Prosecutors double-down on unhinged character assassination in the Lacey/Larkin case, urging the trial judge to admit evidence of homicides, in spite of zero links to the defendants.
Federal prosecutors in the Lacey/Larkin case seem eager to prove the infamous boast once uttered in Errol Morris’ classic, 1988 documentary on the perversion of justice, The Thin Blue Line, that the true test of a prosecutor is being able to convict an innocent man.
To that end, government attorneys are sliming veteran newspapermen Michael Lacey and Jim Larkin by falsely implying their involvement in heinous crimes that they are not charged with. This, because they once owned the now-defunct classified ad colossus, Backpage.com.
A recent motion authored by the case’s lead prosecutor Kevin Rapp asks federal Judge Susan Brnovich to admit evidence of ten “murders implicating Backpage” to Lacey and Larkin’s trial on 100 counts of conspiracy, money laundering and facilitating prostitution under the U.S. Travel Act, which is currently scheduled to begin August 17.
Talk about jumping the shark. Lacey and Larkin have no more to do with the ten homicides described in Rapp’s document than the Dalai Lama or Pope Francis. And, significantly, Lacey and Larkin are not charged with murder. The pair have no criminal history. Their lives have been spent as successful businessmen and journalists.
In fact, the supposed connections between Backpage and these killings are indirect, opaque and utterly absurd.
For example, the motion states that in December 2011 four women who advertised on Backpage were killed by a man in Detroit, though their ads appeared on numerous other websites. The other six, unrelated murders were committed by various individuals across the country, in places like Hammond, Indiana and Dallas, Texas.
Prosecutors allege that in each case a victim, identified by her initials in the pleading, was the subject of a listing on Backpage. One tragedy from 2015 involved a woman in New Orleans who jumped “from her assailant’s vehicle and was struck by oncoming traffic.”
The link? “She posted on Backpage shortly before her murder.”
Rube Goldberg, Prosecutor
Lacey and Larkin didn’t know these unfortunates and obviously had nothing to do with their killings. How, then, does Assistant U.S. Attorney Rapp rationalize his request to admit the lurid details of gruesome slayings that are evidently meant to inflame the jury?
With reasoning as straightforward as a Rube Goldberg contraption.
Rapp insinuates that Backpage bears some distant responsibility for the murders because execs learned about the slayings through Google alerts for news about the company. Backpage execs also tracked news stories about the site and employed public relations companies to help deal with negative press.
In other words, such ordinary business activities — engaged in by most U.S. companies — are proof, in Rapp’s mind, of nefarious intent.
‘The evidence is entirely irrelevant to this case and is unduly prejudicial, and should be precluded . . . The government’s tortured arguments to the contrary are unmoored from any authority and are entirely infirm.’ — from the defendants’ response to AUSA Rapp’s “murder” motion
Ironically, Rapp regards it as sinister that Backpage execs cooperated extensively with law enforcement, promptly responded to warrants and subpoenas, and regularly testified in court against violent pimps and traffickers. Rapp even notes Backpage’s cooperation with investigators in some of the same homicides that he lists in his murder motion.
— Elizabeth Nolan Brown (@ENBrown) April 12, 2018
“This evidence is highly probative in supporting the government’s theory that defendants knew about the website’s true nature and helps demonstrate how the company’s business practices facilitated the criminal activities of the prostitutes and pimps who used the website,” Rapp writes.
Rapp, however, fails to mention that the website’s “business practices” assisted law enforcement in rescuing victims and convicting violent criminals. Backpage also routinely reported ads suspected of involving minors to the National Center for Missing and Exploited Children (NCMEC), the quasi-governmental clearinghouse for such information.
In 2011, the FBI even awarded Backpage a certificate, signed by then-FBI director Robert Mueller, recognizing the site’s “outstanding cooperation and assistance in an investigation of great importance.” It’s just one of many plaudits and letters of thanks that Backpage received from law enforcement officials over the years.
The defense’s response, written by Lacey’s attorney Paul Cambria, argues that evidence of these murders is “entirely irrelevant to this case and unduly prejudicial.” Nor is it “relevant to a charged crime or the defendants’ conduct.” And so it should be precluded under the federal rules of evidence.
