Judge Declares Mistrial in Backpage.com Case

PHOENIX — Judge Susan Brnovich declared a mistrial this morning in the federal trial of former Backpage.com owners Mike Lacey and Jim Larkin, which started earlier this month in Phoenix.

The defense attorneys had first moved for a mistrial over a week ago, as soon as the federal prosecutor finished his opening statement, after the government presented the testimony of a supposed “online sex trafficking expert” who happened to be an anti-porn and anti-sex-work crusader and regular speaker at NCOSE (formerly Morality in Media) conferences.

That witness, Dr. Susan Cooper, has gone on record as claiming that adult content has an effect “like cocaine” on the human brain, a scientifically debunked position that is often parroted by many religiously inspired War on Porn activists.

Lacey’s attorney, Paul Cambria, renewed his calls for a mistrial yesterday, alleging that the federal government had “obviously prepared this witness” to repeat the words “children” and “trafficking” over and over to influence the jurors during a case “where there is no charge of trafficking of children.” Larkin’s attorney, Thomas Bienert, joined the motion.

Judge Brnovich, who had consistently ruled against the defense, surprised the court by announcing she had “concerns that the government has crossed that line several times, even after I advised the government not to do it, at sidebar.”

A ‘Highly Inflammatory’ Prosecution Strategy

Phoenix-based journalist Stephen Lemons, who has been covering the case closely since it began, broke the news of the mistrial on Twitter.

Lemons currently writes for Front Page Confidential, the last remaining outlet of the once-powerful Village Voice Media organization headed by Lacey and Larkin, and he is arguably the journalist closest to the defendants.

Describing Cooper’s testimony yesterday, Lemons wrote that “under questioning by prosecutor Reggie Jones, [she] consistently conflated voluntary, adult sex work with sex trafficking, despite strenuous objections from attorney Joy Bertrand, who represents one of Lacey and Larkin’s co-defendants.”

Bertrand, Lemons also reported, had “filed a motion on Sunday asking for Judge Brnovich to preclude Cooper’s testimony, which Bertrand anticipated would be ‘highly inflammatory’ and create ‘new, evidentiary rabbit holes for the jury […] to fall down regarding third-party conduct.’ Brnovich denied the motion to block Cooper, or, in the alternative, to hold a hearing to determine Cooper’s qualifications to testify.”

The controversial judge — she is married to the current Arizona Attorney General, who has gone on record with prejudicial statements against Backpage and sex work in general — nevertheless “allowed Cooper’s testimony to proceed, but limited it to what Jones called the ‘vernacular’ of ‘prostitution and sex trafficking,’ and the supposed role of online platforms in trafficking.”

As Lemons pointed out, “neither Lacey, Larkin or their four co-defendants are charged with sex trafficking or child sex trafficking. Rather, they face up to 100 counts regarding conspiracy, money laundering and the facilitation of misdemeanor state prostitution offenses in violation of the U.S. Travel Act.”

Judge Brnovich: ‘Something That I Can’t Overlook’

Elizabeth Nolan Brown, covering the trial for Reason magazine, reported on the judge’s statements this morning in declaring the mistrial.

“I, at the beginning of this, gave the government some leeway, because child sex trafficking, sex trafficking, are forms of prostitution,” Judge Brnovich said. “Yet, in the [government’s] opening and with every witness thereafter, it seems, the government has abused that leeway.”

Brnovich confirmed that the opening statement from federal prosecutor Reggie Jones “was close to causing mistrial,” and that the government, despite agreeing “to minimize the focus on child sex trafficking” after that, continued attempting to prejudice the jurors.

Although Brnovich clarified that she didn’t “see any of these [instances] as intentional misconduct,” she labeled the cumulative effect as “something that I can’t overlook and won’t overlook. So, the motion for mistrial is granted. I will call the jury in to dismiss them and then we will set a date a couple weeks out to talk about when we can reconvene.”

Cambria: Prosecutors ‘Kept Harping on’ Child Trafficking

XBIZ spoke this morning to Mike Lacey’s defense attorney, Paul Cambria, who said that “the government tried to try this case involving children and people underage, and they kept coming back to that and kept harping on that even though none of the charges are about that. The judge warned them and they kept going, so a mistrial was declared.”

“We were very grateful we had a federal judge that would be independent,” Cambria added. “The court asked us to come back October 5, for scheduling. Whether for motions or for a trial, we don’t know yet. We’ll be caucusing among us in the defense. We don’t know what the prosecution is doing or will do.”

Cambria also told XBIZ that the defense had “interviewed a number of the jurors after she granted the mistrial, and they were all favorable to us.”

For more of XBIZ’s coverage of the Backpage trial, click here.

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