SAN FRANCISCO — The Ninth Circuit Court of Appeals this week scheduled for September 2 oral arguments regarding a lower court’s refusal to dismiss the Backpage.com case, following the notorious 2021 mistrial declared by an Arizona judge.
Oral arguments will be presented a year after controversial Judge Susan Brnovich — wife of Arizona Attorney General Mike Brnovich, who is currently campaigning for a U.S. Senate seat — declared a mistrial in the case against former Backpage owners Michael Lacey and Jim Larkin. The mistrial ruling came after prosecutors repeatedly ignored Judge Brnovich's instructions not to attempt to prejudice the jury by bringing up unrelated and inflammatory “child sex trafficking” insinuations.
“The trial judge declared a mistrial in September 2021 due to prosecutorial misconduct,” Phoenix reporter Stephen Lemons told XBIZ. Lemons has been covering the case for years, for the Lacey-Larkin online publication Front Page Confidential. “The defense moved for dismissal, arguing that a new trial would violate the Fifth Amendment’s bar on trying someone twice for the same crime.”
Lemons explained that a new judge “denied that motion without holding an evidentiary hearing. The defense has appealed to the Ninth Circuit. The matter is fully briefed, and the court has tentatively scheduled oral arguments for Sept. 2 in San Francisco.”
According to Lemons, “the government knows that the speech that appeared on Backpage was legal and protected by the First Amendment. One of its own witnesses said so at trial. It’s time for this unhinged vendetta to end.”
Lemons’ recent Front Page Confidential report on the new date for oral arguments outlined the format of upcoming hearing, which will afford each side 15 minutes before a panel of three judges.
“A notice on the federal docket states that the panel could still decide to forgo oral arguments and rule from the briefs in the case,” the report noted.
Backpage was shuttered and seized by federal authorities in 2018, days before President Trump signed FOSTA into law. The government accused Lacey, Larkin and others of a number of alleged crimes related to their ownership of the popular adult-oriented classifieds website. The case was subsequently used by several political figures, including Vice President Kamala Harris, as an example of the need for the FOSTA Section 230 exception.
Federal prosecutors accused the company of “participation in a conspiracy to facilitate and promote prostitution,” and also of money laundering, human trafficking and other charges, which were strongly disputed by the defense.
For more of XBIZ’s coverage of the Backpage case, click here.