PHOENIX — The Ninth Circuit Court of Appeals rejected yesterday a petition by the defense of the former owners of Backpage.com that they order a recusal of Judge Susan Brnovich over a conflict of interest concerning her husband, Arizona Attorney General and anti-sex work activist Mark Brnovich.
In yesterday’s ruling, a three-judge Ninth Circuit panel ruled against the defense of Michael Lacey and Jim Larkin, and refused to recognize the “appearance of partiality” stemming from Mark Brnovich’s repeated statements and publications — some including demonstrable falsehoods and exaggerations — tying Backpage to “human trafficking.”
Yesterday’s development was first reported 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.
An 'Anti-Trafficking' Crusader
Last September, as XBIZ reported, the defense requested that Judge Susan Brnovich recuse herself over public statements made by her husband, including 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.
Brnovich has argued that the prejudicial comments made by her husband about Backpage were not grounds for her to recuse herself over the conflict of interest.
“This case is not about Backpage,” she reportedly said during one of the hearings, although the federal complaint mentions Backpage more than 600 times.
Lacey and Larkin’s defense have produced copies of AG Mark Brnovich’s tawdry “anti-trafficking” 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 — at the time of publication not yet shuttered by the FBI — as engaging in and central to “human trafficking.”
The pamphlet is presented as the thoughts of AG Brnovich and 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 Ninth Circuit's Ruling
“Without delving into the petition’s underlying issues,” Front Page Confidential’s Stephen Lemon reported, “the Ninth ruled that the defense’s request for a ‘writ of mandamus’ ordering Judge Brnovich’s removal from the case did not meet the high standard set for immediate relief.”
“Quoting previous Ninth Circuit decisions, the panel referred to mandamus (Latin for ‘we order’) as a ‘drastic and extraordinary remedy.’ It pointed out that petitioners must demonstrate their right to mandamus is clear and indisputable and that the lower court committed ‘a clear error as a matter of law.’”
The panel ruled yesterday that Judge Brnovich had “committed no clear error.”
The trial is now scheduled to begin August 23.
For more of XBIZ's coverage of the Backpage trial, click here.
Main Image: The Brnovichs, Arizona's legal power couple.