Your taxes at work: Kamala Harris’s fave cop, California DOJ agent Brian Fichtner, spent around two days last week in the Lacey/Larkin trial reading saucy language and eyeballing naked and semi-naked ladies who allegedly once appeared in the Sacramento escorts section of the defunct classified listings site, Backpage.com.

This time he was doing it for federal prosecutors, whose big plan to convict veteran newspapermen Michael Lacey and Jim Larkin, owners of Backpage from 2004-2015, apparently involves “shocking” a jury of adult women and men with mini-videos of women bathing or showering, some 6 or 15 seconds long.

That’s right, Fichtner told the Lacey/Larkin jury that short videos of nude women bathing, uploaded by Backpage’s users to accompany their adult ads, indicate prostitution was rampant on the classified listings site.

Under questioning by prosecutor Peter Kozinets, Fichtner explained how in 2015 he wasted precious law enforcement resources at the Cali DOJ reviewing page after page of escort ads, featuring the sort of racy imagery you could also see on a music video by Cardi B.

Fichtner also read some of the vague, sexual verbiage from the escort ads, which he had recorded with special software as he perused them. He did so in a monotone as flat and gray as his suit.

“I’m your romantic goddess, Dina,” he read from one. “I’m here to please or be pleased from my hips to my lips.”

Such language indicated illicit activity, averred Fichter, who apparently has never read Lady Chatterley’s Lover or seen a teen or adult comedy from the last four or five decades; e.g., Superbad, American Pie, Animal House.

The entire testimony reminded me of Lenny Bruce’s many trials for obscenity, when Bruce’s jokes about “pissing in the sink” or the classic comedy bit, “To is a Preposition, Come is a Verb,” or simply suggesting an “unnatrual act” between the Lone Ranger and Tonto got him arrested in the early 1960s

No doubt, if used in an escort ad, Fichtner would peg such phrases as evidence of the oldest profession.

Kamala’s Cop

What Fichtner didn’t explain to the jury is that the investigation he led into Backpage at the time for his boss, then California Attorney General Kamala Harris, ended up being an unmitigated flop, at least in the traditional law enforcement sense.

Fichtner’s intense probe into scantily-clad ladies on Backpage led to the 2016 arrests of Lacey and Larkin on “conspiracy to pimp” charges, which were then trumpeted by Harris, who was running for the U.S. Senate at the time.

Harris declared Backpage to be “the world’s largest online brothel,” and had Lacey, Larkin and the site’s new owner, Carl Ferrer, displayed for the media in a jail cell in the courtroom, like something right out of Egyptian jurisprudence.

Lacey and Larkin sold the company in 2015 to Ferrer, but, hey, you can’t let little details like that get in the way of falsely arresting people for a campaign photo op.

Shortly thereafter, Harris was elected to the Senate, and a California judge soon tossed the charges against all three men, finding that state criminal charges were precluded by Section 230‘s grant of immunity to interactive computer services for content posted by users.

Harris knew all about Section 230 because in 2013 she signed a letter along with other state AGs asking Congress to change 230 to allow for state prosecutions because court rulings held that the federal statute “preempts state criminal law.”

She brought the charges anyway, the kind of stunt that could get a prosecutor disbarred. But when a state court judge booted the case, she doubled down, and just before Harris left for her new gig in DC, her office refiled the pimping charges, tacking on money laundering charges for good measure.

In Aug. 2017, another California judge dismissed the pimping counts again, but left the money laundering charges dangling.

They dangle still, though in April 2018, Ferrer pleaded guilty to money laundering counts in California and Texas as part of his overall plea deal with the feds, wherein he pleaded guilty to one count of conspiracy in federal court.

Cambria Flogs Fichtner

While on direct examination by Kozinets, Fichtner explained how he created a fake ad on Backpage’s escort section in 2015 and a fake ad for an ugly green couch on the site’s furniture section.