Cambria goes on to reject the government’s “convoluted theory” that the defendants’ “after-the-fact awareness of these ten murders” means they knew “all other hundreds of millions of ads posted on Backpage involving all other people were `exclusively for prostitution.'”
The Buffalo, New York-based attorney writes that “at best, it shows that defendants learned after the fact that a handful of ads out of millions were related to prostitution.”
He also points out that “a small amount of criminal activity (even if serious criminal activity)” on a website does not establish anything about the “true nature” of that site. In a footnote, he references a 2016 Washington Post story by reporter Caitlin Dewey that, as of the date of the piece, “101 murders” had been linked to Craigslist.
(The counselor doesn’t mention it in his response, but Craigslist had its own adult services section, which it spiked in 2010 as a result of pressure from politicians and activists. Though some adult listings reportedly migrated to other parts of the site.)
Additionally, Cambria offers a link to a recent New York Times report, stating that in 2018, “Facebook was responsible for more than ninety percent of the 45 million reports of online photos and videos of children being sexually abused.”
But that ain’t all. Facebook has been misused for a wide array of criminal activity, everything from illicit drug sales, the illegal gun trade, prostitution, the live-streaming of murders and rapes, and human rights abuses.
Twitter has had similar problems, such as extremist organizations using the site to recruit and spread content related to terrorism. To be fair, social networking platforms expend a great deal of money, time and resources in an attempt to keep illegal content off their sites — just as Backpage did before it was seized and taken offline by the feds on April 6, 2018.
‘I think that’s the intended purpose of the government’s motion, to muddy the waters and link the defendants or try to link the defendants to really horrific conduct.’ — Richard Gaxiola, veteran Phoenix defense attorney
And yet, Mark Zuckerberg, Craig Newmark and Jack Dorsey remain unmolested by federal prosecutors, who seek to hold Backpage and its former owners to a wildly different standard.
Veteran Phoenix defense attorney Richard Gaxiola reviewed the government’s motion and the defendants’ response for Front Page Confidential. Gaxiola agrees with Cambria that the government’s attempt to insert these unrelated murders into the Lacey and Larkin case is “extremely prejudicial” to the defendants.
The danger, he explains, is that the jury could be swayed by emotion to convict based on misleading information unrelated to the charges.
“And I think that’s the intended purpose of the government’s motion, to muddy the waters and link the defendants or try to link the defendants to really horrific conduct,” Gaxiola says.
He adds that there is “not one shred of evidence” connecting the defendants to the murders themselves, “or any knowledge of those murders aside from the fact that the murders became promulgated in the media, which made it available for mass consumption.”
Anatomy of an Injustice
The murder motion’s “quantum leap of logic,” as Cambria refers to it, follows the twisted reasoning of the indictment itself, which maintains that Backpage’s former owners should be held criminally responsible for illicit acts allegedly connected to adult ads posted by users of the site.
Prosecutors cite 50 specific ads in the indictment out of the millions of classifieds of all kinds that once ran on the site. Still, government attorneys cannot show that Lacey and Larkin knew anything of these ads, and they certainly cannot connect the defendants to any subsequent acts of prostitution.
Two-thirds of the cited ads were placed after Lacey and Larkin sold their interests in the site in 2015. During their ownership of the site, both federal and state courts consistently ruled that the adult listings are protected by the First Amendment and Section 230 of the Communications Decency Act, the federal law that generally holds interactive websites harmless for third-party content posted by others.
But why let such inconvenient facts stand in the way of the government’s attempt to railroad these 70-somethings and put them in prison for the rest of their lives?
Gaxiola believes that the prosecution’s latest motion signals weakness. That is, the government cannot prove its case, so it must resort to painting the defendants in the most unfavorable light and accusing them of crimes they are not charged with.
“The attempt by the government to do this may demonstrate its own lack of strength in its case and its ability to prosecute it before a jury,” Gaxiola says.
“Because if you have the evidence, you take the admissible evidence to the jury and let them decide,” he adds.
“That’s the basis of our jury system, and the foundation of our criminal justice system.”