Mistrial Declared In Backpage Founders' Trial; After DOJ Ignores Judge's Rules Regarding What It Could Present

from the poisoning-the-well dept

As we noted recently, the trial of Backpage's founders finally started after years of legal wrangling. However, the judge has already declared a mistrial after the DOJ, in typical DOJ fashion, tried to ignore the judge's warnings against focusing too specifically on the specifics of sex trafficking alleged to have occurred on the site. Specifically, prosecutors repeatedly referred to child sex trafficking, despite the fact that there are no sex trafficking charges in the case (let alone child sex trafficking):

U.S. District Judge Susan Brnovich said that the cumulative effect of the child sex trafficking references made by prosecutors in opening statements and by witnesses for the government “is something that I can’t overlook and will not overlook.”

Before the trial, the judge concluded she would allow evidence showing that people were trafficked using the site, but would not allow prosecutors to linger on the details of the abuse suffered by victims.

“It seemed the government abused that leeway,” Brnovich said. The judge said one government witness testified about being raped more than once, which raises a “whole new emotional response from people.”

This is the thing that always seems to happen with Backpage. People insist that if they just demonstrate some of the (very real and very terrible) examples of bad stuff that happened, in part, via the platform, they don't have to meet the burden of actually proving the crime at issue happened. We've seen that repeatedly -- including in the comments to our last post about Backpage and in years of coverage about the company. People highlight bad (really awful) stuff that happened because people abused the platform, and then assume they can just skip all of the important steps regarding pinning the liability on the company (and its founders).

It's depressing, if not surprising, that it was apparently the DOJ's plan to try the same strategy in court, and it's good to see the judge put a stop to it.

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Filed Under: doj, james larkin, michael lacey, mistrial
Companies: backpage


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  • icon
    That One Guy (profile), 15 Sep 2021 @ 1:29am

    Judge: 'Don't do X.'

    DOJ: Immediately does X.

    Judge: 'What did I just say?!'

    reply to this | link to this | view in chronology ]

    • icon
      XcOM987 (profile), 15 Sep 2021 @ 4:44am

      Re:

      How now we wait for the grandstanding about how the judge is an enabler of child sex trafficking

      reply to this | link to this | view in chronology ]

      • icon
        Upstream (profile), 15 Sep 2021 @ 5:31am

        Re: Re:

        Exactly! in places where judges are elected (either to the position or to retain the position) attack ads painting them as "soft on crime are still the order of the day.

        At least this judge had the backbone to make this decision, which was clearly needed, given the contents of the opening arguments. Hell, the DOJ lead off with pure mistrial material.

        reply to this | link to this | view in chronology ]

    • icon
      NotTheMomma (profile), 15 Sep 2021 @ 5:02am

      Re:

      Is it me or does this perfectly depict the DOJ as a toddler of 3 years?

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 16 Sep 2021 @ 6:10am

        Re: Re:

        "Is it me or does the last 20 years perfectly depict the DOJ as a toddler of 3 years?"

        Had to fix that for you.

        But yes, the US DoJ has spent quite a long time as a tantrum-throwing toddler refusing to grow up. You might think the Department Of Justice might every now and then cast a glance toward the spirit and letter of the law of the land...but not in america where they keep getting their view of justice from old Clint Eastwood movies where the anti-hero always rides off into the sunset after shooting all the bad guys.

        reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 15 Sep 2021 @ 5:04am

    Alternatively...

    from the fuck-around-and-find-out dept

    reply to this | link to this | view in chronology ]

  • icon
    wshuff (profile), 15 Sep 2021 @ 6:07am

    So using this playbook, all the horrible things that have happened on Facebook Live makes Zuck a criminal.

    reply to this | link to this | view in chronology ]

    • identicon
      TFG, 15 Sep 2021 @ 7:00am

      Re:

      Yes, people have argued that.

      reply to this | link to this | view in chronology ]

      • identicon
        Any Mouse, 15 Sep 2021 @ 1:14pm

        Re: Re:

        He's not a criminal for that...

        But the things he has done...

        Well, the Zuck has a lot to answer for.

        He might not have encouraged any ethnic cleansings, but he was told repeatedly that his platform was being used for such, and didn't even bother hiring moderators who could speak the languages used to coordinate the murders.

        There are ethnic cleansings going on right now that rely on Facebook, and there still are no moderators who speak the languages used.

