UPDATE March 23, 2023: Judge Humetewa issued an order today delaying the start of trial to August 8, 2023. She also decided against severance.
See judge’s order, here:
Journalists Michael Lacey and Jim Larkin tell a federal judge that they do not oppose severing their retrial in Phoenix from four co-defendants, with some caveats, while prosecutors oppose the idea.
Responding to a recent inquiry from U.S. District Court Judge Diane Humetewa, veteran newspapermen and former Backpage owners Michael Lacey and Jim Larkin told the judge in separate filings that they do not oppose separating their retrial in Phoenix from that of their four co-defendants, assuming the court agrees to delay a new trial, now scheduled for June 20.
The government, however, vigorously opposes the idea of severance, raised by Humetewa in an order dated March 10. Her query came after new defense attorneys requested a continuance so that they can prepare for a trial involving over 70 witnesses for the prosecution and millions of documents.
In the government’s response to Humetewa, prickly federal prosecutor Kevin Rapp claimed a severance would mean “forcing the parties to try this case twice,” causing “further delay.” It also would create “two 12-week trials,” he wrote. Any postponement would somehow “inconvenience” the mightiest power on planet Earth, otherwise known as the United States Government.
Rapp and other government attorneys will duke it out with the defense Monday afternoon in Phoenix’s federal court in a hearing before Humetewa.
The irony of Rapp’s complaints about the possibility of two new trials is rich, since prosecutorial misconduct caused the September 2021 trial to end in a mistrial, after a few days of testimony.
In violation of the orders of the trial judge, U.S. District Susan Brnovich, prosecutors repeatedly made statements and prompted testimony about inflammatory topics, specifically rape, sex trafficking, and child sex trafficking, though neither Lacey nor Larkin (nor any of their co-defendants) are charged with such crimes.
Rather, Lacey and Larkin are charged with facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act — which is a helluva lot less lurid.
They’re also charged with attendant money laundering and conspiracy charges, all because they once owned a Craigslist-like classified listings site, where people could post ads for everything from antiques for sale and dog walkers to escorts and dating.
The prosecutors’ disingenuous pitch-and-switch tactics forced Brnovich to declare a mistrial. She later recused herself and was replaced by Humetewa.
But the government refuses to drop the charges, thus necessitating a second trial. And perhaps more than a second trial.
That is, the government seems poised to cause yet another mistrial, or in the case of severance, mistrials.
Why? Because the prosecution’s theory of the case has not changed. The government wants to hold Lacey, Larkin, et al. vicariously liable for criminal acts committed by others — unknown to them — who uploaded adult-oriented ads to Backpage.
Which is as absurd as wanting to hold Ford Motors criminally liable because the company is generally aware that its SUVs are used in bank robberies.
Prosecutors know their case is weak: While it was in existence, numerous federal and state courts ruled that Backpage was operating within the law.
Moreover, one of the prosecution’s lead witnesses at the first trial, an investigator with the California AG’s office, testified under cross-examination that the content of Backpage’s adult-themed ads was legal and had not, on its own, led to a prostitution arrest.
This weakness likely explains why the first trial’s lead prosecutor Reggie Jones mentioned sex trafficking or child sex trafficking more than 60 times in his opening statement, instead of fully explaining the actual charges, which were bogus when Lacey and Larkin were arrested in 2018, just as they are now.
Souls on Ice
Lacey, Larkin and their co-defendants are all charged differently, though each of them face at least one conspiracy charge, which is a reason the government says it wants to try them together.
The four co-defendants — former Backpage execs and employees — took varying stances in their responses to the court, with two arguing that severance was appropriate in their cases and one opposing severance because the defense team shares its resources and severance would cause a hardship.
Scott Spear, an ex-Backpage executive, concurred with Larkin’s court filing on the matter, which states Larkin has “no objection to the Court ordering a severance to the extent the Court believes it is necessary to do so to grant his continuance request.”
Both men have new attorneys, with Spear’s attorney, Eric Kessler, being appointed by the court on January 13, and Larkin’s new attorney, Tim Eckstein, joining the case on December 13.
Spear and Larkin’s motion for continuance notes the daunting task now before both lawyers, as the government has produced through discovery, “178,486 documents, consisting of 4,900,586 pages.” Prosecutors also have “2,000 trial exhibits,” which contain “more than 19,000 documents.”
By the start of March, Kessler had not received all the necessary documents from the government. Kessler also has a murder trial scheduled for May in Maricopa County Superior Court, which obviously hamstrings him.
Eckstein’s ability to properly prepare for trial affects Larkin’s co-defendants.
As Lacey’s attorney, Paul Cambria, observed in Lacey’s court filing:
. . . Mr. Larkin’s new counsel had agreed to take responsibility for the same witnesses and exhibits as Mr. Larkin’s prior counsel. When Mr. Larkin’s new counsel stated that he would be ineffective if he was not afforded additional time to prepare, that meant that Mr. Lacey’s counsel, too, would be ineffective if the trial was not continued because it is not possible for Mr. Lacey’s counsel to take over preparation of witnesses and exhibits that Mr. Larkin’s counsel had agreed to handle since the inception of the case . . .
Larkin parted ways with his former attorneys in October 2022.
Retaining counsel for the length of this five-year prosecution has proved challenging, largely because the government seized almost all of Lacey and Larkin’s assets at the beginning of the case, even going so far as to seize monies set aside in lawyers’ trust accounts, leading to several attorneys withdrawing from the case.
And since the government sees Lacey and Larkin as their prime targets, impoverishing them impoverishes the defense in general.
The government held both men after their arrests for more than a week, forcing them to meet high bonds of $1 million apiece. And both have worn ankle monitors for five years running, though pre-trial services recommended in 2018 that they be released on their own recognizance.
In other words, the government, more than anything, wants Lacey and Larkin’s heads on proverbial pikes. But prosecutors have also engineered a show trial, with multiple defendants tied together by a “conspiracy” concocted by government apparatchiks.
So, whatever Judge Humetewa’s decision on these matters, the government’s prosecution oozes bad faith like puss from a putrid wound. And all of Rapp’s misdirection and gaslighting cannot stifle the accompanying stench.