In a new motion, the Lacey/Larkin defense raises the issue of Judge Humetewa's "close personal and professional connection" to John and Cindy McCain. Humetewa labeled the motion a recusal request.
A new motion filed Nov. 4 in Phoenix by defense attorneys in the Lacey/Larkin case raises questions about the “potential appearance of lack of impartiality” on the part of federal Judge Diane Humetewa due to her “close personal and professional connection with the late Senator John McCain and his wife, Cindy McCain.”
The nine-page motion outlines Humetewa’s relationship with the McCains and the McCain Institute at Arizona State University, as they have been “outspoken critics of Backpage.com and a driving force behind political efforts to shut down the site.” It notes Humetewa’s “significant support for organizations associated with the McCains, including financial contributions” to the McCain Institute.
Congrats to #Arizona's Diane Humetewa – confirmed today as the first Native American woman to ever serve on the federal bench!
— John McCain (@SenJohnMcCain) May 14, 2014
“Because Defendants are aware of some facts that could cause a reasonable person with
knowledge of the facts to conclude that Your Honor’s impartiality might reasonably be
questioned, Defendants request a status conference to alert the Court in a timely manner,” the motion reads.
Though the defense does not ask the judge to recuse herself, Humetewa issued an order Friday stating that she will “construe” the filing to be a motion for her recusal. The judge also set an expedited briefing schedule for the matter.
It’s no secret that Sen. McCain assisted Humetewa throughout her career, hiring her to be counsel to the Senate Committee on Indian Affairs in the mid-90s and backing her to become U.S. Attorney for Arizona in 2007.
Deeply proud to speak at Investiture Ceremony today for Judge Diane Humetewa – nation's 1st female Native American federal judge! #Arizona
— John McCain (@SenJohnMcCain) October 17, 2014
The Senator also engineered Humetewa’s historic appointment to the federal bench in 2014 as the first Native American woman to hold such a post. And he spoke at her investiture ceremony when she became a judge.
Those ties continued during Humetewa’s time on the bench. In 2016, Humetewa participated as a panelist at the McCain Institute’s prestigious Sedona Forum. She and her husband donated money to the institute, and according to the website OpenSecrets.org, Humetewa donated a total of $3,000 to McCain’s political campaigns.
Humetewa was a pallbearer at Sen. McCain’s 2018 funeral. And in a remembrance she authored that year for the Native American news outlet, indianz.com, the judge discussed McCain’s impact on her life.
“I made sure to personally thank [Sen. McCain] for giving me my first job as a lawyer on the Senate Committee on Indian Affairs, and quite possibly, for helping me to get what is likely my last job as a lawyer, as a federal judge,” she writes.
In its motion, the defense observes that Humetewa is the fourth judge to preside over the Lacey/Larkin case, with three judges having recused themselves to date.
“With respect to the immediate past judge [i.e., Judge Susan Brnovich], defendants moved for recusal over a year ago based upon Attorney General Brnovich’s adversity to Backpage.com,” the motion states. “In denying Defendants’ motion for recusal at that time, Judge Brnovich criticized Defendants for not raising the issue earlier.”
Yesterday, the NGLs met with Arizona District Court Judge Diane Humetewa, discussed solving social challenges through entrepreneurship with @seedspot, and listened to Dr. Jason Robert lecture on leadership, ethics and innovation #NGLASU pic.twitter.com/rSjOUP0Tqh
— McCain Institute (@McCainInstitute) April 19, 2018
Just last week, Judge Brnovich unexpectedly recused herself from the case, with Judge Humetewa assigned by lot to replace her. As with prior judges on the case, Judge Brnovich did not give a reason for her recusal, and she is not required to do so.
The defense motion lists a number of other issues pending before the court, such as a defense request for the release of some monies improperly seized by the government and a seperate motion asking the prosecution to release exculpatory materials to the defendants.
Humetewa set Nov. 8 as the deadline for the government’s response to the defense’s recent motion, and Nov. 10 as the date for the defense to reply to that response.
Lacey/Larkin vs. The McCains
The enmity between the McCains and Backpage’s former owners, Michael Lacey and Jim Larkin, could put the Hatfield/McCoy feud to shame.
For more than 40 years, Lacey and Larkin owned the Phoenix New Times (PNT), which was founded in 1970 as a response to the Kent State massacre and the Vietnam War. Over the years, PNT’s journalists wrote hundreds of critical articles, commentaries and blog posts about the McCains, starting from John McCain’s election to the U.S. Congress in 1982 and continuing through his career in the Senate to his runs for President.
— Elisa Massimino (@ecmassimino) April 8, 2016
Some of PNT’s reporting caused lasting damage to Sen. McCain’s political legacy.
Highlights include: columnist Tom Fitzpatrick’s withering, 1989 assessment of McCain’s involvement in the Keating Five scandal (“McCain: The Most Reprehensible of the Keating Five“); a bombshell 1994 account of Cindy McCain’s opioid addiction and her theft of pills from a nonprofit she ran (“Opiate for the Mrs.“); and a cover story detailing the mob ties of Cindy’s father, Jim Hensley, a convicted bootlegger who obtained his lucrative beer distributorship from infamous organized crime figure, Kemper Marley, the man believed to have put the 1976 hit out on assassinated Arizona Republic reporter Don Bolles (“Haunted by Spirits“).
