On Oct. 5 in Phoenix, federal Judge Susan Brnovich set a new date for round two of the Scopes Monkey Trial of the 21st Century: i.e., the DOJ’s railroading of veteran newspapermen Michael Lacey and Jim Larkin, onetime owners of the now-defunct Craigslist-knockoff, Backpage.com.

During a short, Tuesday-morning hearing, Brnovich scheduled the new trial to begin Feb. 9, nearly four years after the FBI arrested Lacey and Larkin, raiding their homes with guns drawn, terrifying their family members and seizing their assets in a bid to starve their legal defense.

What caused this overkill? The second coming of the Kray twins?

Hardly.

Rather, Lacey and Larkin, co-founders of Phoenix New Times and Village Voice Media, face up to 100 counts of conspiracy, money laundering and the facilitation of misdemeanor state prostitution offenses in violation of the U.S. Travel Act.

The Feds are too bold in their overreach prosecuting based on public opinion rather than facts. Everyone deserves a vigorous defense, especially those accused of the worst. Tabloid Prosecution. Great reporting by @ENBrown https://t.co/lsPF93yyvG

— Joseph Tully (@josephtullylaw) October 5, 2021

The U.S. Department of Justice wants to make Lacey, Larkin and their four co-defendants vicariously liable for criminal acts that the feds allege are connected to adult, massage and dating ads posted to Backpage by third parties, before the feds seized and took down the site in 2018.

Their first trial began Sep. 1 and ended in a mistrial on Sep. 14, after prosecutors, against the repeated warnings of federal Judge Brnovich, focused their case on heinous crimes the defendants are not accused of: specifically, sex trafficking and child sex trafficking. Brnovich said “the cumulative effect” of the prosecution’s persistent, inflammatory rhetoric “is something that I can’t overlook and won’t overlook.”

At Wednesday’s hearing, Larkin’s attorney, Thomas Bienert, told the judge that the new dates “seemed doable,” but he wondered whether a 12-week trial was necessary. Much of the time will be eaten up by the government’s 80-plus witnesses, many of them duplicative and unnecessary.

Bienert also raised the issue of more than $100 million in assets seized by the government via a federal court in California. The money remains in limbo while the criminal case in Arizona proceeds. The feds claim the now-frozen funds derive from criminal activity.

This is simply not true, whether it’s money derived from Backpage, or from Lacey and Larkin’s 40-plus years in the newspaper business. The indictment itself only cites 50 out of the millions of ads, adult and non-adult, that once ran on the site, and that speech was presumptively protected by the First Amendment.

Bienert said that he and three other private counsel in the case had done the last trial “in the hole,” and asked for pre-trial hearings to address the matter. Gary Lincenberg, the lawyer for one of Lacey and Larkin’s co-defendants, added that the case had cost more because of the many delays.

Brnovich was non-committal, but she admonished the defense for bearing some responsibility for delays in the case, supposedly for filing so many motions.

A Compelling Motion

One important defense motion currently before Brnovich concerns two exculpatory materials from an underlying DOJ investigation that contradict the government’s accusations against Lacey, Larkin and their four co-defendants, memorialized in two DOJ memos from 2012-3.

Prosecutors are so paranoid these documents could end up in the trial somehow that they have gone to extraordinary lengths to keep them under wraps. The memos are the result of a federal investigation and grand jury probe in Washington state that occurred in 2012-13, and they threaten to tumble the government’s case like a game of Jenga.

New trial date in Lacey/Larkin case, Feb. 22; jury selection will take place Feb. 9, 10 & 11. #Backpage #FirstAmendment https://t.co/z3P2ziMDta

— Stephen Lemons (@stephenlemons) October 5, 2021

In remarks to the court on Sep. 8 and in a motion filed a day later, Larkin’s attorney Whitney Bernstein argued that the government’s case did not jibe with the defense’s understanding of the facts summarized in the contested DOJ memos.

The government first revealed the memos in a data dump to the defense in 2018. Prosecutors claimed this was a mistake, and sought to claw them back. A previous judge ordered the defense to return the memos to the prosecution and destroy any copies, finding that they fall under the “attorney work product rule,” which generally precludes from discovery any oral or written materials prepared by an attorney in order to represent his or her clients.

Bernstein told Brnovich she never read the memos, as they are barred by the previous judge’s ruling. But the defense has reason to believe that the memos concluded that the 2012-13 investigation found “no evidence of criminality” on the part of Backpage. She added that by arguing the opposite during trial, the prosecution demonstrated the relevance of the facts regarding DOJ’s underlying investigation.

Berstein advised the court that “facts are not work product,” and the government’s refusal to disclose these materials “doesn’t comply” with “the Brady rule,” a reference to a 1963 U.S. Supreme Court ruling that says prosecutors have an obligation to turn over exculpatory material to the defense.

