Septembers are arid and oven-like in Arizona, and 2021 was no exception, with highs arching past 100 degrees. It’s a dry heat, as they say. But in the sadistically-designed glass box that is the Sandra Day O’Connor U.S. Courthouse in downtown Phoenix, the hothouse-like interior was muggy, like breathing butter.
Covid made it worse, with the first trial of veteran newspapermen Michael Lacey, Jim Larkin and four others being held in the circular, well-like “Special Proceedings Courtroom,” which allowed the defense and the prosecution to practice social distancing.
I watched the proceedings from a gallery above, covering the trial for a website founded by Lacey and Larkin, FrontPageConfidential.com, which reports on their case and other First Amendment issues.
Lacey and Larkin faced—and still face—numerous counts of facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act and attendant money laundering and conspiracy allegations. The charges stem from their former ownership of a Craigslist-like classified listings site, Backpage.com.
The government holds both men vicariously liable for criminal acts allegedly connected to 50 adult-themed ads for dating, escorts and massage posted to the site by its users before the FBI seized and removed it from the internet on April 6, 2018. These ads appeared alongside millions of ordinary listings such as car sales and apartments for let.
The first trial of Lacey, Larkin and four others, which was expected to last three months, was fated to end after just three days of testimony due to repeated prosecutorial misconduct. Four government witnesses testified before federal Judge Susan Brnovich declared a mistrial. The most significant witness was Brian Fichtner, a supervisory special agent with the California Attorney General’s Office.
Fichtner was the lead investigator on a 2015 investigation of Backpage that then-California AG Kamala Harris used to boost her successful 2016 campaign for U.S. Senator, though the charges of “pimping” against Lacey and Larkin didn’t stick and were twice thrown out by state court judges.
During direct questioning by federal prosecutors, Fichtner reviewed video he’d taken of Backpage’s escort section for Sacramento, saying that the site’s adult-themed listings for escorts were “blatant prostitution” ads. But on cross-examination by Lacey’s attorney Paul Cambria and Larkin’s then-attorney Tom Bienert, Fichtner effectively became a witness for the defense. Fichtner admitted that none of the hundreds of ads he reviewed on Backpage were for illegal transactions. He also averred that he’d never made an arrest for prostitution based solely on a Backpage ad, nor did he know of anyone who had.
He eventually conceded that the ads he reviewed in 2015 didn’t propose unlawful transactions of sex for money. He also told the court that he’d have to be in the room with an escort and a client to decide if the encounter involved prostitution. Escorting is legal, as long as it doesn’t involve an exchange of money for sexual contact. It’s licensed in many cities and states.
Bienert got Fichtner to agree that Bienert could legally hire two escorts to come to his home and pleasure each other while he pleasured himself, as long as he didn’t touch their genitals or vice versa. Watching Fichtner’s testimony, I wondered, “So why are we here?” After all, if a state investigator couldn’t look at an escort ad with risqué photos and vague verbiage and determine if it was proposing an unlawful transaction, how were Backpage moderators supposed to do so?
The government’s case was weaker than leftover Coors Light. Which may help explain its actions, which led to a mistrial. In defiance of orders from the court, prosecutors repeatedly mentioned and elicited testimony about inflammatory crimes that Lacey, Larkin, et al. weren’t accused of: specifically, rape, sex trafficking and child sex trafficking.
In his opening statement on behalf of the government, U.S. Department of Justice attorney Reggie Jones casually conflated consensual adult prostitution with sex trafficking, which involves force, fraud or coercion. He also mentioned sex trafficking and child sex trafficking more than 60 times. And he showed the jury X-rated pornography that never ran on the site.
When Judge Brnovich declared a mistrial in a ruling from the bench on September 14, 2021, she stated that Jones’ outlandish opening “was close to causing a mistrial” in and of itself. She noted that she’d given the prosecution some “leeway” during the proceedings. “Yet in the opening, and with every witness thereafter, it seems, the government has abused that leeway,” she said. She also said that she didn’t believe the misconduct was “intentional.” I’d take issue with the jurist there, or would if she were still on the case. She recused herself for unknown reasons after the mistrial.