        Zuck will take money from the world, but if it isn't the US he doesn't care, and if it is the US he breaks his own platform's rules to keep sites like Infowars and Breitbart from being banned for their blatant lies.

        reply to this | link to this | view in chronology ]

  • icon
    n00bdragon (profile), 15 Sep 2021 @ 6:37am

    Does it even matter at this point? The threats against Backpage have always been procedural. I think it's been very clear since day one that the government had no real case and this is all simply a demonstration of how hard the process can be used as the punishment.

    reply to this | link to this | view in chronology ]

    • identicon
      James T, 15 Sep 2021 @ 6:42am

      Re:

      It's matters for the people on trial.

      reply to this | link to this | view in chronology ]

      • icon
        n00bdragon (profile), 15 Sep 2021 @ 8:42am

        Re: Re:

        Does it though? Does it REALLY matter? What's the practical difference between spending the rest of your life in jail, having all your assets seized, your reputation dragged through the mud for decades and spending the rest of your life in jail, having all your assets seized, and your reputation dragged through the mud for decades? I apologize if that last sentence left you cross-eyed but that's very much the point.

        reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 15 Sep 2021 @ 10:32am

          Re: Re: Re:

          The government may not file charges deciding that they can't make a case with the judge's restrictions.

          In a trial over the crime supposedly committed by backpage execs, the details of the treatment of trafficked individuals doesn't speak to the crimes backpage might have committed but will poison the jury's ability to be a fact finding body by fueling negative emotional thinking.

          Your response here assumes a guilty verdict and sentencing that results in "spending the rest of your life in jail".

          If the result of the trial is assumed, the mistrial might not matter. But the result of the trial is not predetermined. As you admit when you claim "it's been very clear since day one that the government had no real case", they should not be convicted, and therefore should not be in jail for "the rest of [their] lives". The emotional arguments the DOJ was setting up could undermine that very conclusion. It is one of the ways the DOJ can stack the deck and make a bad case.

          It matters very much that the judge is shutting down that attempt.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 15 Sep 2021 @ 4:58pm

            Re: Re: Re: Re:

            I think they left out an 'or' with the point as I read it that even if Backpage's execs don't end up in jail the goal of the prosecution, the DOJ sticking to to them as a PR stunt/vindictiveness, will still have been achieved.

            What's the practical difference between spending the rest of your life in jail, having all your assets seized, your reputation dragged through the mud for decades and spending the rest of your life in jail, or having all your assets seized, and your reputation dragged through the mud for decades?

            Avoiding a prison sentence and/or ruinous fines is certainly nice, but if your business has been effectively killed and your reputation all but permanently tainted by the accusations that have been levied against you that's going to be a cold comfort.

            reply to this | link to this | view in chronology ]

            • icon
              James Burkhardt (profile), 16 Sep 2021 @ 8:36am

              Re: Re: Re: Re: Re:

              So the reason i would break it up as I did was this:

              What's the practical difference between spending the rest of your life in jail, having all your assets seized, your reputation dragged through the mud for decades and spending the rest of your life in jail, having all your assets seized, and your reputation dragged through the mud for decades?

              Could they have duplicated "spending the rest of your life in jail" and forgotten the "or" conjuction, completely changing their point? sure. but nothing in any of their replies suggests they made a mistake. The last line of the post, 'I apologize if that last sentence left you cross-eyed but that's very much the point." implies the opposite, that they intended there to be NO DIFFERENCE between the outcomes.

              reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 16 Sep 2021 @ 1:30pm

                Re: Re: Re: Re: Re: Re:

                Looks like I was the one who misread it, I completely missed the fact that the 'spending the rest of your life in jail' bit was indeed in both scenarios which doesn't make any sense and as you noted seems to have been deliberate. Good catch and my bad.

                reply to this | link to this | view in chronology ]

          • icon
            TKnarr (profile), 15 Sep 2021 @ 7:41pm

            Re: Re: Re: Re:

            I believe you missed the point: this is a criminal trial, and the government can keep the defendants jailed until the trial ends or the government drops the charges. All the government has to do is drag out the process and the defendants can be kept in jail indefinitely. So what's the difference between being jailed because you were convicted and being jailed because you haven't yet been acquitted?

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 15 Sep 2021 @ 10:57pm

              Re: Re: Re: Re: Re:

              Given they are all out on bail, they are in fact not in jail until the process is complete

              reply to this | link to this | view in chronology ]

              • icon
                James Burkhardt (profile), 16 Sep 2021 @ 8:28am

                Re: Re: Re: Re: Re: Re: Indefinine imprisonment

                The AC responce was me, but to make the point again, I am commenting on the backpage case, in which the defendants (the backpage executives) are out on bail and have been for years. They are not poor and can afford bail.

