Federal prosecutors have failed, for now, in their most repugnant smear tactic to date in the case involving veteran journalists and onetime Backpage.com owners, Michael Lacey and Jim Larkin.

In a ruling issued May 7 from Phoenix’s federal court, Judge Susan Brnovich denied a government bid to prejudice the jury at trial by introducing gruesome details of homicides that Lacey, Larkin and their four co-defendants have absolutely nothing to do with.

But in a separate ruling issued the same day, Brnovich explained that she will permit prosecutors to try to introduce material involving “sex trafficking” and “child sex trafficking,” though the defendants are not charged with these heinous crimes.

To be clear, Lacey and Larkin are award-winning newspapermen, businessmen and philanthropists, the founders of a chain of alternative newspapers once known as Village Voice Media. They are not accused of physically harming anyone. Rather, they once owned a classified listings site, where users were allowed to post lawful advertisements for a plethora of goods and services, as well as listings for dating and personals.

Regardless, the government has — wrongly — charged Lacey and Larkin with 100 counts of conspiracy, money laundering and the facilitation of prostitution under the U.S. Travel Act, a Kennedy-era statute that makes it unlawful to use “interstate or foreign commerce” with the intent to “promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity.”

Lacey and Larkin pleaded not guilty. Their trial is scheduled to begin Aug. 23.

The government alleges that Lacey and Larkin’s culpability derives from their former ownership of Backpage, established as a competitor to Craigslist.org, where users posted classified ads for things like yard sales, apartment rentals, antiques, and legal adult services, such as escorts, striptease, massage and so forth. (Advertising illicit sex for money was verboten on Backpage, and the site was moderated to remove such content.)

These allegations rest on an absurd theory of vicarious, third-party liability, in an attempt to hold Lacey and Larkin responsible for the alleged illegal acts of people they don’t know, have never met and have zero connection to.

The problem for the government? The illegal acts in question involve consensual, adult prostitution, which the majority of U.S. voters believe should be legalized and which a growing number of district attorneys around the country have stopped prosecuting.

So last May, Assistant U.S. Attorney Kevin Rapp did his bouffant hairdo-best with a motion asking to shoehorn in gore-tinged accounts of ten murders supposedly linked to classified ads for adult services on Backpage.com, though similar ads featuring these victims had appeared on other sites.

The grotesqueness of this gambit was self-evident. And Brnovich shot it down, for now.

She wrote:

“If evidence of the details of the murders were introduced, it is likely to inflame the passions of the jurors against the Defendants or create confusion that Defendants are responsible for the murders . . . Thus, clearly facts and details regarding the murders themselves should not be admitted.”

Still, Rapp may get another bite at the apple. While Brnovich denied the government’s motion “for a blanket order approving evidence of third-party murders,” she held that some evidence regarding the murders, “if relevant and properly sanitized,” might be admissible.

In her second May 7 ruling, the judge denied, in part, a defense motion to preclude allegations of “sex trafficking” or “child sex trafficking” related to Backpage.

She wrote that she agreed with the government’s contention that the offenses “are, by definition, both forms of prostitution” and “a subset of the crime.”

But Brnovich sided with the defense on a different issue, writing that she will “not allow the government to introduce lengthy testimony from witnesses who were engaged in prostitution about their lives, lifestyles or other details of their time working as prostitutes.”

Such testimony is only relevant, she wrote, “as it relates to their use of Backpage.com.”

By Any Means Necessary

Asked to comment on the rulings, Tucson defense attorney and former Arizona State Bar President Michael Piccarreta said that the prosecution’s attempt to introduce inflammatory and prejudicial information indicated a “win-at-all-costs” mentality that prosecutors have demonstrated from day one in the case.

Indeed, the government has engaged in a number of vicious tactics in its crusade to put Lacey and Larkin’s heads on a pike.

Prosecutors have suppressed exculpatory evidence that Backpage was obeying the law and cooperating with law enforcement. FBI agents effectively destroyed the most important piece of evidence in the case, the website itself, when it seized Backpage on April 6, 2018. Also, defense attorneys have accused prosecutors of misleading the grand jury and violating attorney-client privilege, big legal no-nos.

Just as alarming, the government seized all of Lacey and Larkin’s assets, including income from their newspapers. The feds also seized money set aside to compensate defense attorneys on the case. Piccarreta was one of them and was forced to withdraw as counsel for Lacey and Larkin’s co-defendant, Andrew Padilla.

