The Ninth Circuit scheduled oral arguments for Sept. 2 on a lower court's refusal to dismiss the Lacey/Larkin case following a mistrial due to prosecutorial misconduct.
On Sunday, the Ninth Circuit Court of Appeals tentatively scheduled oral arguments in the Lacey/Larkin case for Friday, September 2, nearly a year after prosecutorial misconduct caused a mistrial in the high-stakes First Amendment donnybrook.
The hearing is one of several to be heard that same day, starting at 9 a.m. in the court’s San Francisco location, with each side given 15 minutes before a panel of three judges. A notice on the federal docket states that the panel could still decide to forgo oral arguments and rule from the briefs in the case.
In their filings before the Ninth, attorneys for veteran newspapermen and former Backpage owners Michael Lacey and Jim Larkin contend that federal prosecutors provoked the Sept. 2021 mistrial, deliberately ignoring U.S. District Court Judge Susan Brnovich’s orders by repeatedly discussing and eliciting testimony regarding prejudicial topics : specifically, sex trafficking and child sex trafficking, which are unrelated to the underlying charges.
This McCarthyesque smear was both calculated and false. Lacey and Larkin are not charged with such crimes, and could never be.
Rather, they and four others face up to 100 counts related to the facilitation of misdemeanor state prostitution offenses under the U.S. Travel Act. Prosecutors assert that Lacey, Larkin, et al. are vicariously responsible for illicit acts allegedly connected to otherwise legal adult advertisements for escorts, massage, striptease, etc. that once ran on the classified listings site, Backpage.com.
Lacey and Larkin’s attorneys assert that in the run-up to last year’s trial, prosecutors were suddenly confronted with the proverbial pachyderm in the courtroom, the one obstacle they’d been sidestepping since the FBI arrested Lacey and Larkin in 2018 and seized and shut down Backpage in a glaring example of direct government censorship: the First Amendment.
The prosecution’s theory of the case was that “anyone could tell” that the adult-themed ads posted on Backpage by its users were for prostitution. But Backpage forbade illegality of any kind, including direct language offering sex for money. Federal courts repeatedly held that the ambiguous language and racy photos in these ads were protected by the First Amendment.
In June of last year, Assistant U.S. Attorney Kevin Rapp blundered in court, insisting that “escort services” were illegal in all states save for parts of Nevada, effectively conflating such services with prostitution. But defense attorneys corrected him, noting that escorting is, in fact, legal and often regulated by cities and states. At the time, Judge Brnovich seemed to agree that there was a difference between escort services and prostitution.
Then, less than a month before trial, prosecutors and defense attorneys tangled again on whether or not the jury would be instructed on First Amendment law, either before the trial or before the jury began its deliberations.
Lacey’s attorney Paul Cambria explained that U.S. Supreme Court precedent held, “All speech and press are presumptively protected under the First Amendment.” Though Brnovich did not include a First Amendment admonition in her preliminary instructions to the jury, she seemed inclined to give them one before they deliberated.
“Whether the ads are protected or not is a decision for the jury, so the jury has to know the law,” Brnovich remarked at the time.
The Feds’ Fatal Flaw
Such an instruction would have been fatal to the prosecution’s theory of the case. As a result, according to the defense’s reply brief before the Ninth Circuit, prosecutors intentionally disregarded Brnovich’s orders to curb discussions of sex trafficking and child sex trafficking, which she ruled to be subsets of prostitution.
The government’s lead prosecutor, Reggie Jones, mentioned sex trafficking and child sex trafficking more than 50 times in his opening statement. And Rapp’s questioning of a witness, who advertised herself and had been advertised by others on Backpage, delved into her life as a teenage sex trafficking victim, including references to rape, further poisoning the jury.
Prosecutors again doubled-down on this smear tactic after one of the government’s key witnesses, Brian Fichtner, a cop with the California AG’s office, backfired on them, severely undermining their case.
On cross-examination, Fichtner conceded that the adult-oriented ads he’d reviewed on Backpage were presumptively legal. He could not make a prostitution arrest based on the content of those ads and didn’t know of anyone who had. Fichtner also was forced to admit that the ads could be for adult services that were legal in California, such as stripping, escorting, even private sex shows.
Fichtner was a wrecking ball, further motivating the prosecution to continue to defy the judge. The prosecution hammered away at “child sex trafficking,” eliciting additional inflammatory testimony from its supposed trafficking “expert,” anti-porn/anti-sex work extremist Dr. Sharon Cooper.
The defense had no choice: It moved for a mistrial.
Judge Brnovich granted the mistrial motion on Sept. 14, a mere eight days into a trial expected to last three months. From the bench, she explained that she had granted the prosecution some leeway in discussing sex trafficking and child sex trafficking, “Yet in the opening, and with every witness thereafter, it seems, the government has abused that leeway.”
The defense later moved to dismiss the case, arguing that a retrial would violate the Fifth Amendment’s prohibition on “double jeopardy,” i.e., trying someone twice for the same crime. Judge Brnovich recused herself without explanation on Oct. 29, 2021, leaving her replacement, Judge Diane Humetewa, to rule on the dismissal motion.
Declining a defense request to hold a formal evidentiary hearing, Humetewa shot down the request for dismissal on Oct. 29, ruling that the defense had not met the high bar set by the U.S. Supreme Court’s 1982 decision in Oregon v. Kennedy, which requires the defense to prove the prosecution provoked a mistrial before invoking the double jeopardy rule.
The defense believes Humetewa erred in her decision. It asks the Ninth to reverse Humetewa’s ruling, or, alternatively, to vacate Humetewa’s order and send the case back to her “for a full evidentiary hearing.”
Humetewa is the fourth judge to sit on the case, which is now more than four years old.
Will the defense convince the Ninth to finally put an end to the federal government’s unhinged vendetta against Lacey and Larkin?
If not, a new trial could be in the offing, and with it a new mountain of legal bills for Lacey and Larkin. Talk about piling on, almost all of their assets were seized by the government in 2018, and their defense suffers as a result.