Judge Brnovich spiked a defense request for a mistrial in the Lacey/Larkin case, while exculpatory DOJ memos are raised and defense attorneys wail on prosecutors with 1A arguments.
Update, Thursday, 9/9/2021: At the beginning of trial this morning, codefendant Andrew Padilla reported to the judge that he was not feeling well. In an abundance of caution, Judge Brnovich ordered that he have a rapid Covid test. Court was recessed for the day. Depending on the outcome of the test and any further symptoms Padilla might have, the court may or may not reconvene on Friday.
Right out of the gate on Wed. morning in federal court in Phoenix, U.S. District Court Judge Susan Brnovich denied a defense request for a mistrial in the prosecution of storied newspapermen Michael Lacey and Jim Larkin.
Last Friday, the defense cried foul after government attorney Reggie Jones falsely accused Lacey and Larkin as having been involved in child sex trafficking, while largely dodging a discussion of the actual, underlying charges in the case, which pertain to facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act.
— Elizabeth Nolan Brown (@ENBrown) April 12, 2018
Neither Lacey, nor Larkin, nor their four co-defendants are charged with any form of sex trafficking. The up to 100 charges against Lacey, Larkin, et al. are white-collar offenses, having to do with their onetime ownership of the classified listings website, Backpage.com.
But before the jury entered the courtroom on Wed., Brnovich rejected the notion she had precluded the prosecution’s discussion of sex trafficking, a heinous crime involving either children in the sex trade, or adults through force, fraud and coercion.
“Child sex trafficking and adult sex trafficking are subsets of prostitution and are not precluded,” she told attorneys for both sides.
That is a troubling definition given that prostitution is usually a misdemeanor offense involving consensual commercial sex among adults, one often prosecuted by municipalities as a nuisance. On the other hand, sex trafficking is a federal felony involving heavy penalties for violators.
Brnovich also waved off defense protests that the government had casually conflated escorting and prostitution, the former being legal and regulated in many municipalities, and the latter being largely illegal. She said it was the government’s view that most escort ads are actually obvious prostitution ads and that prosecutors believe the evidence will show that.
However, the judge appeared quite concerned about an apparent discrepancy between what the prosecution said one of its witnesses will say about an alleged statement by Michael Lacey and what the witness actually told the FBI in an official interview.
“I’m Jessica, the hottie you will be hooking up with tonight . . . I as well like to be pleased . . . Sorry, I do not cater to African-American men.” — as read by the very non-erotic voice of a California cop
At the end of his opening statement on Sep. 3, prosecutor Jones alleged that Lacey had, outside of a U.S. Senate hearing where he had been subpoenaed to testify, made a comment to the mother of a girl who allegedly had been the subject of an ad on Backpage.
“[S]he crossed paths with defendant Michael Lacey,” Jones claimed. “And defendant Lacey told her, point-blank, that if these yahoos would keep their fucking mouth shut, we wouldn’t have all these issues.”
Judge Brnovich said Jones’ incendiary statement was “not consistent” with the “302s” — shorthand for FBI reports. The judge read one FBI 302 as saying, “Lacey made this comment to reporters outside the U.S. Senate hearing.”
Brnovich continued, “The 302 clearly says he made this comment to reporters.”
Prosecutor Andrew Stone told Brnovich, “We believe [the witness’s] testimony will say it was directed toward her.”
Brnovich was skeptical, telling Stone, “I’d rather have a mistrial now than when she testifies.”
Stone said there was a “scrum of reporters” around Lacey when this supposedly happened, but the witness “will testify consistent with how Jones made it in the opening statement.”
Interestingly, I was present at that Senate hearing in January 2017. I heard no such comment from Lacey, nor saw any such confrontation. I did see the scrum, though.
The DOJ Memos
At the beginning and end of Wednesday’s court session, Larkin-attorney Whitney Bernstein took on the issue of two memos authored by DOJ attorneys in 2012 and 2013, which apparently contain exculpatory information and have so far been excluded from the trial.
Bernstein said the memos had been “abundant in the press,” and, indeed, WIRED mentioned the memos in a 2019 article, and Reason magazine followed up by publishing both memos online. The prosecution claimed it inadvertently revealed the memos to the defense during the discovery process.
In 2019, Judge Brnovich denied a prosecution motion that the defense be sanctioned as a result of the WIRED piece, finding that the memos had been in circulation for some time before being ordered sealed by a previous jurist in the case, Judge Steven Logan.
