Federal prosecutors elicit inflammatory testimony in the Backpage trial about heinous crimes the defendants are not charged with; defense moves for mistrial.
Update, 10/12/23, 12:03 p.m.: Judge Humetewa sided with the government this morning, denying the defense’s fifth motion to dismiss. She said, “On balance, there is no necessity to declare a mistrial.” For more, follow me on Twitter/X, @stephenlemons, #Backpage trial.
Groundhog Day, anyone?
Punxsutawney Phil may not be a federal prosecutor, but federal prosecutors in the Backpage trial have something in common with the furry varmit. Specifically, they have a bad case of déjà vu all over again, and it keeps forcing the defense to call for a mistrial.
Defense attorneys did so again, for the fifth time, on Wednesday in Phoenix’s federal court following the direct examination of Isaac Luria by Assistant U.S. Attorney Austin Berry.
Luria was formerly associated with Manhattan’s Auburn Theological Seminary, which led a vicious media campaign against Backpage in 2011, spearheaded by a social justice initiative at Auburn, christened, “Groundswell.”
The campaign included a full-page ad in The New York Times, a petition on Change.org, letters to Backpage’s advertisers, and even a rally outside the New York offices of Backpage’s corporate parent, Village Voice Media (VVM), where, Luria explained, demonstrators “stacked kids shoes to represent children sold for sex.”
Luria’s lurid testimony was rife with references to children, sex trafficking, child sex trafficking, and the “prostitution of children,” which is, de facto, child sex trafficking. But the Backpage defendants are not charged with anything to do with sex trafficking or child sex trafficking, nor could they ever be.
In reality, the underlying allegations against Lacey and four others regard the “facilitation” of misdemeanor state prostitution offenses in violation of the U.S. Travel Act.
By law, prostitution involves illicit sex for money between consenting adults. Sex trafficking involves adults who were forced, tricked, or coerced into prostitution. The sale of minors for sex is always considered sex trafficking.
But a prior decision by a former judge on the case, Susan Brnovich, muddied the waters. She ruled that “sex trafficking” and “child sex trafficking” are “subsets” of prostitution, — which is a little like saying homicide is a subset of misdemeanor assault.
Nevertheless, it’s given prosecutors a path to slimy misdirection in their bid to poison the minds of the jury with references to children and child sex trafficking. The same sort of prosecutorial misconduct led to a mistrial in 2021.
Following Berry’s questioning of Luria, out of the presence of the jury, the defense again moved for a mistrial, renewing the call at the end of the day. Judge Diane Humetewa, who replaced Brnovich after the latter recused herself, said she would rule on the mistrial motion this morning.
War on Backpage
Luria told Berry that the Groundswell campaign’s goal was to convince Backpage to do away with its adult category, in the same way Craigslist.org bowed to pressure in 2010, ridding itself of its “adult services” section — though many escort and massage ads simply migrated to Craigslist’s dating section.
Luria said religious leaders were “outraged about sex trafficking and the prostitution of children.” So, Auburn Seminary’s President, Katherine Henderson, hired Luria to run Groundswell.
The NYT ad cost $75K. It consisted of an open letter to Backpage signed by 36 “faith leaders,” concerning the “selling of children.”
That’s a ludicrous accusation because the only thing Backpage sold was ad space. Anything involving children, sex trafficking, or illegality was verboten on the site, and Backpage worked with law enforcement agencies across the country to save endangered women and children, eventually earning its founder Carl Ferrer a citation signed by then-FBI Director Robert Mueller.
Fancy seeing you here!
Not so long ago, Robert Mueller was FBI Director and praising #Backpage for its help with sex trafficking stings. (Tucked inside a motion from a recently charged Backpage founder Michael Lacey.) pic.twitter.com/orWBigpMAJ
— Megan Cassidy (@meganrcassidy) April 10, 2018
Luria described a meeting in late 2011 in New York City between five of the letter’s signatories and executives of VVM, the national chain of 17 alternative newsweeklies co-owned by Lacey and his longtime business partner, the late Jim Larkin.
Lacey and Larkin were at the meeting as were Henderson, a smattering of prelates, attorneys for both sides, and Luria, who’d set it up. According to Luria, it began with a “prayer,” and soon turned contentious.
Luria claimed that one religious leader laid into Lacey and Larkin, saying that he and his colleagues would never be comfortable with a website that “allowed child sex trafficking to happen.”
Lacey interrupted, asking, “Consenting adults can do what they want, why would you want to stop them?” The cleric retorted that he was talking about “the prostitution of children.”
After Berry passed the witness to the defense, the jury was dismissed for a 20-minute break. Defense attorney David Eisenberg moved for a mistrial based on the references to children, the shoes, and the boycotts.
Berry shot back that the references were to children instead of “child sex trafficking.” He accused the defense of opening the door to these references by previously introducing into evidence 101 letters and emails from law enforcement praising Backpage for its help in tracking down child predators.
Lacey’s attorney Paul Cambria responded to Berry’s accusation, saying that in all those 101 exhibits there was “no accusation that Backpage was committing a crime of trafficking,” which he called a “vast difference.”
There seemed to be a little confusion just before the jury came back after an afternoon break as to whether a mistrial motion had been made.
But at day’s end, defense counsel Gary Lincenberg renewed the call for a mistrial. The other defense attorneys joined, arguing that the “cumulative” effect of all these mentions of children and trafficking had tainted the jury.
Cambria’s cross-examination of Luria was a delight to watch. I wish videotaping was allowed in the court because that footage would most certainly go viral.
The wily, Buffalo-based attorney, who once repped porn mogul Larry Flynt, effortlessly punctured all of Luria’s pompous assumptions, leaving Luria nearly speechless at moments.
The following is a rough recounting from my notes of the best of this give-and-take. It was one of the most satisfying moments of the trial so far. Some of those on the jury appeared to be smiling.
Cambria: So, do religious leaders ask for money?
Luria: To help people.
Cambria: C’mon they ask for money all the time.
Luria: Technically, yes.
Cambria then asks about Luria’s group soliciting donations.
Luria: The comparison you’re making is wrong.
Cambria: What about the issue of Catholic priests [molesting] young people? Did that get an ad in The New York Times?
Luria: I think there’s a difference.
Cambria: Of course you do . . . You know the old saying about casting the first stone?
Luria: (apparently stunned by the Biblical reference) Shocking.
Cambria asked if Luria knew that one of the church attendees at the meeting with Backpage, an Episcopal bishop, hired a former Catholic priest accused of molestation?
The government objected, and Humetewa sustained. Cambria tried rephrasing his question, but Humetewa would not allow it.
Cambria asked about a list of VVM advertisers, whom the Auburn people contacted as part of their boycott.
Luria said he’d given a copy of the list to Backpage’s attorney. But the list was incomplete.
Cambria: Did you say [it was because] your mother-in-law was in an accident and hit a deer?
Luria: Yes, I made a mistake.
Cambria: Did you know Facebook reported more than 20 million child sexual abuse images on its platform?
Luria: I’m familiar with Facebook’s reporting, but not the number.
Cambria: Did you ever meet with Facebook on whether portions of Facebook should be shut down?
Luria: No, we focused on Backpage.
NCMEC advised Groundswell on its anti-Backpage campaign, you see.
And those, my friends, are just the highlights.
Luria was later dismissed, his honey-baked ham roasted to a delicious crisp.
Trial begins again Thursday at 8:45 a.m. in Phoenix’s federal courthouse. For regular updates during breaks in the trial, follow me on Twitter/X , @stephenlemons.