On Wednesday, a three-judge panel of the Ninth Circuit Court of Appeals in San Francisco denied an attempt by veteran newspapermen and former Backpage owners Michael Lacey and Jim Larkin to reverse a lower court’s decision not to dismiss the case following a mistrial last year due to prosecutorial misconduct.

Read the Ninth’s Decision in the Lacey/Larkin Appeal

Defense attorneys argued that a retrial would violate the U.S. Constitution’s prohibition on double jeopardy.  But Lacey, Larkin and their four co-defendants faced a high legal bar on appeal: According to U.S. Supreme Court precedent, the defense had to demonstrate that the prosecution intentionally provoked the mistrial in order for the double jeopardy rule to apply.

The Ninth Circuit panel conceded that the government committed “misconduct” and “did elicit prejudicial evidence in violation of pretrial rulings,” but the panel ruled that the misconduct “was not so egregious as to compel a finding of an intent” to provoke a mistrial.

The panel further rejected the defense argument that the government “sought a mistrial in order to regroup and reorganize its case,” agreeing with U.S. District Court Judge Diane Humetewa to the effect that “the government had no reason to sabotage its own trial.”

This decision opens the door to a new trial, likely in 2023. Contacted for this article, Lacey told Front Page Confidential, “We intend to go to trial ASAP.”

Mistrial Anniversary

The Ninth’s decision comes one year after U.S. District Court Judge Susan Brnovich declared a mistrial in the case, just eight days into proceedings that were expected to last three months.

Brnovich ruled that the prosecution repeatedly defied her orders by mentioning and eliciting testimony regarding crimes Lacey, Larkin, et al. are not charged with: i.e., sex trafficking and child sex trafficking.

In reality, the defendants are not accused of ever having harmed a woman, a child or anyone for that matter. Rather, Lacey, Larkin and the rest face up to 100 counts of facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act, in addition to attendant money laundering and conspiracy charges.

Prosecutors allege that the defendants are vicariously liable for the illicit acts of others — alleged criminal acts linked by the government to legal adult ads posted by users of the now-defunct classified ad site Backpage.com. But instead of sticking to the actual charges regarding the facilitation of prostitution, prosecutors instead chose to poison the jury with inflammatory and prejudicial subject matter.

Brnovich ruled that “in the opening, and with every witness thereafter . . . the government has abused” the leeway she had given them early on.  She added that the  “cumulative effect” of the government’s misconduct “is something that I can’t overlook and won’t overlook.”

Brnovich later recused herself from the case for unknown reasons, with Humetewa replacing her, becoming the fourth judge to sit on the case since its inception in April 2018. Humetewa subsequently denied a defense motion to dismiss the case. The defense then appealed to the Ninth, which heard oral arguments from the parties on Sept. 2.

Will the 1A Prevail?

In its decision, the Ninth addressed three points raised by the defense as to why it believed the government sought to “goad” a mistrial: the defense’s arguments “regarding specific intent and the First Amendment”; the trial judge’s ruling that “escort services are legal”; and “the government’s poor showing at trial up to that point.”

Before and during the trial, the defense persuasively argued that all speech — including the publication of adult-themed ads on Backpage — is presumptively protected by the First Amendment, asking Brnovich, to include a jury instruction on First Amendment law.

The defense has since maintained that the likelihood of a First Amendment jury instruction, in part, motivated the prosecution to throw the trial and seek a do-over.

But the panel ruled that issues pertaining to the First Amendment and the legal standard of “specific intent” were well-known to the government and had been “extensively” briefed prior to trial.  The jurists wrote that the defense “failed to show that their arguments in support of jury instructions on these issues were so convincing as to require the government to rethink its case.”

The panel also decided that Brnovich’s ruling regarding the legality of escort services “would not reasonably deter the government from trying its case.”

And though the trial had been going poorly for the government, with one of the prosecution’s key witnesses admitting on cross-examination that Backpage’s ads for massage, dating, etc. were legal on their face, “the government’s case-in-chief was still in its infancy” with 70-plus witnesses to go.

Prosecutors “vigorously opposed Defendants’ motions for mistrial,” the panel observed, a point in the government’s favor. And the panel did not find that Humetewa plainly erred in refusing to hold an evidentiary hearing into the government’s conduct.

Process as Punishment

The prospect of a new trial is a daunting and expensive one, including for taxpayers, who foot the bill for this unhinged prosecutorial witch hunt.

By now, Lacey and Larkin have endured a pattern of prosecutorial wrongdoing that includes the destruction of evidence, invasion of attorney-client privilege and the seizure of all of their assets, including assets pre-dating the existence of Backpage.  The government also seized more than $10 million in attorney funds in an effort to bankrupt the defense.

Moreover, though pretrial services suggested the two men be released on their own recognizance, the feds insisted Lacey and Larkin post bonds of $1 million apiece, wear ankle monitors 24-7 and ask permission if they wished to travel outside Maricopa County.

All of this, because Lacey and Larkin formerly owned a website that hosted advertisements that federal and state courts have declared are protected by the First Amendment?

Indeed, these ads were once so commonplace and uncontroversial that they appeared in nearly all free alt-weeklies, the Yellow Pages and even respected dailies such as the Washington Post.

A new trial could easily stretch this prosecution into its fifth year, further challenging the First Amendment and imperiling freedom of speech, both online and off.

Please also see:
Lacey/Larkin Appeal Argued at the Ninth, Where the Government Drops ‘Napalm,’ Yet Again
and
Federal Vendetta Against Lacey and Larkin Enters Fourth Year