When it comes to prosecutors’ attempts to smear Lacey and Larkin for crimes such as murder, sex trafficking and child sex trafficking, all involving felony-level violence, Piccarreta says it shows the hollowness of the prosecution’s case.

“If they make the case about prostitution and just prostitution . . . they will have a very difficult time to get a conviction,” he explains.

As a result, prosecutors want to introduce “prejudicial collateral matters” about which Lacey, Larkin, et al. “had no involvement whatsoever.” But Piccarreta says that, in doing so, they risk a reversal on appeal if the defendants are found guilty.

“But I don’t think [the prosecutors] care about that,” Piccarreta says. “I think they just want the headline, ‘Conviction,’ and then later, if it gets reversed, that’s on page 12 in the corner.”

Prostitution vs. Sex Trafficking

What about the government’s contention that sex trafficking and child sex trafficking are just offshoots of prostitution? Piccarreta concedes that each involve sex for money, but that “the law views them through entirely different lenses.”

There are no federal statutes outlawing consensual, adult prostitution, per se. Normally, it’s treated as a nuisance, and prosecuted by municipalities as a misdemeanor.

“Sex trafficking,” on the other hand, is a federal crime, targeting anyone who causes minors to be involved in the sex trade, or uses “force, fraud or coercion” to make an adult engage in sex work. Punishment is anywhere from 10 years to life.

In the defense motion asking the judge to keep out sex trafficking references, Lacey and Larkin’s counsel pointed to the extreme stigma associated with child sex trafficking, quoting a former prosecutor as saying that members of a jury would “rather be accused of murder” than the sexual exploitation of a child.

Which, as Piccarreta observes, is why the prosecution wants to slime Lacey and Larkin as “child sex traffickers” before the jury, “though anyone who’s studied the case knows that’s total nonsense.”

Tucson-based filmmaker and former sex worker Juliana Piccillo was incensed by the prosecution’s conflation of consensual sex work and sex trafficking. It’s a fallacy she and other sex worker-rights advocates have been fighting for decades.

“If sex trafficking and [child sex trafficking] are forms of prostitution and sex work, then slavery is a form of farming,” she says. “Or pedophilia is a form of parenting. The logic is so ridiculous.”

Piccillo, director of the acclaimed documentary Whores on Film and an organizer with the Tucson chapter of the Sex Workers Organizing Project, contends that politicians and anti-sex work groups conflate prostitution with sex trafficking as a tactic to drive sex work underground.

“There’s no other argument, that’s not overtly religious, for why you should not decriminalize consensual adult sex work,” she notes.

She also believes prosecutors are “using this bullshit, hysterical suggestion”  regarding Lacey and Larkin because their case is weak.

“They can’t rely on the charges that they’ve brought?” she asks. “They brought a hundred charges. Like that’s not enough?”

Walking Tall

But even those charges raise troubling questions about the government’s actions.

If Lacey and Larkin are to be held criminally responsible for the illicit acts of people who posted ads on Backpage, why shouldn’t Jack Dorsey be in the dock for domestic terrorists that operate on Twitter or the sex workers who seek customers on the site? Why not prosecute Mark Zuckerberg for Facebook’s child porn problem? Or Craig Newmark for the more than 100 murders associated with ads on Craigslist, as well as all of its past adult listings?

Piccillo argues that the feds left Newmark alone after he shuttered Craigslist’s adult section in 2010, though some of those ads reportedly migrated to the site’s personals section. Newmark finally shut down personals in 2018, part of the wave of censorship that followed the passage that year of FOSTA/SESTA.

So why are the feds selectively prosecuting Lacey and Larkin for a site they sold in 2015?  Piccillo has reached the same conclusion many others have: When politicians and prosecutors demanded Lacey and Larkin spike Backpage’s adult listings, the longtime free speech warriors refused to kowtow.

“The fricking real crime they committed was they refused to play this game,” she says. “They said, no, we’re protected under the Constitution. We’re not doing it so you can look good for your political ambitions.”

She adds this thought:

“What’s the point of having a Constitution, if we can’t be sheltered under it, if the federal government can just come up with some kind of workaround? What’s the point?”

For more on this subject, please see:
Prosecutors in Lacey/Larkin Case Jump the Shark in Their Most Obnoxious Pre-Trial Motion To Date
and
Prosecutors Poisoned Grand Jury Process in Lacey/Larkin Case