Bernstein also observed that the memos have been “abundant in the press.”

(In fact, both WIRED and Reason magazine obtained copies of the memos and discussed them in stories about the case. In 2019, the prosecution actually sought to sanction the defense for allegedly disclosing the documents to WIRED. Brnovich 86’d the government’s request, saying in open court that the memos were “old” and had “clearly been distributed to many people . . . other people that the government was working with.”)

Bernstein later filed a motion asking the judge “to compel the government to produce all materials from its . . . investigation that were relied upon when its attorneys concluded there was no evidence of criminality.” She also asks the judge to review the memos in camera, in order to determine “whether any information in the memos themselves could undermine in any way the positions that the government has currently taken.”

In her motion, Bernstein notes that under Brady and other SCOTUS rulings, defense lawyers are entitled to all evidence that is “favorable to the accused.” And investigative material leading to the DOJ’s conclusion of no criminality would certainly be that. Bernstein also points out that what little the government has turned over to the defense regarding the DOJ’s underlying investigation has been exculpatory.

She writes that “a central theme of the government’s case” is that Backpage “edited ads to remove terms ‘indicative of prostitution’ and then ran the ads with an intent to promote or facilitate prostitution.”

But Bernstein avers that in 2012-13, Backpage employees told investigators that “Backpage used a multi-tiered moderation system to prevent user ads that violated the website’s terms of use, including any that offered sex for money.”  Employees testified that “by mid-2012 Backpage forbade editing from then on and ads that contained disallowed terms were blocked or deleted entirely.”

She writes:

Evidence that the government knew in 2012 that the allegations it now advances are wrong is plainly material and exculpatory. Evidence that the government pursued a prosecution after acknowledging that Backpage’s actual conduct would not establish criminal knowledge or intent likewise is material and exculpatory. Defendants believe that other evidence the government obtained in the [2012/2013] proceeding will further support the defense and contradict the government’s charges.

Reggie’s Flaming Pantaloons

In a July 22 letter to the prosecution that is attached to her pleading, Bernstein advises the government that the defense believes the 2012-13 DOJ investigation reveals that there is “a wide range of lawful adult advertising and many Backpage adult ads encompassed lawful activities,” and that Backpage “cooperated extensively with law enforcement in their investigation and prosecution of users of its website who engaged in unlawful activities.”

The defense also believes, she states, that the government’s 2012-2013 investigation of Backpage found:

• No evidence that Backpage intended to promote prostitution or allowed ads to run on its website after learning they related to prostitution.

• No evidence that Backpage knowingly accepted adult prostitution ads or allowed adult ads relating to juveniles to remain on its website after learning the ads related to juveniles.

• No evidence of any intent to violate the law or of guilt.

In the government’s response to Bernstein’s motion, senior U.S. trial attorney Reggie Jones, the man whose inflammatory opening statement almost singlehandedly caused a mistrial, wrote that the memos and the underlying materials were not exculpatory, because the government later acquired other evidence of Backpage’s alleged guilt.

Talk about a non sequitur.

Jones maintained that the government had turned over some “grand jury testimony” and “other materials” to the defense, raising the obvious question in the mind of the reader: So why not disclose all of it?

A lifer in the DOJ’s “obscenity” section, Jones also focused on the vague language used in some of the ads mentioned in the indictment as evidence of illegality, such as, “Sometimes it’s all about the journey and the destination,” and, “Stacked college co-ed with the best mouth ever.”

Reggie must not get out much. Those statements are no more evidence of illegality than anything you would see on cable TV or Netflix. His obsession with such PG language recalls a famous quip from Lenny Bruce: “There are no dirty words, just dirty minds.”

I asked Tucson defense attorney and former Arizona State Bar President Michael Piccarreta what he thought of the government’s attempt to hide behind the work product rule.

Piccarreta is familiar with the case. He previously represented one of Lacey and Larkin’s co-defendants for eight months, until the feds improperly seized funds set aside for that person’s defense, forcing Piccarreta to withdraw.

“Must be some potent info in the materials they want hidden from view,” Piccarreta said via email.

“Good prosecutors disclose everything remotely relevant rather than risk issues later,” he added. “Win-at-all-cost prosecutors do not want to disclose for fear of hurting their case.”

Indeed, the prosecutors in the Lacey/Larkin case will do anything to prevail, even if it means violating the First Amendment and the rights of the accused, destroying evidence in the case and seizing all of the defendants’ assets in an attempt to break them.

“Good prosecutors” may exist, but that’s hard to tell by the actions of the government in the Lacey/Larkin case.

Please also see:
DOJ’s Epic Fail: Judge Declares Mistrial in Lacey/Larkin Case, Prosecution Nearly Weeps
and
Sex Workers Slam Arizona Republic Article Targeting Asian-Staffed Massage Parlors