Bernstein said she had not read the memos, but she contended that the government’s opening argument, and its contention that Backpage knew it was breaking the law from 2010 to 2013 or so, opened the door to allowing the memos in, or at least the documents and interviews that backed up the memos.
She said the DOJ had done an in-depth investigation of Backpage at the time and concluded that there was “no evidence of any criminality” on Backpage’s part. The investigation involved “dozens of witnesses” and “thousands of documents,” but Logan ruled the memos to be the “work product” of DOJ attorneys, and therefore required the defense to destroy the documents and precluded defense attorneys from using them in the case.
Even if the memos were the DOJ’s “work product,” Bernstein insisted that “facts are not work product,” and the government’s refusal to disclose these materials “doesn’t comply” with the Brady rule. The reference to “Brady” is to a 1963 U.S. Supreme Court ruling that says prosecutors have an obligation to turn over exculpatory material to the defense.
The prosecution seemed flummoxed by Bernstein’s argument, and Brnovich wanted more information before ruling on the matter. The subject is expected to come up on Thursday.
It’s a significant one. For the government to fight disclosure of exculpatory material strikes this writer as monumentally unfair. These exculpatory memos are in the public domain and have so far have been excluded on what seems like a technicality.
‘Controversial’ Is Not ‘Illegal’
Much of Wed. was taken up with opening statements by defense attorneys for the defendants, beginning with Larkin’s lead attorney from California, Thomas Bienert, and ending with Lacey’s attorney from Buffalo, New York, Paul Cambria.
They were the bookends of the day, with both arguing that Lacey and Larkin are lifelong, award-winning journalists who’ve battled overweening police power and venal politicians through the newspapers they helped found, first the Phoenix New Times in 1970, and later, the 17-paper alt-weekly chain, Village Voice Media.
Bienert, an amiable, plain-speaking Californian, gave a detailed history of Larkin’s humble beginnings in Phoenix and his partnership with Lacey in running the papers. Bienert held up a past issue of the Phoenix New Times, featuring a critical cover story by Lacey on the controversial, former Phoenix police chief Ruben Ortega.
Lacey and Larkin’s papers were free and financed in part by classified ads, some of which appeared on the premium “Back Page” of the paper, which was the origin of the name for Backpage.com, Bienert said. It featured ads for psychics, cures for male-pattern baldness, and bankruptcies, as well as adult-themed ads for a “Dial-a-Stripper” service and another one promising, “Girls, girls, girls.”
In the late 1990s and early 2000s, with the internet in its infancy, the pair’s weeklies and the “Back Page” of classifieds moved online. Backpage.com began in 2004 after being proposed by advertising exec Carl Ferrer, the government’s star witness and the man to whom Lacey and Larkin ultimately sold Backpage in 2015.
Larkin and Lacey did not review ads, but in general, their policy toward advertisements were what Bienert described as the “Lacey and Larkin method,” in which ads were either deemed “legal or illegal.”
Legal was allowed, illegal was not.
“Controversial does not equal illegal,” Bienert advised the jury.
Lawyers, consultants and experts helped Backpage design best practices that excluded problematic content posted by users, he said. When it came to the “adult” ad category, a whole slew of adult services were perfectly legal. Bienert offered the example of a “nude maid” service, where people would come over to clean your house “buck naked.”
He added that “a lot of adult activity is legal,” such as escort services, which are not the same as prostitution.
Prostitution has a specific meaning, which differs from state to state, Bienert explained. Arizona law proscribes “sexual conduct” for money or compensation. He broke down the “sexual conduct” to three main aspects that could make it illegal: intercourse, oral conduct and any touching of another’s private parts.
This left a lot of paid sexual activity that was perfectly okay under the law, he claimed. As a result, none of the ads referenced by the government in its opening statement were on their face illegal.
“These ads were not ‘prostitution,'” he said.
Bienert went over numerous law enforcement commendations from the FBI and Homeland Security as well as local and international police agencies, thanking Backpage for responding quickly to subpoenas and for going above and beyond what was required. Former FBI director Robert Mueller even awarded Backpage a citation in 2011 for the company’s help with a criminal investigation.
Children were rescued, the law enforcement testimonials said, because of Backpage.
Bienert also described at length federal court rulings from districts in Massachusetts, Washington state, Tennessee, New Jersey, Illinois and elsewhere, ruling that the adult ads deemed objectionable by politicians and state attorneys general were protected both by the First Amendment and Section 230’s grant of immunity for interactive websites.
