PHOENIX — Former Backpage owners Michael Lacey and Jim Larkin filed a petition with the Ninth Circuit Court of Appeals yesterday seeking an order to recuse the Phoenix federal judge presiding over their criminal trial.
In late September, as XBIZ reported, the defense requested that U.S. District Court in Arizona Judge Susan Brnovich recuse herself over public statements made by her husband, Arizona Attorney General Mark Brnovich, a vocal activist against what he calls “human trafficking,” which includes a lurid pamphlet published by his office.
A month later, Judge Brnovich issued a ruling detailing her refusal to recuse herself from the case, denying the defendants' contention that evidence of her husband’s explicit activism against them as part of a crusade alleging “human trafficking” resulted in a conflict of interest and cast doubts on her impartiality.
Yesterday, Lacey and Jim Larkin filed a “petition for a writ of mandamus” with the Ninth Circuit, asking the higher court to intervene in what they see as a potential source of prejudice against them.
'Inaccurate Assumptions About Backpage'
The development was first reported today by news site FrontPageConfidential.com, which is published by Lacey and Larkin and edited by Stephen Lemons, and is the last journalistic remnant of their once-powerful company, Village Voice Media.
According to Lacey and Larkin’s mouthpiece, AG Mark Brnovich’s “inaccurate assumptions about Backpage go to the heart of the case and raise the specter of potential bias on behalf of the judge.”
“The petition argues that Arizona AG Brnovich ‘has interests that could be significantly affected by the outcome of the case,’ and that his statements and actions 'could cause reasonable people to question the court’s impartiality,'" FrontPageConfidential reported.
As they have since their initial recusal filing in September, Lacey and Larkin made much of AG Mark Brnovich’s tawdry “anti-trafficking” 2017 pamphlet “Human Trafficking: Arizona’s Not Buying It,” which features a cover portraying a stock photo of a very young woman wearing a skimpy top and leaning into the window of a car.
The sensationalistic 2017 pamphlet, still available as a government publication, wildly exaggerates the prevalence of what it calls “human trafficking” in Arizona, illustrates it with stock photography of young cis white women in peril that do not match any known statistics about actual human trafficking and repeatedly mentions Backpage.com — at the time of publication not yet shuttered by the FBI — as engaging in and central to “human trafficking.”
The pamphlet is so much presented as the thoughts of AG Brnovich that it even begins with an introduction titled “Letter From Mark” (sic) where the public servant — and husband of the federal judge in charge of Backpage’s prosecution — takes full ownership of the alarmist statements that follow.
The Issue of Prejudice
In yesterday’s filing, FrontPageConfidential reports, “the defense contends that AG Brnovich, others on his behalf and organizations with which he is associated with have vilified Backpage, assumed its complicity in sex trafficking and drawn conclusions about facts that will be at issue in the trial of Lacey, Larkin and their four co-defendants, which is scheduled to begin April 12, 2021, almost three years to the day after they were arrested by the FBI.”
According to Lacey and Larkin’s lawyers, the recusal “is required under 28 U.S. Code § 455, the federal law that states that any justice, judge or magistrate ‘shall disqualify [herself] in any proceeding in which [her] impartiality might reasonably be questioned’.”
Last month, Judge Susan Brnovich had convinced herself — writing in the third person — of her lack of bias to her own satisfaction, concluding in the formal refusal to recuse herself that Lacey and Larkin are now appealing that “the court will remain impartial in this matter, and no reasonable person fully informed of the facts would question the court’s impartiality based on the court’s marriage to AG Brnovich."
For more of XBIZ's coverage of the Backpage.com trial, click here.
Main Image: The Brnovichs, Arizona's legal power couple.
