Defense attorneys in the Lacey/Larkin case faced a high bar during Friday’s oral arguments in Phoenix’s federal court on their motion for dismissal for double jeopardy, filed in the wake of a mistrial declared on Sep. 14 by Judge Susan Brnovich, the previous jurist in the case.

Though the Fifth Amendmendment’s double jeopardy clause prevents individuals from being tried twice for the same crime, a mistrial normally does not preclude a retrial. In the 1982 decision Oregon v. Kennedy, the U.S. Supreme Court outlined one exception, when “the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial.”

This is precisely the argument made by attorneys for veteran newspapermen Michael Lacey and Jim Larkin, former owners of the classified listings site Backpage.com.

The defense contends that prosecutors forced the defense into calling for a mistrial by repeatedly accusing Lacey, Larkin and their co-defendants of involvement in heinous crimes that they are not charged with and have no involvement in: specifically, sex trafficking and child sex trafficking.

In fact, Lacey, Larkin, et al. are accused of facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act, along with related money laundering and conspiracy offenses. Notably, prostitution is a crime that takes place between consenting adults — one most Americans believe should be decriminalized. By contrast, sex trafficking involves minors or adults forced into the sex trade.

Judge Brnovich, who recently recused herself from the case, ruled that she gave prosecutors “leeway” in the beginning of the trial, but, “in the opening and with every witness thereafter, the government . . . abused that leeway.” She went through a list of examples where prosecutors strayed over the line into prejudicing the jury, stating that she didn’t believe any of these were “intentional misconduct.”

It was to that phrase the new jurist on the case, U.S. District Court Judge Diane Humetewa, directed defense attorneys in an order issued on the eve of Friday’s oral argument.

Humetewa wrote that “the Defendants are to specifically inform the Court why, in declaring the mistrial, the prior ruling of the Court finding ‘I don’t see any of these as intentional misconduct’ . . . forecloses their arguments in . . . their Motion.”

The Defense Attacks

Larkin’s attorney Thomas Bienert started off for the defense Friday morning by arguing that “an objective reading of the facts establishes that the government did intend to goad a mistrial.”

The “big ticket tension” of the case, he said, was the government’s position that the advertising on Backpage for massage, dating, escorts, etc., was obviously for prostitution and that the defendants were generally aware of this.

Brnovich ruled that the prosecution must tie the charges to “these specific defendants,” Bienert said. Regardless, “beginning with the opening bell,” the government was “repeatedly talking about child sex trafficking, victimization,” Bienert said, but “never tied to any defendant.”

Despite Brnovich’s admonitions, the prosecution doubled down on its false accusations, especially after one of the government’s key witnesses, California cop Brian Fichtner, undercut the prosecution’s case by admitting that the ads on Backpage were lawful and by themselves could not serve as probable cause for a prostitution arrest.

Asked by Humetewa about Brnovich’s statement concerning a lack of “intentional misconduct,” Beinert replied that on Sep. 14, Brnovich did not addresss the issue of double jeopardy, only the mistrial motion.  Indeed, the defense would not file the motion to dismiss for double jeopardy for another month.

Instead, Bienert explained, Brnovich’s comment referred to “individual prosecutors’ actions in the case.” Because if there was a finding of individual misconduct, according to the DOJ’s own handbook, there would have to be a referral to the Justice Department’s Office of Professional Responsibility for investigation and possible discipline.

Bienert noted the prosecution’s harping on the number of days a witness said she was trafficked via Backpage, a fact referenced by Brnovich in her mistrial order. He cited the government’s questioning of anti-porn zealot Dr. Sharon Cooper on the topic of child sex trafficking, which “had nothing to do with these defendants.”

Lacey’s attorney Paul Cambia then took the podium, pointing out that the prosecutors had made no denials of the defense’s goading accusations.

Cambria argued that the First Amendment presumes that all speech is protected unless it’s illegal on its face. And Fichtner made clear that Backpage’s adult ads “were not illegal on their face.” Knowing the jig was up, the prosecution continued down a prejudicial path with talk of child sex trafficking.

“They knew what our reaction would be,” Cambria said. “They knew we would move for a mistrial.”

