Attorneys for veteran newspapermen Michael Lacey and Jim Larkin argue in a new motion that the government willfully ignored federal Judge Susan Brnovich’s instructions during the pair’s recent trial in Phoenix. Instead, prosecutors doubled down on false accusations of sex trafficking and child sex trafficking, goading the defense into calling for a mistrial, which Brnovich granted Sep. 14.

Filed by Larkin’s attorney Whitney Bernstein and joined by the entire defense team, the motion calls on Brnovich to dismiss the case with prejudice. It contends that in provoking the mistrial, the prosecution violated the double jeopardy clause of the Fifth Amendment to the U.S. Constitution, which forbids the government from trying a person twice for the same offense.

Bernstein, et al., argue that the feds’ mistrial shenanigans were part of “a pattern of repeated and brazen government misconduct,” committed by “seasoned prosecutors,” who collectively boast “decades of experience.”

And because the government has “seized virtually all of the defendants’ assets” — including money set aside for defense costs — the mistrial leaves the defendants in an “untenable” financial position as they head into a new trial, scheduled for February 9.

Prosecutors, on the other hand, have all the might and treasure of the federal government at their disposal. A new trial would favor the government, according to Bernstein’s motion, allowing it “a retooling of its faltering case,” thereby “increasing the government’s chances of obtaining a conviction.”

Please See: Reason Magazine Blasts ‘Collapsing Federal Prostitution Case Against Backpage.com’ in New Video

While double jeopardy does not necessarily preclude a do-over in the case of a mistrial, Bernstein notes that there is “a well-established exception” to this rule: i.e., when the mistrial is the result of deliberate government misconduct.

“The Supreme Court has made clear that, if the prosecution engages in bad-faith tactics to bait the defendant into moving for a mistrial, the double jeopardy clause bars the government from retrial,” she writes.

What’s the evidence of bad faith? The prosecution’s stubborn refusal to heed repeated orders from Judge Brnovich, which sought to circumscribe the government’s discussion of sex trafficking and child sex trafficking.

Pitch and Switch

Lacey, Larkin and their four co-defendants are charged with up to 100 counts of conspiracy, money laundering, and facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act via adult ads posted by users to Backpage’s website.

It’s worth remembering that prostitution is a “consensual crime” that occurs between adults and is normally prosecuted as a misdemeanor. Sex trafficking — a federal felony the defendants are not charged with — is a horrific crime that involves either children, or adults forced into commercial sex.

Both sides learned through the jury selection process that jurors were “much less likely to be fair and objective if the trial involved sex trafficking and child sex trafficking,” rather than prostitution, the motion explains. Thus, the prosecution knew ahead of time that accusations of sex trafficking and child sex trafficking would inflame the jury.

Aware that these issues were prejudicial, Judge Brnovich restricted the government’s use of crimes committed by third parties in pre-trial rulings, telling the prosecution that it was not allowed to show details of these crimes. Similarly, she forbade the government from dwelling on the abuse suffered by sex trafficking victims.

Brnovich further ruled that evidence related to Backpage’s “reputation” had to be “tethered” to communications with Backpage or the defendants. Testimony from former prostitutes had to be related to ads that appeared on Backpage. She also limited parameters on the testimony of expert witnesses.

But the government blew off the judge’s admonitions. In prosecutor Reggie Jones opening statement and in his and other government attorneys’ direct examination of witnesses, the prosecution harped continuously on child sex trafficking.

Jones started and finished his 100-minute opening statement with tales of trafficked minors, accusing the defendants of making tens of millions of dollars from a website that “sold children for sex.”

He eschewed discussion of the actual charges against the defendants, mentioning trafficking and child sex trafficking around 40 times during his incendiary spiel. Jones even went so far as to show the jury X-rated images that never appeared on Backpage.

The defense contends that Jones intended to provoke a mistrial at this early stage. How did she reach this conclusion? Before Jones gave his ham-handed opening, defense attorneys raised concerns about the contents of his accompanying PowerPoint presentation, to which the defense had advance access.

As a result, the judge admonished the government about its focus on sex trafficking.

Bernstein writes:

“The Court issued a warning, clarifying yet again, that the government counsel ‘aren’t prohibited from using the word trafficking,’ but ‘do need to be careful that [the government’s] whole opening is not focused on this idea that that’s all that Backpage was about.'”

“The government said it ‘understood’ . . . but then ignored those rulings and, from the outset of trial, poisoned the jury during its opening by focusing on child sex trafficking, knowing the effect explosive, inadmissible, and prejudicial evidence involving child sex trafficking would have on the jury.”

