On Monday, a Ninth Circuit Appeals Court panel shot down a defense request in the Lacey/Larkin case to order Judge Brnovich's recusal.
In a four-page ruling issued on April 5, a three-judge panel of the Ninth Circuit Court of Appeals unanimously rejected a defense petition that the court order federal Judge Susan Brnovich’s recusal from the Lacey/Larkin case.
Attorneys for award-winning newspaperman Michael Lacey and Jim Larkin had argued that Judge Brnovich should not preside over the case due to an “appearance of partiality” created by prejudicial statements made by the judge’s husband, Arizona Attorney General Mark Brnovich, concerning the now-defunct classified listings giant, Backpage.com.
Lacey and Larkin, who owned Backpage from 2004 till 2015, face 100 counts related to the facilitation of prostitution in violation of the U.S. Travel Act. They and their four co-defendants have pleaded not guilty. The trial is scheduled to begin Aug. 23.
Without delving into the petition’s underlying issues, the Ninth ruled that the defense’s request for a “writ of mandamus” ordering Judge Brnovich’s removal from the case did not meet the high standard set for immediate relief.
Quoting previous Ninth Circuit decisions, the panel referred to mandamus (Latin for “we order”) as a “drastic and extraordinary remedy.” It pointed out that petitioners must demonstrate their “right” to mandamus is “clear and indisputable” and that the lower court committed “a clear error as a matter of law.”
But the panel found that Judge Brnovich had “committed no clear error” last year when she denied a defense motion asking her to step aside.
The defense’s petition “flounders on this factor,” the panel wrote in its memorandum, which is not considered precedent-setting.
In its petition to the Ninth, defense attorneys also contended that AG Brnovich stands to gain from the outcome of a case over which his wife now presides.
After all, the AG is a politician and is expected to run for governor of Arizona in 2022.
(Please note: The AG is a state official, and he is not pursuing the federal prosecution of Lacey and Larkin, which is the purview of the U.S. Department of Justice.)
Backpage has long been a whipping boy for ambitious politicians, and the AG is no exception. He and persons acting on his behalf have repeatedly and publicly declared Backpage guilty of facilitating prostitution due to adult ads posted to the Craigslist-like site by its users.
However, this is a point to be determined by a jury.
AG Brnovich and his minions have not only asserted that Backpage is guilty of facilitating prostitution, which involves adults engaging in consensual commercial sex, they also contend that Backpage engaged in the heinous crime of child sex trafficking.
But federal prosecutors have not charged Lacey, Larkin or their four co-defendants with any form of sex trafficking — which by law involves either minors involved in commercial sex or adults coerced into the sex trade.
Nor could they.
The incidents cited in the defense’s petition to the court include the following:
- In an official AG webinar on human trafficking, promoted by the AG’s office, a narrator states that “Backpage.com . . . [was] where the vast majority of all advertisements were posted for sex trafficking and sexual exploitation.”
- A booklet titled, “Human Trafficking: Arizona’s Not Buying It,” published June 2018 — two months after Lacey and Larkin’s arrests — and introduced with a “letter from Mark,” defined Backpage.com as “an online classified advertising site used frequently to purchase sex.”
- An August 2017 letter to Congress signed by AG Brnovich asked that Congress amend Section 230 of the Communications Decency Act, which the letter alleged was being used “as a shield by those who profit from prostitution and crimes against children . . . such as Backpage.com.” The missive also accused Backpage of “facilitating—and profiting from” illegal activities stemming from adult ads.
The Lie This Time
In reality, the feds’ indictment largely rests on 50 adult ads cherry-picked from the millions of classified ads that once ran on the site.
Two-thirds of those 50 ads appeared after Lacey and Larkin sold the company. The prosecution does not allege that Lacey and Larkin ever saw any of these third-party ads or knew of illegal acts connected to them.
Instead, the prosecution relies on a vague, Orwellian standard of vicarious criminal liability, under which a cell phone company or even UPS could be held liable for drug deals done using its service.
This perverse theory is one of many elements of a vindictive prosecution by the U.S. Department of Justice, which resulted in the destruction of Backpage’s website by the FBI and the haphazard dismantling of the site’s servers.
The prosecution has suppressed evidence in the case, showing that Backpage cooperated extensively with law enforcement to hunt down and prosecute actual sex traffickers.
Nor does the prosecution want the jury to see evidence showing that the government was aware that many categories of sex work are actually legal, and that almost always there’s nothing in such ads to indicate they’re unlawful.
Backpage’s policies were vetted by teams of lawyers, and the site’s right to publish was vindicated by various state and federal courts, which held that Backpage was protected by the First Amendment and the CDA’s Section 230, also known as “the First Amendment of the internet.”
The prosecution’s effort to railroad Lacey and Larkin continues apace.
A yet-to-be-selected jury now stands between them and the possibility of the two septuagenarians spending the rest of their lives behind bars.