SAN FRANCISCO — A three-judge Ninth Circuit Court of Appeals panel has upheld a lower court's denial to dismiss the case against the former owners of Backpage.com.
Attorneys for former Backpage.com owners Michael Lacey and Jim Larkin, led by First Amendment expert and noted adult industry attorney Paul Cambria, had sought the dismissal due to double jeopardy, after the pair's first trial ended catastrophically for the government in a mistrial due to prosecutorial misconduct.
"We plan to win in court," Cambria told XBIZ today.
As XBIZ reported, oral arguments were presented earlier this month before judges William A. Fletcher, Jay Bybee and Lawrence Vandyke.
Yesterday, the judges denied the appeal. Federal prosecutors could now move ahead and retry the case.
The loss for Lacey and Larkin comes a year after controversial Judge Susan Brnovich — wife of Arizona Attorney General Mark Brnovich, who recently campaigned for a U.S. Senate seat — declared a mistrial in the case.
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,” Stephen Lemons, editor of the Lacey and Larkin-associated website Front Page Confidential and the leading authority on the case, told XBIZ at the time. “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 then appealed to the Ninth Circuit, eventually resulting in today’s decision.
Judges: Government's Misconduct 'Not Egregious' Enough
The Ninth Circuit panel, Lemons reported today, “conceded that the government committed ‘misconduct’ and ‘did elicit prejudicial evidence in violation of pretrial rulings,’ but the panel ruled that the misconduct ‘was not so egregious as to compel a finding of an intent’ to provoke a mistrial.”
Lemons explained that “defense attorneys could seek a rehearing by the same panel, a review by a larger, en banc panel of the Ninth Circuit, and/or petition SCOTUS for a writ of certiori.”
A member of the defense team told Front Page Confidential that its attorneys “are still reviewing the decision at this time.”
The defense, Lemons told XBIZ today, "faced a near-Sisyphean task in overcoming the legal standard involved, which required them to show not only that the prosecution caused a mistrial in 2021, but that it intended to provoke a mistrial. Now we wait to see if the defense will seek a review of the panel's ruling and if another trial will be in the works."