Knowing their case had gone drastically awry, in early September, government attorneys “goaded” the defense into successfully moving for a mistrial in the Lacey/Larkin case, part of a long pattern of prosecutorial misconduct. To protect the defendants from a violation of the Constitution’s Fifth Amendment right against double jeopardy, U.S. District Judge Diane Humetewa should dismiss the case with prejudice.

So goes a recent, blistering defense reply to a November filing by the feds, in which the government argued prosecutors were innocent of any malfeasance. The feds asked Judge Humetewa to reject a defense request for dismissal and go forward with a lengthy, expensive retrial, currently scheduled to begin Feb. 9, 2022.

Oral arguments on the motion to dismiss will take place this Friday at 9 a.m. at the Sandra Day O’Connor U.S. Courthouse in Phoenix.

Attorneys for veteran newspapermen and former Backpage.com owners Michael Lacey and Jim Larkin argue that the prosecution’s first attempt to prosecute the defendants self-destructed when one of its key witnesses went rogue under cross-examination and belied the prosecution’s strategy to insist that all of the ads that once appeared in the massage, escort and dating sections of the Craigslist-like site were illegal on their face.

Defense attorneys and a string of federal and state court rulings argue the opposite: the vague wording of the ads and the sometimes scantily clad or nude images that accompanied them were protected speech under the First Amendment and Section 230, the federal law that generally holds interactive computer services blameless for the posts of their users.

Reportedly, the U.S. Department of Justice’s own legal analyses drew the same conclusions. But this did not stop the government from indicting Lacey, Larkin and their four co-defendants in 2018 on up to 100 counts of money laundering, conspiracy and facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act.

The prosecution’s case foundered with its initial witness, California Department of Justice special agent Brian Fichtner, who relayed to the jury the details of his failed 2015 investigation into Backpage, which led to false “pimping” charges to be brought against Lacey and Larkin by then-California Attorney General Kamala Harris, even though Harris knew she lacked the jurisdiction to do so. Harris’ overtly political prosecution may have helped her election to the U.S.  Senate in 2016, but the charges were twice booted by California state judges.

On direct examination, Fichtner reviewed a video he’d made in 2015 of Backpage ads in the Sacramento area.  Fichtner pored over massage, escort and dating ads that sometimes featured nudity no more explicit than one would find in Sports Illustrated or an old Playboy. One ad simply showed a photo of a woman’s hand holding an upright dildo, which could have been torn straight from the pages of Cosmopolitan.

Read: Reason Magazine Blasts ‘The Collapsing Federal Prostitution Case Against Backpage.com’

The wording of the ads was equally anodyne, with titles such as “smoking, hot, skilled, juicy, available,” “100 percent real, upscale blond bombshell, elite,” and “magical lips, nice booty, cute face, spank.” Though the prosecution proffered that Fichtner’s testimony would show that the listings “were nothing less than prostitution ads,”  under cross-examination, Fichtner contradicted this assertion.

As the defense notes, Fichtner was forced on cross-examination to admit the following:

 . . . a) many adult activities involving sexual activities and money are legal; b) the ads he reviewed were all facially lawful; c) he could not determine whether any of the hundreds of ads he showed the jury related to lawful activity or unlawful activity; and d) he had never arrested a person for a prostitution offense based only on the content of a Backpage adult ad and he knew of no law enforcement officer who had done so . . . Put differently, Fichtner testified that experienced law enforcement officers could not look at the content of Backpage adult ads and know whether the posters of those ads were engaged in lawful or unlawful activities, while the government’s theory was grounded on convincing the jury anyone could tell that most or all Backpage adult ads were obvious ads for prostitution, so by publishing those ads Defendants had to have intended to facilitate prostitution.

Fichtner’s admissions on cross-examination “were devastating to the government’s case and would become even more so if Judge Brnovich ultimately instructed the jury that Backpage adult ads were presumptively protected by the First Amendment,” as the defense had requested.

Mistrial Most Foul

As a result, the government “doubled down and goaded a mistrial through repeated inflammatory testimony about rape and child sex trafficking,” though this was in violation of multiple orders from Judge Susan Brnovich, then the trial judge on the case. With a subsequent witness, anti-porn zealot Dr. Sharon Cooper, the government elicited prejudicial testimony that Brnovich had warned prosecutors to avoid.

Similarly, the prosecution harped on another witness having been trafficked for “105 days,” though, again, Brnovich admonished the prosecution to avoid such details concerning crimes with which the defendants are not charged.

Brnovich declared a mistrial on Sep. 14, saying she had given the prosecution some “leeway” in the beginning of the case, but “with the opening and with every witness thereafter, it seems, the government has abused that leeway.” Brnovich went through a far-from-complete list of government errors, saying that she didn’t “see any of these as intentional misconduct.”

Shortly thereafter, Judge Brnovich recused herself from the case without explanation. The government in its pleading suggests that Brnovich’s remark concerning “intentional misconduct” should be enough to spare the prosecution further punishment for its misdeeds.

But the defense counters that Brnovich’s remark “was not a determination of intent” and that “the remark was wholly inconsistent with Judge Brnovich’s objective findings and stated bases for the mistrial.” Judge Humetewa now must evaluate the record and make a ruling based on the law, “not merely defer to Judge Brnovich’s non-finding.”

The defense also argues that Humetewa should use her supervisory authority to dismiss the case with prejudice based on the government’s repetitive misconduct.

For example, the government continues to stonewall the defense on materials related to a 2012-13 DOJ investigation into Backpage, which reportedly found no evidence of criminality by the site. That same investigation produced two memos obtained and discussed by WIRED and Reason magazines, which the prosecution has so far blocked from entering the case.  The defense argues that the underlying facts of the investigation should be disclosed by the prosecution under “the Brady rule,” which requires prosecutors to cough up exculpatory material.

Apparently, the government knows the weaknesses in its case, but pursues it anyway. The defense illustrates this, almost as an aside, when it quotes from a 2012 email from Ernie Allen, the onetime president and CEO of the National Center for Missing and Exploited Children (NCMEC), which at one time partnered with Backpage in locating endangered minors and later pivoted to call for Backpage’s shutdown.

In the email, Allen, a witness for the prosecution, writes to his colleagues — one of them being porn-foe Sharon Cooper — about a conversation with then-U.S. Attorney General Eric Holder and a subsequent meeting with members of the Justice Department.

Allen adds:

In my meeting with the Attorney General, I argued that while they might have civil immunity, I didn’t understand how that protected them from criminal prosecution. I argued that they were facilitating a criminal enterprise, a federal crime. Several weeks later, the AG sent prosecutors from his Criminal Division along with several FBI agents to NCMEC to meet with me.  What they said was that they didn’t think that Backpage’s actions rose to the level of criminal culpability. They warned users about misuse of the site, made people click on answers promising not to do anything wrong, etc. DOJ felt that their activities did not generate the requisite ‘intent’ to hold them criminally accountable.

Allen said that he disagreed, but that he understood why the Obama administration would want to avoid doing “anything that looks like Internet censorship.”

Subsequent administrations have had no such qualms. Still, this email from a government ally intent on turning the DOJ against Backpage reads like a stunning, albeit second-hand, admission that the government was fully aware in 2012 that Backpage was operating within the law.

What other evidence is necessary to prove that this prosecution should be immediately dismissed in the name of justice?

Please also see:
Lacey/Larkin Defense Asks Judge to Release Portion of Illegally-Seized Assets
and
Prosecutors (Again) Falsely Equate ‘Escorts’ with ‘Prostitution’ in Latest Filing in Lacey/Larkin Case