                They also have expensive lawyers who know what they are doing and a judge who already is unhappy with the DOJ's conduct would have been unlikely to accept continued imprisonment of the defendants after such misconduct. If there was another mistrial the judge likely wouldn't have allowed charges to be refiled (aka the judge could dismiss the case with prejudice). There are a few reasons I have seen this done, but the prosecution so prejudicing the defense that a new jury couldn't fix the issue anymore would be a relevant one.

                reply to this | link to this | view in chronology ]

    • identicon
      Pixelation, 15 Sep 2021 @ 7:26am

      Re:

      Exactly. They can't win the case on it's merits, so they need to win with juror outrage. Luckily, there is at least one judge that isn't a government crony. Nice to see.

      reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 15 Sep 2021 @ 6:52am

    Perception is everything. Just ask Trump. Of course, it's all about the perception of people who already agree with you, even if they're a minority--a violent minority.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Sep 2021 @ 8:42am

    People insist that if they just demonstrate some of the (very real and very terrible) examples of bad stuff that happened, in part, via the platform, they don't have to meet the burden of actually proving the crime at issue happened.

    Because that's all they have for a narrative - insist that something happened and a response is merited, a burden of proof be damned. Which is why CSAM is such a hot topic for copyright law, and law enforcement in general. Proponents believe that all they need is to vaguely allude to the fact it exists and that counts as a universal "Open Sesame" to demand what they want. Without actually solving the problem they think is there.

    reply to this | link to this | view in chronology ]

  • icon
    Slow Joe Crow (profile), 15 Sep 2021 @ 9:23am

    Mistrial is too lenient

    For the amount of BS being flung around the judge should have started with an Order to Show Cause and moved straight on to dismissal with prejudice, sanctions and Bar disciplinary referrals.

    reply to this | link to this | view in chronology ]

    • icon
      Upstream (profile), 15 Sep 2021 @ 9:36am

      Re: Mistrial is too lenient

      Mistrial is almost always too lenient, particularly when it comes to clear, intentional prosecutorial misconduct.

      dismissal with prejudice, sanctions and Bar disciplinary referrals.

      These should be standard procedure, and maybe add some big fines, too, so the taxpayers would have reason to be mad at the prosecutor(s), and might be motivated to find a new one.

      reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 15 Sep 2021 @ 10:11am

        Re: Re: Mistrial is too lenient

        so the taxpayers would have reason to be mad at the prosecutor(s), and might be motivated to find a new one.

        ...you...seem confused about how federal prosecutors are selected.

        reply to this | link to this | view in chronology ]

    • identicon
      Paul B, 15 Sep 2021 @ 11:39am

      Re: Mistrial is too lenient

      The judge cant really go directly to this step. A mistrial is something that cant really be appealed since courts like to enforce court power over the court process.

      Order to Show Cause and Dismissal allows appeals, Lots of appeals. The Gov has unlimited money and time to appeal, which drags this on forever and depending on the above courts, could force the case to continue based on things such as "We're the Government" and "For the kids!"

      This is the best our system allows.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 16 Sep 2021 @ 9:28am

        Re: Re: Mistrial is too lenient

        I think you are stetching when the logic is much more simple.

        A mistrial is declared in most jurisdictions when "....there occurs
        during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case".

        A judge could, and has, determined prosecutorial misconduct is so severe, has so prejudiced the defendant that no remedy could correct the defect and the charges could not be refiled. (destruction of exculpatory evidence is a reason I know I have seen this happen).

        A judge will prefer, as with a civil case, to allow the charges to be brought again at least once. If the judge keeps declaring a mistrial, the judge is unlikely to accept the continued wasted time on their docket and may dismiss the charges.

        You may see appeals, but most prosecutors will see the writing on the wall if that happens. And you would see appeals if the government lost. I agree Slow Joe Crow is definitely jumping the gun, but I don't think the reason the judge doesn't jump straight to that has anything to do with appeals. The judge doesn't care if there are appeals.

        Why the court doesn't just jump straight to punishing the prosecutor has more to do with what the court does normally when faced with prosecutorial misconduct. They assume the first time is a mistake. Perhaps a habit the judge should give some room to. But having had to restart the case once, the judge is unlikely to be as forgiving in the future. A question of appeals doesn't factor into it.

        reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 15 Sep 2021 @ 10:10am

    I wasn't expecting this to end with me saying "good on Brnovich," but here we are.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 15 Sep 2021 @ 11:00am

    So using this playbook, all the horrible things that have happened on Facebook Live makes Zuck a criminal.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 15 Sep 2021 @ 12:40pm

    I mean they destroyed the site, scared anyone else from starting anything remotely similar in the US, & tried to steal all the founders cash... now its just to have a show trial to waste more time & keep the base riled up instead of asking questions about how shitty the case is that they have to bring up things that they can't even charge the founders with.

    Precognition is a curse...
    I expected we'd see more of this behavior after the DOJ lawyer tried to tell the inauguration protest trial jury reasonable doubt wasn't that important.

