At the request of this writer, editors at The Washington Post issued a correction to an April 8 review of former California prosecutor Maggy Krell’s self-serving memoir, Taking Down Backpage.

The review by E.J. Graff, managing editor of WaPo’s “Monkey Cage” blog, took at face value Krell’s claims in the book, presuming the guilt of veteran newspapermen and ex-Backpage owners Michael Lacey and Jim Larkin.

Graff made serious errors in her review, such as stating that the two men are under “house arrest” and “awaiting trial,” ignoring the fact that their case had already gone to trial once in September 2021, ending in a mistrial after just eight days due to prosecutorial misconduct.

Prosecutors provoked the defense to move for — and get — a mistrial by repeatedly introducing inflammatory material unrelated to the actual charges in the indictment, in defiance of the judge’s orders.

But Graff didn’t use the word “mistrial” once in her original review. She also flubbed facts regarding the plea deal of Carl Ferrer, Backpage’s CEO, to whom Lacey and Larkin sold Backpage in 2015.

WaPo’s correction, which comes at the beginning of Graff’s edited piece, states the following:

“An earlier version of this review incorrectly said that Carl Ferrer received a reduced sentence of five years on charges of money laundering and conspiracy to facilitate prostitution. He pleaded guilty in April 2018 but has not been sentenced. The review also incorrectly said that Mike Lacey and James Larkin are under house arrest while awaiting trial on charges of facilitating prostitution, money laundering and conspiracy. The men are subject to location monitoring and travel restrictions but are not under house arrest, and their case is now before the U.S. Court of Appeals for the 9th Circuit following a mistrial. The text has been corrected.”

Assumption of Illegality

Book reviews are by nature subjective, but to borrow a line from the late Sen. Patrick Moynihan, Graff is welcome to her own opinion, not her own facts. A little skepticism of Krell’s claims would have improved Graff’s review immensely.

Graff writes that Krell and her team “painstakingly gathered evidence and wrote warrants to prove that Backpage was not a neutral platform occasionally used by nefarious traffickers, but was actively soliciting and helping to create these illegal ads — or as she writes, that the owners ‘knew their website incited rape and torture and even murder and that they didn’t care.'”

This incendiary paragraph remains in the piece, though its central premise is demonstrably untrue. Adult-oriented ads on Backpage for massage, escorts, striptease, etc. were not “illegal” on their face.

This fact was backed up at trial by prosecution witness Brian Fichtner, an investigator with the California Attorney General’s office, who testified at the September trial of Lacey and Larkin that he could not make an arrest for prostitution based solely on the ambiguous language or sexy photos in some of the ads. Nor was he aware of anyone who had.

I’m case you missed it yesterday… federal judge grants Backpage defendants’ motion for a mistrial. Says she "gave the government some leeway" yet repeatedly "abused that leeway" https://t.co/J60SEtVehE

— Elizabeth Nolan Brown (@ENBrown) September 15, 2021

Fichtner, who worked on Krell’s absurd “pimping” prosecution, admitted under cross-examination that Backpage’s ads could have been for lawful adult services under California law.

Backpage did not “create” these ads. Rather, the ads were posted by Backpage’s users to the site. As for the contention that Lacey and Larkin “didn’t care” if illegal posts appeared on the site, Backpage actually spent millions of dollars moderating the site for improper and illicit content.

Ads containing illegal content were removed. Those suspected of involving minors were reported to the National Center for Missing and Exploited Children, sometimes more than 400 per month. Subpoenas from law enforcement were answered within 24 hours, less if a missing child was involved.

Such moderation is not required by Section 230 of the Communications Decency Act, but it is allowed and even encouraged by the federal statute, which grants immunity in most cases for civil and state criminal complaints.

By any yardstick, Backpage went over and above what was required by the law to assist law enforcement, winning plaudits from federal, local and state police. In 2011, FBI Director Robert Mueller signed a certificate of recognition to Ferrer for Backpage’s assistance “with an investigation of great importance.”

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

The certificate further states that the FBI’s “ability to carry out its investigative responsibilities” was “greatly enhanced” as a result.

Predictably, when the FBI — not Krell — took down Backpage in 2018, removing it from the internet, law enforcement could no longer use it as a trusted resource.

Adult-themed advertising fled overseas to sites largely unresponsive to U.S. subpoenas. Government studies have shown that the FBI’s efforts to rescue trafficked women and children have been hampered as a result of Backpage’s demise.

Graff maintains that women and children are better off without Backpage. But that is obviously not the case.

No Joan of Arc

Graff’s hero-worship of a politically ambitious prosecutor is unseemly, especially considering the reality of Krell’s failed 2016 prosecution of Lacey, Larkin and Ferrer on bogus “pimping” allegations.

Such state prosecutions were not permitted under Section 230. Federal courts also found the content on Backpage to be protected by the First Amendment.

Indeed, years before Krell’s prosecution, her boss, then-California AG Kamala Harris, signed a public letter to Congress along with other state AGs, asking that the federal government amend the law so they could bring state criminal charges against Backpage.

Krell brought the pimping charges anyway.  In doing so, the prosecutor handed Harris a spectacle that boosted the latter’s campaign for the U.S. Senate: the image of Lacey, Larkin and Ferrer in orange jumpsuits in a jail cell in a Sacramento courtroom, as cameras captured it for the TV news.

Harris won her Senate campaign, but the pimping charges were dismissed by a state court judge. Just before Harris left for DC, her office refiled the charges a second time, tacking on some money laundering counts as well.

In 2017, the pimping charges were again tossed, while some of the money-laundering counts survived — barely. For any other prosecutor, this two-time loss would be a cause for chagrin. But Krell paints it as a win in her book.

The feds flipped Ferrer in 2018 with a sweet plea deal allowing him to keep some of his significant assets and plead guilty to one federal count of conspiracy and some state charges in Texas and California. Most observers expect him to do zero time.

Graff overlooks this inconvenient history, writing: “Two days before Christmas in 2016, [Krell] filed money laundering charges. In this round, she and her colleagues got Ferrer to plead guilty and become a cooperating witness against his former bosses in exchange for a lighter sentence.”

If Graff had done a little Googling, she would have found plenty online to dispute Krell’s version of events, including a piece by senior Reason editor Elizabeth Nolan Brown, who explained at length why Krell cannot take credit for “taking down” Backpage.

Brown speculates that Krell may have written the book “with the idea that, by this point, the Backpage defendants would have been found guilty and she could soundly claim at least some part in their ‘takedown.'”

But Brown observes, “that didn’t happen,” and, “California’s contribution to the case is questionable,” given Fichtner’s testimony, which “arguably did more to help the defense than his own team.”

Any way you slice it, Krell’s no Joan of Arc, here. She used her authority to advance Kamala Harris’ political aspirations by wrongly prosecuting Lacey and Larkin.

In a Trumpian spin, Krell wants people to believe her attempted 2016 prosecution was actually a victory and that the feds’ 2018 eradication of Backpage was a win for women and children.

The ill-informed or willfully blind may buy such hooey. Graff certainly did. But anyone knowledgeable of the case can see right through Krell’s narcissistic charade for what it is.

And ICYMI:
Prosecution Hits First Amendment Iceberg in Lacey/Larkin Case
and
WaPo Reviewer Drinks Prosecutor Maggy Krell’s Kool-Aid