This post repurposes recent Twitter/X reports from the #BackpageTrial in Phoenix’s Sandra Day O’Connor U.S. Courthouse. For regular updates, please follow the writer @stephenlemons.

Wednesday, Oct. 25, 2023: Mehlman-Orozco Kicks Prosecutorial Tuchis

The last defense witness in the #BackpageTrial testified this afternoon: Dr. Kim Mehlman-Orozco, an expert on sex trafficking and human sexuality and the author of Hidden in Plain Sight: America’s Slaves of the New Millennium.

Orozco, who has taught human trafficking material at the #1 ranked criminology school in the country, University of Maryland College Park, testified that you can’t tell by looking at an escort ad on Backpage.com (BP) whether or not it was an ad for prostitution. It could’ve been posted by a cop, a researcher, a grad student, a legal sex worker, a pimp, an anti-trafficking nonprofit, a church group, and on and on.

Under direct questioning by defense attorney Joy Bertrand, Mehlman-Orozco explained that her research has included viewing “commercial sex ads” on BP for things like body rubs, personals, escorts, striptease, and so on. She agreed with Bertrand that prostitution, the illegal exchange of a sex act for money between consenting adults, is a “subset” of commercial sex, of which there are many legal variations.

Mehlman-Orozco said she had reviewed “thousands, maybe tens of thousands” of BP ads, in addition to ads on other forums. She would reach out to the advertisers in order to interview them, and she learned that when it comes to commercial sex ads, what you see is often not what you get. For instance, some ads offering “erotic massage” were part of a “bait and switch” strategy in order to get the client in the door, though there would ultimately be “no sex service provided.”

In effect, commercial sex ads were unreliable; ditto reviews of escorts on The Erotic Review (TER), which could be fantasy, or an escort, or a cop, etc. The reciprocal link agreement between TER and BP? Meaningless as to determining if something illegal is being offered in the ad.

On cross, prosecutor Andy Stone tried again and again to get Mehlman-Orozco to bend. But the professor was a rock.

Stone stated that save for some parts of Nevada, “prostitution is illegal in this country.” Mehlman-Orozco disagreed, pointing out that it was effectively “decriminalized” in Manhattan, where, in 2021, Manhattan District Attorney Cy Vance announced that his office would no longer prosecute prostitution offenses.

Stone showed Mehlman-Orozco page after page of adult listings on BP as archived by the Wayback Machine, referring to them as “prostitution ads.” But Mehlman-Orozco said there was no way to determine if an act of prostitution would occur or if an actual sex worker was involved with an ad because so many non-sex workers post such ads, from law enforcement task forces to NGOs.

Stone was clearly flummoxed. Mehlman-Orozco was a superb witness for the defense to end on.

Prior to that, ex-Miami New Times editor Chuck Strouse and legendary Phoenix New Times reporter John Dougherty testified that veteran newspaperman Michael Lacey controlled the editorial side of Village Voice Media (VVM) as executive editor. There was a wall between the business side of VVM and the journalism side, they testified, and never the twain shall meet.

Lacey never talked about Backpage with them because he wasn’t involved in the operation of Backpage. Lacey defended its First Amendment right to publish, and Lacey attacked the ferkakte “sex trafficking panic,” but Lacey never really cared about the business side of the paper. He was and is all about writing, editing, and reporting, they testified.

An interesting moment occurred as prosecutor Margaret Perlmeter was cross-examining Dougherty, asking him route questions about Dougherty’s communications with the defense. Dougherty mentioned that his last communication occurred via a text message he sent to the defense team. Perlmeter asked about the subject matter of the text, and Dougherty said it expressed his amazement that the court had a “relationship with John McCain.”

It was a pin-drop moment. For those who’ve been following the case for a while, the issue of Humetewa’s ties to the late U.S. Senator John McCain was raised by the defense in 2021 as a possible cause for the judge’s recusal.

