s unabashed intent to force the defense to move for a mistrial (and get it) following just eight days of proceedings in Phoenix’s federal court last fall.

The 77-page filing argues that shortly before the case went to trial in Sept. 2021, the prosecution realized it was facing disaster. Pre-trial rulings and statements by federal Judge Susan Brnovich undercut the prosecutors’ assumption that the content of escort, massage and personal ads on the classifieds site Backpage.com was obviously illegal and not protected by the First Amendment.

Testimony from the prosecution’s witnesses further belied that contention. Prosecutors chose to provoke a mistrial by repeatedly defying direct orders from Judge Brnovich to steer away from inflammatory rhetoric regarding heinous crimes that the defendants are not accused of: such as rape, sex trafficking and child sex trafficking.

One egregious example of prosecutorial provocation came courtesy of Assistant U.S. Attorney Kevin Rapp during his questioning of a young woman who testified that ads posted by her pimp and herself to Backpage facilitated acts of prostitution.

The woman had no connection to the accused or the actual charges in the case. But Brnovich allowed her to testify under strict guidelines. The government was to stay away from the woman’s life “while she was being trafficked.” She could testify about the fact that she was “trafficked by her pimp through Backpage” and that she had filed suit against the company, but not on the details of her ordeal.

As the defense points out, Rapp, a veteran federal prosecutor, assured Brnovich that he would comply with the court’s rulings and would not “dwell on…the day-to-day life as being pimped out and trafficked.”

Rapp then spun on a dime, promptly eliciting testimony violating Brnovich’s orders, wherein the witness averred that at age 15 she was “trafficked at the hands of a pimp” and raped repeatedly.

The appellate brief recounts what happened next:

The irrelevant and inflammatory rape testimony drew an objection, which the Trial Judge sustained. Undeterred, the prosecutor then immediately solicited testimony concerning her “prostitution lifestyle,” including details about an altercation with a pimp and an attempt to flee involving hiding under a mattress at a hotel—testimony far outside the bounds of the Trial Judge’s rulings.

At a sidebar on defense counsel’s objection, the Trial Judge reminded the prosecutor that she “told him not to go into the life of a victim” and that his line of questioning at issue was “beyond” the limited topics of whether J.S. engaged in prostitution and posted ads on Backpage.

The prosecutor brazenly defended his questioning, saying:

MR. RAPP: Well, I have to tell the story.

THE COURT: Well –

MR. RAPP: No. Let me — Let me just finish.… She’s got to give some type of a story here how she ends up with —

THE COURT: Actually she doesn’t.…I’m not going to allow this.

The Trial Judge then warned the prosecutor: “you need to be very careful.” After the prosecutor yet again tried to defend the inappropriate testimony as being “part of the story,” the Trial Judge told the prosecutor in no uncertain terms: “these details are violating my order that you not go into the sort of details of her life as a prostitute.”

Following this sidebar, Rapp asked the woman how long she had been trafficked: “105 days,” she replied. Rapp continued to refer to that “105 days” in his examination of the woman, drawing testimony from her that she had been “raped for money” three or more times a day over that 105 day period.

(Interestingly, the woman also recounted how, as a minor, she was arrested by local police at one point and later released because the police could not determine her actual age.)

The defense repeatedly objected and Brnovich repeatedly sustained, but the testimony made it into the record nonetheless.

Fichtner’s Folly

As a result of such duplicity, Brnovich granted a defense motion for mistrial on Sept. 14. Ruling from the bench, the judge chastised prosecutors for taking advantage of the “leeway” she gave them during trial, stating that “in the opening, and with every witness thereafter, it seems, the government has abused that leeway.”

Brnovich later recused herself from the case, with Judge Diane Humetewa assigned to take her place. Humetewa was left to rule on a motion to dismiss arguing that a retrial would violate the defendants’ Fifth Amendment right not to be tried twice for the same offense, aka, double jeopardy.

The U.S. Supreme Court sets a high bar for dismissal after a defense motion for mistrial is granted. Defendants must demonstrate that the prosecution intended to provoke, or ‘goad,’ the defense into moving for a mistrial.

Humetewa was unconvinced and declined to dismiss the case, finding 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.”

The judge hung much of her decision on Brnovich’s comment that she did not believe the “misconduct” she identified was “intentional misconduct.”

But at that time, the defense had not yet filed a motion concerning double jeopardy. So Brnovich was not ruling on the issue when she spoke. Moreover, the actions she cataloged in her mistrial ruling illustrate a deliberate pattern of wrongdoing by the government.

The defense surmises Brnovich’s comment suggested that she did not view the misconduct as needing to be reported to the prosecutors’ respective state bars.

Following Humetewa’s ruling, Lacey and Larkin appealed to the Ninth, asking the court to overrule Humetewa.

The defense’s opening brief argues that the prosecution team’s “constant violations of evidentiary rulings” were not accidental.  Mistrial was “both the government’s goal and the necessary consequence of its repeated misconduct.”

The case is now on hold, pending the outcome of the double-jeopardy appeal.

