A new defense filing rebuts the government's contention that John and Cindy McCain had nothing to do with the prosecution of journalists Michael Lacey and Jim Larkin.
Nothing to see here, move along.
That’s the government’s tack in its response to a Nov. 4 defense filing in the Lacey/Larkin case that raised the possibility of an “appearance of partiality” on behalf of federal Judge Diane Humetewa in Phoenix.
Humetewa was chosen by lot to be the trial judge after Judge Susan Brnovich suddenly recused herself Oct. 29, following Brnovich’s declaration of a mistrial in September.
At issue are Humetewa’s extensive ties to the late Sen. John McCain, his wife Cindy and The McCain Institute, all vociferous critics of veteran newspapermen and former Backpage owners, Michael Lacey and Jim Larkin.
For decades, Sen. McCain shepherded Humetewa’s career, giving Humetewa her first job out of law school and championing her historic appointments to be U.S. Attorney for Arizona in 2007, and in 2014, a federal judge. For her part, Humetewa donated money to The McCain Institute, participated in its functions and gave money to McCain’s political campaigns. She was also a pallbearer at McCain’s funeral.
But Assistant U.S. Attorney Andrew Stone argues in the government’s response that these facts are irrelevant since the McCains are not “parties or witnesses” to the case, “nor have they played any role whatsoever in this prosecution.” Stone rejects as “far-fetched” the notion that there might be grounds for recusal because the McCains and Humetewa were/are “friends.”
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
In a reply to Stone filed Wednesday, the defense restated that it has not formally asked Judge Humetewa to recuse herself. Rather, as it is obliged to do under Ninth Circuit precedent, the defense brought the matter of a possible appearance of a conflict to the court’s attention, asking for a status conference to discuss this and other issues.
Humetewa denied the defense’s motion for a status conference and informed the parties that she would treat the request as a motion for recusal.
As for Stone’s contention that the McCains had nothing to do with the prosecution of Lacey and Larkin, that’s about as believable as O.J. Simpson’s hunt for Nicole’s “real” killer.
Means, Motive, Opportunity
The defense filing notes that the McCains “cast a long shadow” over the case.
Indeed, John McCain, Cindy McCain (now U.S. ambassador to the U.N. World Food Program), and The McCain Institute have “repeatedly accused defendants Lacey and Larkin and Backpage.com of intentionally facilitating sex trafficking,” while the institute “funded research targeting Backpage and seeking to show it facilitated sex trafficking.”
“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
In addition, Sen. McCain helped pass laws that were intended to facilitate Backpage’s prosecution. He also investigated Backpage through the Senate’s Committee on Indian Affairs and its Permanent Subcommittee on Investigations (PSI).
In Jan. 2017, during a PSI hearing with Lacey and Larkin before him, McCain blasted what he called Backpage’s “illegal facilitation of prostitution and child sex trafficking,” after the PSI produced a heavily-biased report that falsely accused Backpage of facilitating sex trafficking. The PSI report became a roadmap for prosecutors, who plan to use the report at trial.
— John McCain (@SenJohnMcCain) August 12, 2017
At the PSI grilling, Lacey and Larkin refused to testify based on their rights under the First and Fifth Amendments to the U.S. Constitution. In the audience that day was McCain’s wife Cindy.
Sen. McCain even helped the first prosecuting attorney in the case, Dominic Lanza, become a federal judge, not long after Lanza organized the arrests of Lacey and Larkin on multiple counts of conspiracy, money laundering and the facilitation of misdemeanor state prostitution offenses in violation of the U.S. Travel Act.
As Lanza’s nomination moved out of committee, McCain’s ally, U.S. Sen. Jeff Flake, praised Lanza for taking down Backpage, while acknowledging that its owners “were not legally obligated to do so.” (The defense’s filing omits this tidbit.)
Glad the Senate is taking up our bipartisan #SESTA thanks to the leadership of @senrobportman. It's long past time we hold accountable websites like Backpage that knowingly facilitate the trafficking of innocent women & children.
— John McCain (@SenJohnMcCain) March 15, 2018
Dish Served Cold
The defense takes note of the bad blood that arose due to the hundreds of articles written about the senator and his wife by reporters for the Phoenix New Times (PNT), the flagship publication of a 17-paper chain of alt-weeklies that Lacey and Larkin once owned.
Over more than three decades, PNT’s columnists and investigative journalists called Sen. McCain the “most reprehensible” figure in the Keating Five scandal and exposed Cindy’s theft of and addiction to opioids from a medical non-profit that she ran.