Pattern of Misconduct

Humetewa asked the defense about the other matters raised by its motion to dismiss, specifically a request that she use her “supervisory authority” to dismiss the case because of other violations by the prosecution, like its invasion of attorney-client privilege in questioning ex-Backpage CEO and owner Carl Ferrer, who copped a sweet plea deal with the feds.

There was also the feds’ continued refusal to turn over exculpatory materials from a 2012 U.S. Department of Justice investigation, which concluded there was no evidence of criminality on Backpage’s part.

Gary Lincenberg, an attorney for one of Lacey and Larkin’s co-defendants, argued Humetewa should examine the “overall history” and ask if the prosecution’s misconduct leading to a mistrial was part of a pattern.

His colleague Whitney Bernstein, an attorney for Larkin, addressed the issue of the 2012 investigation, which produced two internal DOJ memos that argued against prosecuting Backpage. Those memos were ruled attorney “work product” by a previous judge.

But, said Bernstein, the  2012 investigation “overlapped” with the time period cited by the prosecution in its opening statement in the trial. As a result, the “facts and evidence underlying that investigation” were so-called Brady material and must be turned over to the defense.

Bruce Feder, another attorney for a Lacey/Larkin co-defendant, called for an evidentiary hearing, so prosecutors and witnesses could be questioned under oath.

Humetewa listened closely and took notes throughout the defense’s arguments. Her questions made it clear that she had been reading prior orders in the case, which stretches back to the initial indictments of Lacey and Larkin in late March 2018.

In response, Assistant U.S. Attorney Peter Kozinets hung the government’s proverbial hat on Brnovich’s statement regarding a lack of “intentional misconduct,” which he said was “fatal” to the defense’s claims.

Humetewa asked about the prosecution’s questioning of one witness about the “105 days” she was trafficked. “How is that not intentional?” she asked.

Kozinets said there had been “no objection to the reference to the 105 days.”

Humetewa asked how the government prepared that witness in response to Brnovich’s instructions to stay away from “a day in the life of” a prostitute?

Lead prosecutor Kevin Rapp said the woman, who stated under oath that she did not know any of the defendants, was advised not to talk about being raped, not to discuss being beaten up by her pimp.

How was Cooper prepped, the judge wondered?

DC-based government attorney Reggie Jones said she was “advised to stay away from victimization.” Though, as anyone who heard or read her testimony knows, Cooper did not adhere to that instruction.

Humetewa also asked about the possible overlap between the 2012 DOJ investigation and the investigation that led to the 2018 indictments. Kozinets hedged, and Humetewa said that “someone on your team has to know if there was any overlap.”

Jones piped up, averring that the 2012 investigation was “totally separate from the case at hand,” telling her that “the government decides what is Brady [material] and what is not.”

Kozinets went on to tell Humetewa that there was no reason for an evidentiary hearing, that whenever “witnesses mentioned children” prosecutors “steered them away from it.”

Regarding the issue of attorney-client privilege, AUSA Andrew Stone told Humetewa there had been no invasion of the privilege and the matter had already been litigated, with Brnovich ruling against the defense.

On rebuttal, Bienert pounced, advising Humetewa that she had just been “misled” by the prosecution. He pointed to the transcript of the government’s questioning of the witness who said she’d been trafficked for 105 days. At one point, the woman said that she was “raped for money,” after which prosecutor Rapp asked her how many times.

Contrary to Kozinets’ claim, the defense objected. Brnovich sustained.

As for Jones’ claims regarding Cooper, Bienert quoted from Brnovich’s mistrial ruling, where Brnovich said that after “the government agreed to minimize the focus on child sex trafficking,” prosecutor Jones “then proceeded to question Dr. Cooper solely on child sex trafficking.”

Of the prosecutors, Bienert told Humetewa, “They’re not being honest with you right here in this courtroom.”

He reemphasized that the prosecution’s “intent to goad a mistrial” had been objectively met.

Before Humetewa took the matter under advisement, Lincenberg asked Humetewa what she wanted to discuss at the next scheduled pre-trial hearing on Dec. 13.

Humetewa joked that she didn’t know yet, as she was still going through the court record, trying to determine what was outstanding still.

The judge then adjourned for the day.

For more on this topic, please see:
Lacey/Larkin Defense: Government ‘Goaded’ Mistrial as Part of Pattern of Misconduct
and
Defense Attorneys Move to Dismiss Lacey/Larkin Case for Double Jeopardy