There’s been a longstanding feud between Lacey and Larkin and John and Cindy McCain over a litany of critical investigative articles about the McCains published by the Phoenix New Times. John McCain championed Humetewa’s career as she rose to be U.S. Attorney for Arizona and later a federal judge.  And Humetewa was an honorary pallbearer at McCain’s funeral.

Ultimately, Humetewa declined to recuse herself, saying that she could still be impartial in spite of the bad blood between the McCains and Lacey and Larkin, which she said she was unaware of.

After Dougherty mentioned his text message, Perlmeter moved to have it disclosed to the prosecution.

Humetewa was skeptical, telling Perlmeter that the court had to have a “thick skin” and “the court is not on trial.” The defense produced a copy of the text for the judge to read. After reading it, she concluded that it was “not relevant” to the proceedings.

Later in the afternoon, the judge polled the defendants’ attorneys, and each said their client was not going to testify. As a result, the government could begin its summation as early as Thursday afternoon, when the jury will be brought back.

The defense may begin its summation on Friday morning. Friday is a half day for the trial, so even if the defense starts Friday, it’s likely it will bleed over till Tuesday when the trial resumes. We’re close to the end of this nonsense. For more on the case, please see frontpageconfidential.com.

Tuesday, Oct. 24, 2023: Judge Limits Defense

The #BackpageTrial is on pause until 1 p.m. when the jury will be brought in to hear the start of the defense case. Immediately after she sat down, federal Judge Diane Humetewa said she would reserve for now her ruling on the defense’s Rule 29 motion to acquit, which is based on what the defense believes to be the weakness of the prosecution’s case.

The parties then debated defense motions to reconsider Humetewa’s pre-trial rulings precluding or limiting the discussion of: the advice of counsel that Backpage’s business practices were legal; Section 230 of the CDA; and the many wins Backpage had in federal and state courts upholding Backpage’s right to publish under CDA 230 and the First Amendment.

Defense attorneys argued that all of these things go to the “state of mind” of the defendants and their belief that they were acting in good faith and were not breaking the law. If the defendants decide to testify, they would want to speak to this, obviously.

Ruling from the bench, Humetewa said that advice of counsel testimony would not be permitted unless the defense first satisfied 4 or 5 requirements concerning legal advice, including whether the defendants made complete disclosures to the attorneys in question concerning BP’s activities.

The judge gave the defense some wiggle room concerning the defendants’ own understanding of the legality of BP’s ads and any advice or instructions they may have received, but it could not be mentioned that such advice came from an attorney.

Regarding Section 230, which offers immunity from civil liability and state criminal law for content posted by others, she ruled the law was irrelevant because CDA 230 does not immunize against federal criminal laws, like the U.S. Travel Act, which is what the defendants are charged with violating.

A prior judge on the case ruled that it *was* relevant that 230 included a safe harbor provision encouraging websites to moderate. But Humetewa disallowed discussion of this, saying that to do so would cause the trial to “go down a rabbit hole” of irrelevant material that would “confuse the jury.”

One defense attorney asked if his client could testify that the auditors of the site never informed him of any illegality, and Humetewa said she would allow this as long as communications between the auditors and the attorneys were not mentioned. Andrew Padilla and Joye Vaught, former employees of BP, could testify to their roles overseeing moderation and what was communicated to them by their superiors.

Vaught could talk about her testimony to a federal grand jury in 2012 and the fact nothing came of it. They could both testify about instructions given to them by Liz McDougal, who was in charge of moderation at one point, but they can’t say she is an attorney. BP’s past legal wins? Can’t come in as they are not relevant to this trial, said Humetewa. The defense respectfully disagreed, saying that this past litigation went to the defendants’ state of mind.

Michael Lacey and the others could testify about their belief that BP was protected by 1A, but not that they received advice of counsel to that effect. The defense needed all of these issues addressed because whether the defendants will testify hinges on Humetewa’s dictates.

