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Judge denies two mistrial motions in Backpage case

It took three motions from defense attorneys for the last judge to declare a mistrial in 2021. Two motions have already been made in the new trial.

PHOENIX (CN) — Defense attorneys for former executives of may be attempting to replicate an 2021 mistrial, making two two separate motions during the federal prostitution-facilitation and money laundering trial Thursday.

Defense attorney Bruce Feder moved for a mistrial on the fourth day of trial against former executives of the now-defunct classified advertisements website after the government introduced multiple exhibits implicating the site in hosting child sex trafficking ads. 

U.S. District Judge Diane Humetewa, a Barack Obama appointee, denied the motion. 

Five former Backpage executives — including Phoenix New Times founder Michael Lacey — face a 100-count felony indictment on charges of facilitating prostitution, money laundering and conspiracy. While the website and its owners have been accused of promoting child sex trafficking outside of court, and child victims have been found on the site in the past, defendants face no such charges in this trial. 

The most prominent exhibit federal prosecutors introduced Thursday featured a letter from 21 state attorneys general across the country. It asked Backpage executives to remove the site’s adult section, which they said ran “rampant” with ads featuring child sex trafficking victims. 

The attorneys general sent the letter in 2010, soon after it asked Craigslist — the company whose business model Backpage was based on — to do the same. Craigslist complied, but Backpage didn’t.

A different judge declared a mistrial in Backpage’s case in 2021 after numerous witnesses gave emotional testimonies about children trafficked through the site. Paul Cambria, defending Michael Lacey, said the government's actions in this case are “more severe” than what constituted a mistrial in the past.

“This is the conclusion of multiple attorneys general,” Cambria told Humetewa during a morning break after the jury left the courtroom. “Because it’s so many attorneys general, it's even more people than who testified the last time.”

He called the inclusion of the letter, and former Backpage CEO Carl Ferrer’s testimony explaining it, an “irreparably prejudicial statement,” that will bias the jury beyond the ability to stay neutral.

Many of the jurors told the court during jury selection weeks ago that they don’t know if they would be able to remain fair and impartial if the case involves child sex trafficking. 

Prosecutors also displayed an email sent by Lacey to other Backpage employees in 2010 asking whether there’s any evidence of child trafficking on the site. Former executive vice president Scott Spear replied to the email, writing “we have subpoenas dealing with that exact issue.”

Ferrer told the court that Backpage received between 10 and 20 subpoenas related to prostitution and trafficking per month.

“Eventually it would go up to 100 a month,” he said. 

Feder said the terms “child trafficking” and “child sex trafficking” should have been redacted from the exhibits to avoid prejudicing the jury.

“The only reason to have these exhibits is to inject that language into the trial,” he told Humetewa during the break.

Humetewa pushed back, drawing a distinction between the use of those terms in exhibits and emotional testimony about the experiences of child victims, which, she said, was the actual reason for the first mistrial. She reminded the jury that none of the defendants are charged with such crimes, deciding her admonishment was sufficient to maintain the jury’s impartiality.

“I’ll reiterate what I told this jury that the content of these letters are not offered for the truth of the matter,” she told the attorneys. The letters, she decided, are only allowed to be admitted to show what Ferrer knew about the accusations at the time they were made. 

“My ruling stands,” she said with finality.

Joy Bertrand, representing former assistant operations manager Joye Vaught, made a second motion for mistrial after returning from the lunch break, this time over a sign posted near the courthouse’s coffee stand displaying missing children across the nation. The display is sponsored by the Center for Missing and Exploited Children, which has come up in evidence a few times in the trial so far.

Bertrand told Humetewa that the display “endorsing NCMEC” will taint jurors who see it and bias them toward thinking about child exploitation rather than the facts of the case.

Cambria suggested to the court that the sign was posted there intentionally, and Feder asked for a hearing to investigate who placed the sign there.

But the sign, featuring 13 photos of missing children and containing no information explicitly or implicitly relating to Backpage, has been displayed in the courthouse since February.

Humetewa left the courtroom to investigate the sign, raising her palms to the ceiling in a slight shrug upon examination. 

“I don’t know if the court can instruct a juror to turn off the television when they hear about a missing child,” she said, back in the courtroom, reasoning that there’s no way to keep the jury from hearing about missing children. “They’re going to be exposed to this kind of information.”

Humetewa again denied the motion for mistrial. 

The sign was removed from the area within the hour. 

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Categories / Courts, Criminal, Trials

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