Shockingly, the escort ad cost more than the ad for the sofa. And the escort ad scored beaucoup calls from interested parties, while the sofa got but one. Fichtner described the escort section as sizzling with activity, while the couch market in Sacramento was slow at the time.

But on cross, Lacey’s attorney Paul Cambria asked Fichtner if he had counted up the total number of non-adult ads and compared them to the number of ads in the adult section. (Reportedly, around 69 percent of Backpage’s ads were for non-adult content.)

He hadn’t. Why not? Fichtner didn’t have an answer.

“You didn’t give us a complete picture of the whole site?” Cambria asked.

Fichtner admitted that he hadn’t. Cambria went over Fichtner’s story that the agent called Carl Ferrer after the ad ran for 10 days, and asked him to take it down because it was for prostitution. Ferrer asked how he knew this. Fichtner told Ferrer that he couldn’t tell him because it was part of an undercover operation. Ferrer explained that there was an email to report suspect ads, but that he would take care of it.

When Fichtner got off the phone, the ad was gone. He tried reposting it, but Backpage blocked him from doing so.

Cambria got Fichtner to admit that a colleague of his had reported another fake ad to the National Center for Missing and Exploited Children (NCMEC), a national clearinghouse for these reports, via a link offered on Backpage. That ad was removed in less than 24 hours.

Amusingly, Cambria asked Fichtner why he posted an ad for a green couch. “Who wants a green couch?” he asked. “Why not black?” Fichtner dodged the question. Truly, most people would either dump the couch or get Goodwill to haul it off.

Cambria went through the admonitions on Backpage, that minors were not allowed, any suspected abuse of minors would be reported to NCMEC and any illegality could be removed from the site without warning or refund.

Cambria hammered away. “Have you ever arrested someone based solely upon an ad?” he asked.

Fichtner: “No.”

Cambria: “Of all these ads we saw today during your testimony, did you try to arrest anyone just on the ad?”

Fichtner: “No.”

Cambria got Fichtner to concede that stripper ads, massage ads and ads for dominatrixes were not unlawful in California.

Fichtner said such ads were not illegal unless sex was exchanged for money.

Bingo.

Cambria concluded his cross, turning the witness over to Larkin’s attorney Thomas Bienert, whose cross-examination will begin this morning, Sept. 13.

Fichtner’s testimony is already in tatters. I suppose Bienert will mop the tiles with him.

Piccillo’s One-Two Punch

I asked filmmaker and former sex worker Juliana Piccillo, co-founder of the Tucson chapter of the Sex Workers Outreach Project (SWOP), about her thoughts on Fichtner’s testimony, which she listened to via a court call-in line.

Piccillo noted that none of the ads Fichtner discussed were illegal. As far as photos of women touching themselves or bathing, nothing illicit about that. An ad featuring a woman holding a dildo? Duh, legal.

Someone could even pay to watch a “two girl show” and it would not be selling sex for money.

“[Law enforcement has] people making big salaries, sitting at their computers, looking at ads of people just trying to survive,” she said. “They have grown adult men, perusing their photos and their videos, reading text that does not indicate anything illegal.”

She added: “They’re paid full-time for years to do that, and yet, they’re not able to bring successful cases.”

Ideally, the best cops want to focus on stopping people from hurting each other, which is what Backpage helped law enforcement to do.

As Lenny Bruce once told an audience about the po-po:

“They’re only doing their job. It’s your fault I’m being busted. Until you change the law, they have to do what the law requires them to do. It’s up to you to change the law.”

With Backpage kaput, women and minors are in more danger. The feds may not care. But it’s up to us to make them care. And to push for the decriminalization of sex work.

Please also see:
Lacey/Larkin Defense Rebuts Testimony of Key Federal Witnesses on Cross-Examination
and
Lacey/Larkin Judge Kills Mistrial Motion as Defense Pummels Prosecutors with First Amendment (w/Update)