In the latest filing connected to its mandamus petition, the defense rejected the prosecution's trivialization of Judge Brnovich's appearance of partiality in the Lacey/Larkin case.
In a Dec. 29 submission to the Ninth Circuit Court of Appeals as part of an attempt to force federal Judge Susan Brnovich to recuse herself from the Lacey/Larkin case, defense attorneys batted away the prosecution’s contention that prejudicial statements made by the judge’s husband, Arizona Attorney General Mark Brnovich, are irrelevant and do not create an appearance of bias.
The filing was part of the latest round of legal fisticuffs over the defense’s request to the high court for a so-called “writ of mandamus,” which would order Judge Brnovich to do what she has so far refused: recuse herself from the criminal case involving award-winning newspapermen Michael Lacey and Jim Larkin, the former owners of the online listings giant, Backpage.com.
Though Lacey and Larkin, the co-founders of an alternative newspaper chain that once included the Village Voice and the LA Weekly, sold Backpage in 2015, prosecutors are attempting to hold them accountable for alleged illegal acts connected to 50 adult ads uploaded to Backpage by its users, out of the millions of legal adult and non-adult ads that appeared on the site before the federal government seized Backpage on April 6, 2018, removing it from the internet.
Regardless of the fact Lacey and Larkin never saw these ads and do not know the persons connected to them, the U.S. Department of Justice seeks to hold the two men (and their four co-defendants) vicariously liable for them. As a result, Lacey and Larkin face 100 counts of conspiracy, money laundering and the facilitation of prostitution in violation of a relatively obscure federal law, the U.S. Travel Act.
Judge Brnovich is the third judge to date on the case, the previous two having recused themselves on their own, without any prompting from the parties. But in September 2020, the specter of judicial bias reared its head when a member of the defense team came across a booklet published by the Arizona Attorney General’s Office in June 2018, shortly after Lacey and Larkin were indicted.
The booklet essentially declares Backpage guilty of facilitating prostitution and, more heinously, child sex trafficking. It opens with a “Letter from Mark” and a photo of the AG, and it was by no means a one-off. Further investigation discovered a host of problematic statements and positions by the AG, his office and groups that his office publicly “partnered with.”
More recently, an August 2020 webinar from the AG’s office declared that Backpage “was where the vast majority of all advertisements were posted for sex trafficking.” (Note: Lacey and Larkin are not charged with sex trafficking, which involves either adults forced into the sex trade, or children; but prosecutors regularly conflate sex trafficking with consensual adult prostitution in order to smear them.)
Further, in August 2017, AG Brnovich also signed a letter to Congress along with other state AGs, asking Congress to rewrite federal law so that he could prosecute Backpage, which the letter insisted was “complicit” in soliciting “sex traffickers’ ads” for its website.
The AG’s office has also endorsed bogus statistics and inflammatory language used by anti-trafficking organizations cited by the AG’s publications. The cumulative effect could not be ignored, argued the defense, so it moved Judge Brnovich to recuse herself as required by a federal statute, which states that a judge “shall disqualify” themselves in any proceeding in which their impartiality “might reasonably be questioned.”
But Judge Brnovich declined to recuse herself, insisting at one point that her husband’s statements as the top, elected law enforcement officer in Arizona regarding Backpage were unimportant, because this case “is not about Backpage.”
On Nov. 18, the defense took the extraordinary step of asking the Ninth Circuit Court of Appeals to order Judge Brnovich’s recusal. Such mandamus (Latin for “we order”) petitions rarely get past initial legal hurdles, and the prosecution has argued that the petition was doomed from jump.
However, on December 8, a two-judge panel of the Ninth Circuit Appeals Court, which included the Chief Justice for the Ninth Circuit, issued an order stating, “This petition for a writ of mandamus raises issues that warrant an answer.”
The same order instructed the government to file a response to the petition on Dec. 22, with a reply to that response due from the defense on Dec. 29. The panel also invited Judge Brnovich herself to weigh in, but so far she has not done so.
The government’s Dec. 22 response is a near masterpiece of obfuscation, bad faith and willful blindness.
Prosecutors cannot contest the well-documented public statements made by AG Brnovich and others speaking on his behalf, which insist on Backpage’s guilt. So instead, the prosecution contends that the AG’s incendiary declarations are unimportant and do not lend to the appearance of partiality by the judge.