As it heads for a retrial on August 8, the Lacey/Larkin case is awash in government misconduct and has since its beginning.
Just before the FBI stormed both men’s houses in SWAT-style raids better suited for the arrest of El Chapo, the feds seized nearly all of their assets. They also took more than $10 million in defense lawyers’ trust accounts, a move that has impoverished the defense and forced some lawyers to abandon the case. Three of Lacey and Larkin’s four co-defendants now have court-appointed attorneys. Add to this the $1 million bonds required of each man and the ankle monitors they’ve worn for five years, though pretrial services recommended that they be released on their own recognizance.
The FBI also destroyed a massive amount of exculpatory evidence by not preserving the website in a read-only form. During discovery, prosecutors inadvertently revealed two internal DOJ memos that argued against prosecution, in part because Backpage cooperated with law enforcement, helping to rescue endangered women and girls and prosecute their victimizers. The memos also acknowledged that some adult services, like stripping and escorting, are legal.
Though the memos were published online by Reason magazine, prosecutors have successfully blocked them from being used by the defense.
And as a new trial looms, more prosecutorial skullduggery is afoot.
At a recent hearing before federal Judge Diane Humetewa, the fourth judge to sit on the case, Assistant U.S. Attorney Kevin Rapp argued that some new attorneys on the defense side didn’t need extra time to review the government’s proposed trial exhibits, because the case had already gone to trial and prosecutors intended to present the same case as last time, though with fewer than the nearly 80 witnesses the government originally intended to call.
Another mistrial? Seems like it.
Meanwhile, the government is playing a double game, insisting on a broad reading of the Travel Act in Phoenix’s federal court, while arguing for a narrow—and correct—reading of the law at the U.S. Court of Appeals for the D.C. Circuit. This Janus-faced approach suits the government’s ends. Under the law’s precise reading, it’d be impossible to hold Lacey and Larkin responsible for third-party prostitution offenses connected to the posting of adult ads they’ve never seen by persons unknown to them.
I recall when adult advertising like this was so common it appeared in the Yellow Pages and The Washington Post. Weeklies were thick with such ads. No one batted an eye.
Craigslist took them online, along with all classified ads. Lacey and Larkin once owned a 17-paper chain of alternative weeklies that produced award-winning journalism. That journalism needed advertising to survive.
Consequently, they created Backpage as a knockoff of Craigslist. Politicians intent on censoring adult advertising first went after Craigslist, which acquiesced and ditched its adult services section. Lacey and Larkin refused. Instead, they fought for the right of Backpage to publish adult content and won numerous victories in federal and state courts, which have deemed the site protected by the First Amendment and federal law.
But their journalism angered powerful people and entities, such as the U.S. Senate, John and Cindy McCain and the police. As a result, they’ve been arrested more than once for what they’ve written and published.
In 2007, they were arrested by deputies of the racist Sheriff Joe Arpaio, because they exposed a bogus grand jury on the cover of the Phoenix New Times, the paper they founded in 1970 in protest of the Kent State Massacre and the Vietnam War.
Arpaio wanted revenge for years of blistering coverage and so had the county’s top prosecutor, a political ally, gin up a grand jury to investigate the paper and its online readers. Outrage followed the arrests, and the county attorney dismissed the case.
I was working for New Times as a columnist and political reporter, and was in the media scrum as Lacey exited the jail after bailing out. As he put on his belt, someone asked him why he and Larkin had been arrested.
“We’re being arrested for raising hell,” Lacey said. “It’s sort of a tradition that journalism has.” The hellraising continues apace, as does the retaliation of the men with badges.
—Stephen Lemons is a freelance journalist in Phoenix, Arizona who writes and edits FrontPageConfidential.com. His opinions are his own, and he doesn’t speak for the defendants.