Predictably, after Jones’ jeremiad, the defense immediately moved for a mistrial.  Though Brnovich denied that initial call, she would later say Jones’ opening came “close to a mistrial” in itself.

Witnesses for the Prosecution

The government continued this reckless strategy, eliciting testimony from witnesses that prosecutors knew would draw more calls for mistrial from the defense. The damage snowballed to the point Judge Brnovich was forced to bring the trial to an end.

In her Sep. 13 ruling from the bench, Brnovich explained that she had given the government “some leeway” in discussing sex trafficking, child sex trafficking and prostitution. “Yet in the opening, and with every witness thereafter, it seems, the government has abused that leeway,” she said.

Brnovich cited the government’s questioning of Sharon Cooper, a reputed sex trafficking expert and anti-porn crusader. Brnovich said that before Cooper took the stand, the government “agreed to minimize the focus on child sex trafficking” and refer to “more general sex trafficking.”

Jones then “proceeded to question Dr. Cooper solely on child sex trafficking.” Cooper also testified to “reputational evidence” about Backpage that was “untethered” to the defendants

Despite the judge’s order that the government “stay away from the day in the life of a prostitute or victim,” the government solicited answers from a witness (who was advertised on Backpage when she was underage) that “went into the abuse by her trafficker.” Many of these questions were “objected to and sustained,” said Brnovich.

The witness said she had been trafficked for 105 days. And the government emphasized this “over, and over, and over again.” The witness also discussed being raped, “which raises a whole new emotional response from people,” Brnovich observed.

In granting the mistrial motion, the judge said she didn’t believe the prosecution had engaged in “intentional misconduct,” but ” the cumulative effect of all of that is something that I can’t overlook and won’t overlook.”

The Cop and the Vulcan

The testimony of California cop Brian Fichtner may have been the most damaging part of the trial for the prosecution. Prosecutors called Fichtner to testify about an investigation he conducted into Backpage in 2015, having him comment at length on a video he made of himself perusing many of the adult ads that appeared in Backpage for the vicinity of Sacramento.

Bernstein’s motion says that the government’s goal with Fichtner was “establishing that the ads on the site were all for prostitution.” But on cross-examination by the defense, Fichtner’s testimony “fell apart.”

Fichtner “conceded the lack of crime by the defendants,” admitting that the ads themselves were legal and that he could not arrest someone for prostitution based on the ads’ ambiguous language and the sometimes racy photos, as these did not contain offers of a sex act for money.

The cop “completely undermined the government’s position” that the adult ads on Backpage were obviously for prostitution. “With its central argument crumbling, the government knew exactly how to get a do-over of its case: focus on child sex trafficking, and defendants will move for a mistrial,” Bernstiein writes.

Fortunately, the court doesn’t need Mr. Spock to do a Vulcan mind-meld on the prosecutors to figure out whether they intended to provoke the defense into moving for a mistrial.

According to Supreme Court precedent, the court must review the “objective facts and circumstances” to make that determination. A “sequence of overreaching” by the prosecution is “objective proof of the prosecution’s intent to goad the defense into a mistrial.”

Indeed, the prosecution forced the defense to seek a mistrial on three occasions within the span of an eight-day trial. The third time was the charm.

Bernstein notes:

“[E]ach day, the government presented zero evidence to establish the charged offenses. Seeing the writing on the wall, the government deliberately injected the trial with evidence of sex trafficking and child trafficking, including irrelevant, heart-rending stories of rape and abuse of teenage girls – evidence it knew would force Defendants to move for a mistrial and thereby enable the government to regroup and try again.”

Bernstein’s motion argues other reasons for dismissal as well, such as the refusal of the government to disclose exculpatory materials related to a 2012-2013 DOJ investigation of Backpage in the Western District of Washington state. This investigation produced two internal Justice Department memos that reportedly concluded there was no evidence of criminality on Backpage’s part.

These memos were blocked from the trial by a previous judge, but the defense wants the records of the underlying investigation, invoking the so-called Brady rule, which requires that potentially exculpatory evidence must be shared with the defense.

Will this new motion convince the judge to end this travesty before it starts up again in February?

The defense makes a convincing case for doing so by laying out all the “objective facts and circumstances” in its motion.

Given those facts, it’s tough to believe that the government didn’t crash its cockamamie choo-choo on purpose. To give prosecutors another crack at this case, after what they’ve pulled, denies Lacey and Larkin their right to a fair trial and makes a mockery of the justice system to boot.

And ICYMI:
Prosecutors (Again) Falsely Equate ‘Escorts’ with ‘Prostitution’ in Latest Filing in Lacey/Larkin Case
and
Lacey/Larkin Trial Reset to Feb. 9 as Feds Block Exculpatory DOJ Memos