And her decisions will affect which witnesses are called and how long the defense case will last. One attorney asked about the possibility of opening arguments starting by week’s end, but the defense has notified the government about 17 witnesses so far. So how long the trial lasts is still an open question. The defendants are now conferring with their attorneys.

I’m wondering if Humetewa gave the defense enough leeway to bring additional witnesses in. Interestingly, it was mentioned that one of Lacey’s witnesses will be award-winning journalist John Dougherty, formerly with Phoenix New Times. But he will not testify today. The judge put off discussion of jury instructions for now. I will give updates this afternoon.

Thursday, Oct. 19, 2023: Hyer on BP’s Origins

At the #BackpageTrial on Thursday, former Backpage sales director Dan Hyer was on the stand all morning, mostly under the direct examination of prosecutor Andy Stone. Hyer pleaded guilty to one count of conspiracy in August 2018, a few months after the feds seized and destroyed the site.

Hyer’s clean cut, 54, thin, wearing horn-rimmed glasses. He was a better witness than Carl Ferrer, Backpage’s ex-owner, who had a tendency to ramble on.

Essentially, Hyer went over all the same ground Ferrer did in September. He told Stone he’s cooperating with prosecutors in hopes the judge will show leniency. 

Though he’s copping the govt’s line, his telling of how Backpage came about rings true. Hyer initially worked for the Dallas Observer (DO), where he started out selling classified ads in 1998. DO was part of the alt-weekly chain, New Times Inc., which eventually morphed into Village Voice Media (VVM), with 17 papers nationwide.

Interestingly, Hyer’s job at first was trying to swipe classified advertisers from the Dallas Morning News, offering them a deal on placing an ad in DO. This is the same practice now being portrayed by the government as nefarious: i.e., content aggregation.

Hyer moved up to become a supervisor of other salesmen. Carl Ferrer was the national classified director and Hyer’s boss. In the ‘90s the print pubs were still doing well. But by 2003/04, the papers were “hemorrhaging revenue” as print was “all going to the internet.”

Most classified advertisements were being hoovered up by Craigslist, which was giving away much of its ad space. Hyer said the internet was an “existential threat,” and VVM faced going under.

Eventually, VVM CEO Jim Larkin gave Ferrer $50K to build a competitor site to Craigslist, and Backpage was born, “an alternative to Craigslist.” 

It’s called capitalism, which federal prosecutors apparently do not understand. The main thing that is “sold” on classified listings sites like Craigslist and the dearly departed Backpage is ad space.

The concept of holding a platform criminally liable for the acts of a third party unknown to them, who either posted (or was posted about) online, is ludicrous in the extreme. It’s also a very dangerous precedent for interactive websites/social media in general.

Section 230 of the CDA does not immunize against federal criminal statutes, of which there are thousands: drug laws, conspiracy, the Travel Act, anti-terrorism laws, money laundering, etc. And if the government cannot make a charge stick, they can jam you up for years as you fight them.

Even if you are as sinless as baby Jesus in the cradle, prosecutors don’t care about your innocence. Remember that quote from the Errol Morris documentary, The Thin Blue Line? “Any prosecutor can convict a guilty man; it takes a great prosecutor to convict an innocent man.”

If veteran newspaperman Michael Lacey, et al. are convicted in this case, the chill on free speech will be as predictable as a Russian winter. Why should you care? Because that chill means, when the government wants something off interactive sites, it will get it. And that means all of your data, everything about you.

Sadly, the internet, once a libertarian playground, has become a tool of state power, a mechanism of the authoritarian impulse. The future is frightening. Our every movement will be clocked by the state and we will be (are being) manipulated in ways we cannot imagine.

Hyer was released from his subpoena late Thursday afternoon. On Friday, we have a half day of court. I will report then. SL

Please also see:
Backpage Defense Calls First Two Witnesses, Prosecutor Ticked by Text Messages
and
Backpage Defense Moves for Acquittal, Prosecution Rests