A federal judge yesterday declared a mistrial in the case against Backpage's founders, ruling that US prosecutors unfairly tainted the jury by focusing too heavily on claims of child sex trafficking in a trial that involved zero charges of child sex trafficking. A new trial will be held.
"'The government, as prosecutors, are held to a higher standard,' said Judge Susan Brnovich from the bench as court opened for what was expected to be the eighth day of the trial. 'Their goal is not to win at any costs, but their goal is to win by the rules,'" according to an Arizona Republic article.
The case against Backpage founders Michael Lacey and James Larkin, plus five Backpage executives and managers, is in US District Court for the District of Arizona. The actual charges are for conspiracy, facilitating prostitution, and money laundering. An order confirming the declaration of mistrial was filed, but Brnovich explained her reasoning orally.
US law enforcement agencies seized Backpage.com in April 2018, with the Justice Department calling it "the Internet's leading forum for prostitution ads, including ads depicting the prostitution of children."
Prosecutors persisted despite warnings
"I, at the beginning of this, gave the government some leeway because child sex trafficking [and] sex trafficking are forms of prostitution," Brnovich said, according to a Reason article. "Yet in the [government's] opening and with every witness thereafter, it seems, the government has abused that leeway." The defendants will be punished if the government proves they "knowingly facilitated prostitution... but it should be done correctly," she said.
After the prosecution's opening statement came "close to causing [a] mistrial," the government agreed to minimize its focus on child sex trafficking, the judge reportedly said. Brnovich warned prosecutors to keep testimony focused on the charges in the 100-count indictment and "said she wanted to tamp down on discussions of child sex trafficking and murders of people who had advertised on Backpage, knowing such testimony would inflame the jury," the Arizona Republic wrote. But one prosecution witness, a physician who works with sex trafficking victims, "emphasized child sex trafficking above everything else," Brnovich said.
"Brnovich said such testimony was allowable only if it involved evidence that Backpage executives and employees knew about it," according to the Arizona Republic. The article continued:
Similarly, Brnovich said that testimony given by Jessika Svendgard, who discussed being sold as a teen on Backpage, went beyond the legal boundaries she set in place. Brnovich said that despite her ruling that prosecutors stay away from day-in-the-life style testimony from any prostitutes or trafficking victims, the government's attorneys succeeded in getting Svendgard to discuss exactly that.
Svendgard told jurors, at times through tears, about being sold on Backpage by a series of pimps. "I would be raped for money," she said. Brnovich said the use of that word "raises a whole new emotional response from people."
Brnovich said she doesn't view the prosecutors' mistakes "as intentional misconduct," but "the cumulative effect of all of that is something that I can't overlook and won't overlook." The judge scheduled an October 5 status hearing to discuss a new trial.
Defendants sought acquittal
Yesterday's ruling came in response to a defendants' motion for acquittal or, at minimum, mistrial. The defendants contended that the "government's opening argument was a parade of horribles about human trafficking destroying the lives of trafficked women and children, with barely any mention of charged counts and zero linkage of any defendant to any charged count." The government "absolutely ignored the court's admonitions" to focus on the charges, which center on "whether each individual defendant had specific knowledge of each charged ad and specifically intended to promote a business of prostitution by that ad," the motion said.
"During two hours of improper, inflammatory argument, the government failed to allege that any defendant had knowledge of a single ad charged in the indictment, much less set forth any facts that could establish the specific intent necessary to convict on any count," the motion also said.
The US government's response said that the court "issued a pretrial ruling addressing this issue, finding that '[s]ex trafficking and child sex trafficking are, by definition, both forms of prostitution,' and '[e]vidence that tends to prove that defendants were aware that Backpage.com was being used to facilitate sex trafficking and child sex trafficking are extremely probative to show notice to defendants that the website was being used for illegal purposes'—including facilitation of prostitution."
"Throughout the last three years of intense pretrial litigation, defendants never seriously addressed any evidence concerning their prostitution-marketing strategies," the US argued. "In the instant motion, defendants studiously avoid discussing this evidence. Rather, defendants continue to take the exceedingly narrow view that they can only be liable if they had specific knowledge of each individual ad."