Lacey and Larkin sold PNT in 2012 and Backpage in 2015. But they continued to offer critical coverage of the McCains through their website Front Page Confidential, which they founded in 2017.
U.S. District Court Judge Diane Humetewa talks about her memories of Senator John McCain and also talks about legislation he worked on to help the American Indian Community. pic.twitter.com/10kZYtSFEj
— Arizona PBS (@arizonapbs) September 1, 2018
For their part, Cindy and John McCain campaigned tirelessly against Backpage and proved instrumental in the site’s downfall.
Sen. McCain participated in and oversaw hearings related to Backpage, falsely accusing it of promoting sex trafficking. He was a member of the U.S. Senate’s Permanent Subcommittee on Investigations, which investigated Backpage and produced a report on the site that became the basis of a 100-count indictment against Lacey and Larkin.
The senator also backed the elevation of Dominic Lanza, the federal prosecutor involved in the arrests of Lacey and Larkin, to the U.S. District Court in Arizona.
US Senate confirms former federal prosecutor Dominic Lanza as new federal judge for Arizona. Involved in Backpage & Jared Loughner prosecutions. Part of Federalist Society pipeline to federal bench. https://t.co/vkiHwamhRv
— Brahm Resnik (@brahmresnik) September 7, 2018
When the Senate Judiciary Committee passed Lanza’s name to the floor for approval, Sen. McCain’s ally, Arizona’s junior Senator Jeff Flake, praised Lanza, saying the prosecutor “coordinated with federal and local law enforcement just this past week to raid the homes of Backpage.com’s owners and seize the website.”
Flake noted that Backpage’s owners “refused to take the website down,” though he conceded, “They were not legally obligated to do so.”
Sen. McCain also backed the Stop Enabling Sex Traffickers Act (SESTA) as a means of going after Backpage and its founders, though the DOJ ultimately did not use the law to prosecute Backpage.
“For years, Backpage.com has knowingly facilitated online sex trafficking and child exploitation, destroying the lives of innocent young women and girls,” McCain explained at the time. “It is disgraceful that the law as written has protected Backpage from being held liable for enabling these horrific crimes.”
“We shut down the biggest perpetrator of all, that was an organization called backpage.”- @cindymccain on the bipartisan fight to stop one of the internet’s worst human trafficking enablers. #stateoftheworld2020 #EndTrafficking pic.twitter.com/YQUxRCXQQy
— McCain Institute (@McCainInstitute) January 10, 2020
Of course, McCain’s statement was a bald-faced lie. Backpage was a classified ads site, started in 2004 as a competitor to Craigslist. Users posted ads for everything from yard sales and apartment rentals to legal adult services, such as massage, dating, escorts and striptease.
And as Sen. Flake’s comments at the Lanza hearing appear to acknowledge, federal and state courts repeatedly found Backpage’a adult ads to be shielded by the First Amendment and Section 230, the federal law that effectively made the person posting an ad liable for its content.
Testimony from government witnesses in the first trial of Lacey and Larkin (which ended in a mistrial) also made clear that adult ads on the site were legal and could not be the basis of a prostitution arrest.
But Cindy and John McCain were so dead set on revenge that the legality of Backpage’s adult ads were of no concern to them.
Cindy kept up a steady drumbeat over Backpage, denouncing it in the media, on Twitter and elsewhere. In 2018, she applauded Lacey and Larkin’s arrests and the site’s destruction by the feds. And she vilified Backpage in her roles as co-chair of Arizona’s Human Trafficking Council, chair of the McCain Institute’s Advisory Panel, and finally as chair (now “chairman emeritus“) of the institute’s board of trustees. (Note: On Oct. 28, she resigned from her post at Arizona’s Human Trafficking Council after being confirmed by the U.S. Senate to be ambassador to the U.N. World Food Program.)
Most recently, on Sep. 15, Cindy took to Twitter yet again, farming out an article about the mistrial, with the commentary that it was a “sad day for every child who has been trafficked on Backpage.”
It’s a sad day for every child who has been trafficked on Backpage. When do we stand up and protect our vulnerable children? https://t.co/Aw4t6jXOH4
— Cindy McCain (@cindymccain) September 15, 2021
Ironically, it was such scurrilous accusations by the prosecution that caused the very mistrial Cindy McCain was bemoaning.
The McCain Institute itself — on Twitter, on its website and through its signature event, the Sedona Forum — followed Cindy McCain’s vituperative lead in blasting Backpage as the repository of all evil.
The Institute has funded the flawed research of Arizona State University sociology professor Dominique Roe-Sepowitz, an anti-sex work advocate who has made mining data from Backpage’s site the cornerstone of her career. The prosecution has listed Roe-Sepowitz as one of the “experts” it plans to call.
So far, the defense has merely raised the issue of a possible appearance of partiality regarding Judge Humetewa. Lawyers for the defendants did not formally ask her to recuse herself, and they did not argue that Humetewa is biased.
Federal law does not require actual partiality for recusal. Rather, it states, “Any justice, judge, or magistrate judge of the United States shall disqualify [himself or herself] in any proceeding in which [his or her] impartiality might reasonably be questioned.”
That is, the appearance of partiality is enough. And whether that appearance of partiality exists is up to the judge to decide.
In a related development, Humetewa recently scheduled oral arguments for Dec. 3 on the defense’s motion to dismiss based on double jeopardy.