Image for article titled Backpage Gets a Mistrial After Prosecution Goes Too Far

Photo: Cliff Owen (AP)

In a surprise twist, Backpage co-founders have scored a temporary victory in a federal prostitution and money laundering case that’s been ongoing since 2018. The Associated Press reports that the judge has sided with their request for a mistrial after they spent days arguing that the prosecution tainted the jury by laser-focusing on appalling accounts of victims who were sex trafficked as minors through ads on the site.

Backpage’s leadership team has not been formally charged with sex trafficking, but rather facilitation of prostitution (the legal term) and various related money laundering counts. In a motion for a mistrial filed just days after the government’s opening arguments, the defense for Backpage’s co-founders Michael Lacey and David Larkin, along with former Backpage employees, argued that the sex trafficking stories were inflammatory and irrelevant, and that the jury hadn’t been selected for their ability to fairly judge a sex trafficking trial. The defense counsel wrote that “[d]uring the past three days of jury selection, it was clear in each panel that child sex trafficking and human trafficking were lightning-rod topics for potential jurors.”

“In the absence of actual evidence, the prosecutors inflamed and prejudiced the jury with heartbreaking and horrendous tales of uncharged child sex trafficking untethered to the case the government indicted,” Whitney Bernstein, an attorney on the Backpage defense counsel, said via email. Bernstein added that the defense agreed (obviously) with Brnovich’s ruling—citing, among other points, that the “government, as prosecutors, are held to a higher standard” and that their goal should be to “win by the rules,” “not win at any costs.”

In its opening statements and witness examination, the prosecution laid the foundation of their case on stories of victims who’d been trafficked as minors, using the word “children” 47 times and “trafficking” 13 times. They asked a witness for an accounting of her sexual assaults, at age 15, by people who’d responded to Backpage ads. In a motion to limit that testimony, Backpage’s counsel argued that “none of [the witness’s] anticipated testimony will prove any nexus between Defendants and the pimps who posted Svendgard’s ads to the site.”

U.S. District Judge Susan Brnovich denied various motions for a mistrial. During opening statements, Brnovich allowed the prosecution to go ahead with their evidence, saying that “the government didn’t cross the line on that issue, in my mind, because they didn’t go into any of the details. It was merely the fact that this happened.”

The judge reversed course on Tuesday, reportedly finding that “[i]t seemed the government abused that leeway” and that the witness’s account elicited a “whole new emotional response from people.” Brnovich declared that the sum of the prosecution’s sex trafficking evidence “is something that I can’t overlook and will not overlook.”

As Gizmodo earlier reported, the prosecution conflated the definition of “prostitution” with “sex trafficking” throughout the trial. They argued that “sex trafficking” falls under the umbrella of “prostitution” and identified legal “escorts” as “so-called escorts.”

“[The mistrial] was well-warranted, but it’s so rare for judges to keep prosecutors in line that way that I never expected the defense arguments to get much grip,” Derek Bambauer, professor of internet law at the University of Arizona, said in an email.

“It also seemed like very bad lawyering on the part of the prosecution,” he added. “[T]hey ran the risk of a mistrial precisely to try to get a bunch of prejudicial material in early, despite the fact that their case is reasonably strong without any nonsense.”

The Desiree Alliance, a sex worker advocacy group that’s been following the trial, celebrated the mistrial as a victory.

It does mark a small victory for Backpage, if short-lived. More encouragingly, it might serve as a useful warning to prosecutors and policymakers who’ve historically lumped in various types of sex work with serious crimes.

“If you conflate the entire set of areas of work that sex work can pertain to, such as dancing, online cam work, movies, prostitution, fetishes, the whole thing … if you conflate all of that with ‘sexual exploitation’ or ‘sex trafficking,’ it means that we can not have an accurate understanding of situations where people actually are in abuse,” Penelope Saunders, who’s been observing the trial in Arizona, said in a phone interview. Saunders is the executive director of the Best Practices Policy Project, an organization devoted to providing services for communities throughout the sex trade, from consensual sex workers to victims of abuse. She says that muddling the two makes it nearly impossible to distribute limited resources tailored to needs. “You would have law enforcement and immigration authorities distracted and brought in to arrest people for no reason.”

Saunders observed that the prosecution seemed to be “phoning it in” and found their approach “scattershot,” without laying out a clear legal argument.

“I am often surprised in the courtroom how little work the prosecution has to do in cases about prostitution and sex work,” she said. “The prosecution really doesn’t have a high bar to pass.”

Lacey and Larkin, along with former Backpage employees, still have to fight 93 counts. The prosecution could have focused primarily on evidence suggesting that the group had been aware of and permitted sex work on the site.

A status hearing is scheduled for October 5.

This post has been updated to include comment from Whitney Bernstein.





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