Rapp was not the only prosecutor who participated in trial misconduct. As Brnovich observed in her mistrial ruling, senior DOJ trial attorney Reggie Jones’ shrill, hyperbole-filled opening statement came “close to causing a mistrial” by itself.

Not only did Jones display hardcore porn that never appeared on Backpage (nor would it, given the site’s ban on such imagery), his opening was littered with almost 50 references to child sex trafficking, 12 references to sex trafficking, and, as the appeals brief notes, “repeated, conclusory  assertions about sex-trafficking and child sex-trafficking being associated with ads on Backpage (with the government having no ability or intention to prove such assertions).”

Notably, Backpage’s former owners, veteran newspapermen Michael Lacey and Jim Larkin, are not charged with sex trafficking, child sex trafficking or anything like it.

Rather, they face up to 100 charges related to the facilitation of misdemeanor state prostitution offenses in violation of the U.S. Travel Act. The government argues that Lacey, Larkin and their four co-defendants are vicariously liable for the criminal acts of others who placed ads on Backpage.

That’s an absurd proposition on its face, made more absurd by the trial testimony of California special agent Brian Fichtner. On direct examination, Fichtner told the jury that the hundreds of ads he reviewed during a 2015 investigation of Backpage “appeared to be blatant prostitution ads.”

But Fichtner sang a different tune on cross-examination. He admitted that the vaguely-worded ads on Backpage were lawful. He could not make a prostitution bust based on the ads alone. And he admitted that the ads could be for perfectly legal adult services, including escorts, massage, dating or even live sex shows.

Fichtner’s testimony compounded the prosecution’s problems. Before trial, Brnovich conceded that her final instructions to the jury would likely need to include something about the First Amendment’s presumptive protection of all speech and the prosecution’s burden to prove that the speech on Backpage was illicit.

Now one of the prosecution’s most important witnesses was countering the government’s line that the language in Backpage’s ads was for obviously-illicit transactions.

Wrong-Way Reggie?

The defense appeal argues that the “seasoned prosecutorial team’s goading began during opening argument” and  “continued with each witness.”

Following Fichtner, the prosecution’s provocations increased during the testimony of professional government witness and anti-porn zealot, Dr. Sharon Cooper.

As Judge Brnovich noted on declaring a mistrial, Cooper, a pediatrician, emphasized “child sex trafficking above everything else,” and she gave opinions about Backpage’s reputation that were “not tethered to any communication with the defendants.”

The defense attempted to block Cooper from testifying, but Brnovich allowed it, ruling that the government could solicit testimony from Cooper on two narrow topics: “the vernacular affiliated with prostitution” and “how sex-trafficking occurs on the Internet.”

But Jones did not heed those instructions, causing the defense to object. The appellate brief explains what happened next:

“At a sidebar, the court reiterated that the government could not go into the ‘relationship between traffickers and pimps and that whole psychology,’ but could solicit testimony about how ‘sex trafficking occurs on the internet.’  After this ruling, the prosecutor still asked about ‘child pornography,’ ‘child sexual abuse,’ ‘internet crimes against children,’ ‘digital crimes against children,’ ‘sex trafficking of children,’ ‘child sexual exploitation,’ ‘sex trafficking in children,’ ‘sex trafficking involving minors,’ “prostitution of children,’ and ‘trafficking of  children.'”

The defense objected more than 50 times during Cooper’s testimony. Brnovich also tried to keep Cooper in her lane, asking Jones at one point whether a question had anything to do with the 50 ads mentioned in the indictment.

The brief notes: “Each time the government solicited testimony from Cooper on child sex-trafficking, the government knew appellants would object and, if the government persisted, move for mistrial.”

Mistrial “was the necessary result of the government’s misconduct,” argues the brief, and, “after Agent Fichtner’s concessions, mistrial was also necessary to stave off acquittal.”

In granting the mistrial, Brnovich chastized the prosecutors, saying, “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.”

But the prosecution was playing the long con, essentially winning itself time to revamp its case by forcing a mistrial. Government attorneys are salaried, and the “firm” they work for prints money.

Lacey and Larkin don’t have the luxury of government sinecures. Nearly all of their assets, even those unrelated to Backpage, have been seized by the feds. They’re out on bonds of $1 million apiece, and their lawyers have gone into the red defending them.

Early on in the trial, the government even took the rare step of seizing about $10 million from defense attorneys’ retainer accounts, depriving the defense team of needed funds and denying two of Lacey and Larkin’s co-defendants of their counsel of choice.

In other words, the prosecution has had no qualms with breaking the rules, over and over again.

From invading attorney-client privilege to blocking the admission of exculpatory government memos to destroying the Backpage website and tearing apart its servers, the government has been willing to violate every norm in its vendetta against Lacey and Larkin.

Provoke a mistrial? Of course, the government provoked a mistrial. Now it’s a matter of convincing the Ninth Circuit of same.

Please also see:
Judge Vacates Feb. 9 Trial Date in Lacey/Larkin Case, Awaiting Outcome of Ninth Circuit Appeal
and
Facts Contradict Maggy Krell’s Claim that Backpage’s Demise Helped Victims/Survivors