- Ambassador Cindy? Only If You Can Forget the McCains’ Scandal-Plagued Existence - February 28, 2021
- Judge Brnovich Rejects Defense Subpoena to AG Brnovich in Lacey/Larkin Case - February 23, 2021
- Judge Brnovich Resets Lacey/Larkin Trial as Ninth Circuit Weighs Ordering Her Recusal - February 13, 2021
Judge Presiding Over Arizona Prosecution Of Backpage Denies Discovery Requests Targeting Her Husband, Who Happens To Be State Attorney General
from the i'm-sorry-but-wtaf dept
FIRST THIS UPDATE: Update: In the initial version of this post, we falsely claimed that state Attorney General Brnovich was prosecuting the case. It is actually a federal case, prosecuted by the DOJ. The subpoena just relates to statements made by the state Attorney General regarding Backpage. We regret the error.
Filed Under: conflict of interest, evidence, foia, mark brnovich, section 230, susan brnovich
Companies: backpage
"Here's one more horrifying postscript to the still-ongoing criminal prosecution(s) of Backpage's executives. Courts and attorneys general (including newly installed VP Kamala Harris) tried to run the company in on prostitution charges but often found their efforts rebuffed by courts who didn't see how hosting third-party ads was the same thing as aiding and abetting sex trafficking.
Prosecutions abounded. So did a cottage industry of pearl clutchers and hand wringers -- many of which were holding powerful offices in Washington DC. These people were convinced the only way to fight sex trafficking was to punch holes in Section 230. Despite being warned against doing so by none other than the DOJ, they went ahead and passed FOSTA. This anti-sex trafficking law has been used exactly once in a criminal case since its inception.
>> But here's the new thing, via Stephen Lemons writing for Front Page Confidential. The undercurrent of corruption behind the Backpage prosecutions continues to flow. It was never meant to be a fair fight. It was meant to make Backpage an example after other online services managed to shrug off misguided investigations and prosecutions attempting to turn hosts into criminal confederates.
One of the goals of government work -- especially as it pertains to checks and balances -- is to avoid any appearances of impropriety. But in Arizona, appearances appear to be unimportant. Impropriety is in the eye of the beholder. And if the beholder wields less power, too fucking bad. Here's how things are being handled in the government's attempt to prosecute Michael Lacey and Jim Larkin of Backpage. . .
Appearance? No, actual impropriety!
A game of legal ping pong has ensued in the Lacey/Larkin case, with U.S. District Court Judge Susan Brnovich shooting down a defense subpoena seeking the same docs from her husband, Arizona Attorney General Mark Brnovich, as a public records request from the defendants, now pending at the AG’s office.
On February 11, the judge ruled against the defense’s motion for a subpoena to her spouse’s office, requesting “all correspondence or records” discussing the defendants, their case and the defunct listings website at the center of it all, Backpage.com.
Welp.
The only judge who has yet to recuse herself from this case is married to the state Attorney General who has made comments concerning Backpage that might be relevant to the case. And yet, Judge Brnovich sees nothing wrong with presiding over it and denying discovery materials to the people attempting to defend themselves -- when that discovery involves her husband.
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The son of a construction worker, Michael Lacey came of age in Newark, New Jersey, before moving west in the late 1960s to attend Arizona State University. Lacey had already dropped out in 1970, when he and a pair of students published the inaugural issue of Phoenix New Times as a response to the ultra-conservative local media’s coverage of campus antiwar protests. Two years later Lacey teamed up with another ASU dropout, Jim Larkin, to transform the campus paper into a self-sustaining business.
More > "The trial promises to be the First Amendment donnybrook of the century, with the federal government squaring off against Lacey and Larkin, former owners of the now-defunct online listings giant Backpage.com.
Judge Brnovich Rejects Defense Subpoena to AG Brnovich in Lacey/Larkin Case
A game of legal ping pong has ensued in the Lacey/Larkin case, with U.S. District Court Judge Susan Brnovich shooting down a defense subpoena seeking the same docs from her husband, Arizona Attorney General Mark Brnovich, as a public records request from the defendants, now pending at the AG’s office.
On February 11, the judge ruled against the defense’s motion for a subpoena to her spouse’s office, requesting “all correspondence or records” discussing the defendants, their case and the defunct listings website at the center of it all, Backpage.com. . .public statements made by the AG and his office regarding Backpage create an “appearance of partiality,” requiring her to step away from the proceedings, in compliance with federal law.