Jones had repeatedly accused Lacey and Larkin of “deception” and “greed,” but the deception was really on the government’s end, Bienert said, with its attempt to make legal speech seem illegal, and with dirty tricks like placing the defendants’ mug shots on emails that had been edited by the government, then projecting them on a screen for the jury.
Some of the ads mentioned by the government were from Backpage’s “dating” section. And none of the sometimes saucy language of the ads cited by the prosecution was illegal.
Bienert predicted that the jury would find the defendants “affirmatively innocent.”
Deliberations “will be a no-brainer,” he concluded.
The Real Deal
Attorneys for Lacey and Larkin’s four co-defendants followed, each reinforcing points made by Bienert and arguing that they often deferred to the advice of experts or to the guy who was actually running the operation, Carl Ferrer.
Finally, Cambria took the conn, concluding statements by the defense. His booming delivery commanded the jury’s attention as he painted Lacey and Larkin as First Amendment stalwarts.
“Some people hide behind the First Amendment, some people believe in the First Amendment,” Cambria said. “They are the real deal.”
Their papers criticized public officials like Sheriff Joe Arpaio, “who retaliated by arresting them in the middle of the night and put them in jail” in 2007. Lacey and Larkin sued for wrongful arrest and scored a $3.75 million settlement, giving it all away to Latino-rights organizations.
Prosecutor Jones had claimed that money was Lacey and Larkin’s driving force. Cambria sneered at the assertion, citing the pair’s considerable donations to the nonprofit group Children of the Night, which rescued lost runaways, and the fact they saved the historically all-black Booker T. Washington school in Phoenix, which had been scheduled for destruction, as well as their $3.75 million giveaway.
Cambria told of the 3,800 writing awards their papers won, and described Lacey as “a newspaperman, an editor, a writer,” who would “write articles when there was an exaggeration” about trafficking or Backpage. The site itself was created by Ferrer, and Ferrer and sundry experts had averred that the site was operating on the up-and-up.
Moreover, said Cambria, “the courts agreed the First Amendment applied” to the ads on the site. He asked the jury, if they were in Lacey’s position, and the head of the FBI and countless other law enforcement agencies were referring to your company as a “partner,” what would they think?
“Would you think you were promoting crime?” he asked.
Cambria went through the reports Backpage sent to the National Center for Missing and Exploited Children (NCMEC), a non-profit clearinghouse for such reports, which were then forwarded to law enforcement. Any ad with a photo that Backpage suspected of being of someone under 25 was reported to NCMEC.
Ferrer told Lacey there was no illegality on the site. The site was spending millions of dollars training law enforcement on how to catch predators, sending staff to testify against pimps at trial, and constantly beefing up its moderation. Lacey did not see the ads mentioned in the indictment until after he was arrested by the feds in 2018.
“Some groups will say, ‘We told Backpage to take down [its adult section],'” Cambria said. “They are the ‘desk people.'”
But law enforcement “in the trenches” saw the site as a tool to address a serious problem. According to Cambria, “the FBI didn’t want Backpage taken down.”
When the feds seized the site in April 2018, the free speech rights of Backpage’s users were irreparably violated — adult ad posters and non-adult ad posters alike. Cambria said “the bad people went to other websites,” some overseas, “outside the jurisdiction of the U.S.,” where they don’t have to comply with subpoenas.
He rebutted the government’s spin on an alleged statement by Lacey for a proposed editorial that Backpage had made prostitution “transparent.” Lacey was referring to the records Backpage kept, he said, a paper trail the company turned over to law enforcement when subpoenaed in order to save people from harm and catch wrongdoers.
“These people,” Cambria said, referring to the defendants, “are part of the real solution.”
Following Cambria, the prosecution called its first witness, a white, male cop from the California Department of Justice who explained how he created a fake adult ad for a fake sex worker on Backpage for a sex worker. Prosecutor Peter Kozinets had him read verbatim some of the adult ads appearing on Backpage years ago.
This led to the unintentional hilarity of this law enforcement stiff reading such verbiage in monotone:
“I’m Jessica, the hottie you will be hooking up with tonight . . . I as well like to be pleased . . . Sorry, I do not cater to African-American men.”
Which reminded me of the obscenity trials of yore, obscenity cases that some would like to bring back, with the federal government dictating what we can or cannot see or read.
It’s exactly this sort of censorship that the government has imposed via this prosecution and the seizure of Backpage.
If the prosecution wins, the chilling effect will resemble a new Ice Age in free expression, one that we all will have to deal with — or risk being threatened with the inside of a jail cell.