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
One PNT cover story profiled the sordid source of Cindy’s fortune: her beer baron pop, Jim Hensley, who did time for bootlegging and was the protege of Kemper Marley, a notorious organized crime figure who allegedly ordered the 1976 assassination of Arizona Republic reporter Don Bolles.
As co-chair of the Arizona Human Trafficking Council, chair of The McCain Institute’s Human Trafficking Advisory Council, and lastly chair of The McCain Institute itself, Cindy McCain waged an unprecedented jihad against Backpage and Lacey and Larkin, appearing before Congressional committees (including those led by her husband), writing op-eds, denouncing Backpage in the media, applauding the arrests of Lacey and Larkin, and recently, lamenting the mistrial on Twitter.
The McCain Institute followed Cindy’s lead, berating Backpage on its website and on social media. (Sen. McCain also regularly lambasted Backpage on Twitter.) For instance, in one Jan. 2020 tweet, the institute quoted McCain from her appearance at a forum in Florida, where she took credit for Backpage’s demise.
“We shut down the biggest perpetrator of all, that was an organization called Backpage,” Cindy said.
Someone at the institute tacked on, “@cindymccain on the bipartisan fight to stop one of the internet’s human trafficking enablers.”
Adding injury to invective, the institute also “funded numerous research projects by ASU social work professor Dominique Roe Sepowitz targeting Backpage.com and seeking to show it facilitated sex trafficking,” the defense explains in its reply.
The government lists Roe-Sepowitz, an infamous anti-sex work advocate, as an “expert witness” for the prosecution.
The Known Unknown
Humetewa is the fourth judge to preside over the Lacey/Larkin case. Three previous judges recused themselves, two after having sat on the case for considerable periods of time.
Last year, the parties asked Judge Brnovich to recuse herself, based in part on the appearance of partiality created by the belligerent accusations and actions of her husband, Arizona Attorney General Mark Brnovich, toward Backpage.
One of Judge Brnovich’s criticisms of the recusal motion was that it was not timely, as she had been on the case since March 2019.
She refused to recuse herself, and the defendants pursued a writ of mandamus from the Ninth Circuit ordering Brnovich to recuse. However, the appeals court found that there was no “clear error” in Brnovich’s decision and denied the defendants’ request. Several months later, Brnovich recused herself.
Judge Brnovich did not state why she recused herself. Neither did her two predecessors. Federal judges are not required to do so.
Given this background, it’s understandable that the defense would bring up the Humetewa-McCain connection and ask for a status conference to discuss the matter with the judge.
The relevant federal code states that “Any justice, judge, or magistrate judge of the United States shall disqualify [herself] in any proceeding in which [her] impartiality might reasonably be questioned.”
The objective standard, according to the precedent cited by the defense, is whether “a reasonable person with knowledge of the facts would conclude that the judge’s impartiality may be reasonably questioned.”
There need be no actual bias, nor is the defense arguing there is bias in this case. The appearance of partiality is enough to merit recusal.
Judge Humetewa has said that she regards herself as one of the McCain “alumni,” which she described as “a family of sorts.”
And in a piece published after his death, Humetewa wrote that she had been “elated to have Senator McCain speak at my judicial investiture,” where she personally thanked 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.”
Interestingly, in virtual testimony before the U.S. House Judiciary Committee in Feb. of this year, Humetewa spoke from what looks like her office. Prominently displayed on one shelf is a framed photo of what looks like John McCain with Humetewa. The photo appears to be autographed.
As their pleading puts it, the defendants know that “the Court has had long-standing relationships with certain parties who are inextricably intertwined” with the Lacey/Larkin case.
The defense then adds:
“While some publicly available information suggests that the nature and depth of those relationships was such that recusal may be required, Defendants cannot fairly assess those issues without more information about those relationships.
That information is known to the Court, but not to Defendants, which is why Defendants undertook the preliminary step of requesting a status conference. If any of those relationships might require recusal, the Court is obligated to inform the parties.”
What happens next is entirely up to Judge Humetewa. It’s her call whether the man or woman on the street would, if advised of all the facts, perceive an absence of impartiality due to her association with the McCains.
And ICYMI, please also see:
Lacey/Larkin Motion Questions Judge Humetewa’s Ties to John McCain
Judge Brnovich Recuses Self from Lacey/Larkin Case
- Ninth Circuit Panel Rejects Lacey/Larkin’s Double Jeopardy Appeal - September 22, 2022
- Lacey/Larkin Appeal Argued at the Ninth, Where the Government Drops ‘Napalm,’ Yet Again - September 3, 2022
- Watch Oral Arguments in the Lacey/Larkin Appeal Live on Friday, Sept. 2 at the Ninth Circuit - September 1, 2022