The defense also contends that AG Brnovich has non-economic interests “that could be significantly affected by the outcome of the case.” Notably, the AG has “staked his own ‘reputation and goodwill’ on his claim [that] Backpage.com/Petitioners were guilty of serious criminal conduct.”
(Please note: AG Brnovich is not prosecuting the case. It is a federal prosecution being pursued by the U.S. Department of Justice.)
The AG, after all, is a popular Arizona politician who has successfully won statewide office on two occasions, and many people anticipate he will run for governor in 2022. If so, his campaign and the Lacey/Larkin trial could easily overlap, as the trial was recently rescheduled to begin Aug. 23, and may take several months to complete.
And, if the AG’s wife packs away the defendants for a long stretch in the federal pen, how could that not help a Republican gubernatorial candidate, especially one with a law-and-order platform?
Nevertheless, Judge Brnovich has refused to recuse herself, insisting that she can be impartial, despite the hostile rhetoric of her husband and his office toward Backpage.
As a result, in November, Lacey and Larkin petitioned the Ninth Circuit Court of Appeals for a “writ of mandamus” that would order Judge Brnovich to withdraw and let another judge take over. (Brnovich is the third judge on the case, the first two having recused themselves without explanation.)
The Ninth has since set March 3 as the date it will review pleadings on the issue.
“It brings the issue of the potential conflict closer to home, because it’s an issue that directly involves the Attorney General’s office.” – Michael Piccarreta, former Arizona State Bar president on Judge Brnovich’s subpoena ruling.
The stakes could not be higher. Prosecutors have charged defendants with 100 counts of money laundering, conspiracy and the facilitation of prostitution. The charges are based on a meshuggeneh theory that the accused are responsible for illegal acts committed by others — acts allegedly connected to adult ads posted by the site’s users.
(It is a preposterous theory of vicarious liability, which, if hypothetically applied to someone like beer heiress Cindy McCain, might seek to hold her indirectly responsible for DUI car crashes that result from the excessive drinking of beer distributed by her family business, Hensley Beverage Company. Which, of course, would be nearly as ludicrous as the Lacey/Larkin prosecution.). . .
You can look at the defense’s Jan. 21 letter to the AG’s office, here, and the AG’s response, here. Please note that the AG’s letter is incorrectly dated and states that the original request was made on Nov. 28, 2020, which also is wrong.
Piccarreta on Point
In her ruling on the AG subpoena, Judge Brnovich seems to be making the defense’s case about an “appearance of partiality.”
According to Michael Piccarreta, a Tucson attorney and former president of the Arizona State Bar, the matter is now front and center.
“It brings the issue of the potential conflict closer to home, because it’s an issue that directly involves the Attorney General’s office,” he explains.
“I’m not saying that her ruling wouldn’t be the same regardless,” he says. “All I’m saying, is it just makes things uncomfortable for everybody.”
Piccarreta knows the case sideways and back. He once represented one of Lacey and Larkin’s fellow defendants, Andrew Padilla, who was Backpage’s operations manager before the U.S. government seized and swallowed the massive, international website like Shrek downing a sack of onions.
But the government decided to swoop in and seize the money set aside for the defense of Padilla and another defendant, Joy Vaught, Padilla’s onetime assistant. Piccarreta and another attorney were forced to withdraw from the case. Now Padilla and Vaught are repped by attorneys paid by the U.S. government. . .
Regarding the NCMEC subpoena, the judge wrote that the defendants were seeking “‘large swaths’ of communications and internal documents regarding Backpage.com.” She characterized the move as improper, calling the defense request “an attempt to embark on a fishing expedition.”
Asked about Judge Brnovich’s “fishing expedition” comment and her rejection of the NCMEC subpoena, Piccarreta cracked wise.
“I viewed it as a fishing expedition with a big trout on the line.”
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Judge Brnovich Resets Lacey/Larkin Trial as Ninth Circuit Weighs Ordering Her Recusal
As the Ninth Circuit Court of Appeals ponders her removal from the case, U.S. District Court Judge Susan Brnovich on Friday reset the start of the trial for veteran newspapermen Michael Lacey and Jim Larkin to August 23 in Phoenix’s…
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