For instance, at one point the prosecution asserts, incredibly, that the defense has “not identified any public statements by AG Brnovich about defendants or this case.”
Which is about as disingenuous as President Bill Clinton’s onetime assertion that he had not had “sexual relations” with “that woman,” Monica Lewinsky.
AG Brnovich, in his role as Arizona’s most powerful law enforcement official, has repeatedly accused Backpage of engaging in illicit business practices, including facilitating prostitution and sex trafficking. Moreover, Backpage is at the heart of the prosecution’s case against Lacey and Larkin, and the indictment name-checks Backpage more than 600 times.
“As such,” the defense writes in its rebuttal, “the government’s claim that AG Brnovich’s statements about Backpage have no bearing on the petitioners is pure sophistry.”
The government also tries to scuttle the mandamus petition by asserting that AG Brnovich has “no direct or indirect stake in whether any defendant is convicted or acquitted,” as the AG is technically not part of the case, which is being prosecuted by the feds.
However, the defense objects to this characterization in its reply:
“But AG Brnovich is a politician and Arizona’s top elected law enforcement officer, who made sex trafficking and child sex trafficking key agenda items in his political campaigns and during his tenure as Attorney General. As part of his high-profile anti-trafficking campaign, he personally and publicly declared Backpage.com facilitated sex trafficking, solicited ads from sex traffickers, and profited from unlawful sex trafficking and prostitution—allegations at the core of the government’s Case.”
Mark Brnovich is in his second term as AG and precluded from running for a third term, but he is widely expected to run for governor in 2022, and a high-profile conviction of the two former owners of Backpage, which the AG has spent much time maligning, could certainly be seen as a feather in the AG’s hat.
And if it is the AG’s wife who sends Lacey and Larkin to prison, so much the better for a gubernatorial campaign.
Judge Brnovich has argued that she can be impartial as the trial judge, and the prosecution asserts that it is wrong to attribute the views of one spouse to another.
But as the defense has pointed out in its pleadings on this matter, it need not prove “actual bias.” The mere appearance of partiality is enough to warrant recusal. And the objective legal test is whether “a reasonable person,” advised of all the facts, would question the judge’s partiality.
The Brnoviches are a very public couple, who have each assisted the other in their respective careers. While a state court judge, Susan Brnovich supported her husband’s run for AG, even appearing in campaign videos that can still be found online.
Similarly, the AG backed his wife’s successful nomination to the federal bench in 2018, and their very distinct, shared last name makes it unlikely that a jury member, for instance, will forget who is married to whom.
AG Brnovich is no house husband, after all. And his opinions as AG carry inordinate weight.
As the defense notes in its reply:
“Although some courts have refused recusal based on spousal views on social or public policy issues, no comparison exists between a judge’s spouse stating views on issues of broad public concern and a state’s top elected law enforcement officer effectively declaring defendants guilty who will be tried by his district judge spouse.”
Which is ultimately why the defense concludes, “The purity of the judicial process cannot be maintained with this judge presiding over this case.”
Now, it’s left to see whether or not the Ninth Circuit concurs.
Tucson defense attorney and former Arizona State Bar President Michael Piccarreta told Front Page Confidential that there were legitimate issues regarding the AG’s statements and positions and so the defense was obliged to bring them to the fore.
He said he thought it was a “positive sign” that the Ninth Circuit accepted the mandamus petition, as “mandamus is a very unusual remedy.” But Piccarreta was cautious about reading tea leaves, and would not prognosticate on the petition’s outcome.
Piccarreta is very familiar with the ups and downs of this litigation and the extraordinary zeal with which the U.S. Attorney’s Office is prosecuting Lacey and Larkin.
He once represented former Backpage exec Andrew Padilla, until the feds seized all monies set aside for Padilla’s defense. Piccarreta and another attorney were forced to withdraw from the case. (Note: From jump, the feds seized all of Lacey and Larkin’s assets in an attempt to cripple their defense.)
Which again seems to speak to his caution about case developments, like the Ninth welcoming the mandamus petition.
Days before the Ninth Circuit weighed in on Dec. 8, affirmatively signaling that it would address the mandamus petition, Judge Brnovich had ruled on Dec. 4 that she would not stay the case pending a sign from the Ninth.
Instead, she scheduled a status conference in the case for Monday, Jan. 4, where the issue of whether to stay the case, with trial currently set for April 12, 2021, is certain to come up.