    They can not make the case they brought and instead are just trying to get an emotional response verdict rather than following the rule of law. That thing thats supposed to represent justice in this country... perhaps we should be more concerned about what they are up to now that the mask has slipped.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Sep 2021 @ 12:51pm

    Of course they did....

    They weren't following proper procedures from the start so why start now?

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 15 Sep 2021 @ 1:18pm

    All the fun of a barrel full of (fill in the blank)

    So,
    Even after BP, stopped the adult sections.
    Even after they closed,
    BEFORE they were demanded to shutdown.
    Even while the police and officials were Using the service to monitor what was happening.
    (and some people werent getting PAID to leave it alone)
    They are going to prosecute, Even when the law was passed After the fact that the site wasnt even up.

    So,
    insted of facts relating to what happened While the site was active.
    They are going to state facts about the Full force and problem, that Probably never happened ON the site.
    After how many years of investigation? and all this time that either:
    Couldnt find anything
    Didnt investigate
    Filled int he blanks with Data that isnt/wasnt factual to what was going on, But could have.

    Anyone got a deck of cards? because the gov. is going to do the same, and Hold onto the court long enough for all of us to die and waste away, WAITING for them to come back.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 15 Sep 2021 @ 1:20pm

      Re: All the fun of a barrel full of (fill in the blank)

      And just in case BP comes back or ANOTHER site. they will have a contingency plan to 'Make it look like, it happened' and rip a hole in everything.
      (psst. they did this long ago with reg's for model speed boats in public areas)

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Sep 2021 @ 3:19pm

    So even though Backpage has been shown to have been very cooperative with law enforcement regarding sex trafficking, the DOJ is trying to send its founders to prison at any cost.

    The DOJ is clearly on a crusade against any kind of sex work, not just the nonconsensual kind. This strategy of calling sex trafficking victims to testify is an abuse of the justice system, and a political one at that.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 15 Sep 2021 @ 4:16pm

      Re:

      It's not just a stunt it's an incredibly stupid and counter-productive one at that, and one that shows just how much utter contempt those running the case have towards victims of sex trafficking or even sex workers as by dragging a platform that was actively helpful towards law enforcement over the coals like this they have ensured that no platform will be willing to offer similar help in the future lest they face the same treatment.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Sep 2021 @ 5:43pm

        Re: Re:

        Never do a devil's deal with the authorities, particularly when intellectual property interests are involved. They'll fuck you up even when you closely cooperate with them, all without using the law they begged for, and they'll get that law passed anyway. The similarities between Megupload/SOPA and Backpage/FOSTA are so staggering it's not even funny.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 16 Sep 2021 @ 3:06am

          Re: Re: Re:

          Whether they meant it or not, wanted it or not, that's certainly the lesson learned and message sent from cases like this, yes.

          'Work with law enforcement at your own risk because they will screw you over the second it's beneficial for them to do so and the fact that you were helping them before that point not only won't help you they might just use it against you.'

          It might work out fine for short-term PR gains but all they're doing is burning bridges and gutting any chance that companies and individuals will be willing to help them when they come asking in the future, making their jobs all the harder if not outright impossible when that day comes.

          reply to this | link to this | view in chronology ]

          • icon
            Upstream (profile), 16 Sep 2021 @ 4:18am

            Re: Re: Re: Re:

            all they're doing is burning bridges and gutting any chance that companies and individuals will be willing to help them when they come asking in the future, making their jobs all the harder if not outright impossible when that day comes.

            While I suppose there might be some drawbacks to this result, I think that it would be a net positive, and probably a large one, at that.

            reply to this | link to this | view in chronology ]

          • icon
            That Anonymous Coward (profile), 16 Sep 2021 @ 10:21am

            Re: Re: Re: Re:

            The problem is, its not the cops they were helping that screwed them.
            It was headline grabbing AG's (looks at the Judges husband) riding the insanity of 26 trillion underaged kids shipped in to the superb owl.
            Then some Congress critters just on the morality bus & despite not supposing to be politically motivated here we are.

            And their opening "evidence" is some child talking about how they were raped & pimped out, by someone not actually on trial for raping and pimping her out before this jury, but the guys who had a platform.
            The bank robbers drove a ford, so we're suing ford for theft.
            The bank robbers drove on a road, so we're suing the county that maintains it.
            The bank robbers hid out in a Residence Inn, so we're suing Marriott.

            Rather than looking at how these kids ended up in the hands on predators & punishing the predators... we're suing a platform for not doing 'enough', while not mentioning they went above & beyond what the law actually required them to do. That more efforts were put into gathering "evidence" from the site to show wrongdoing of the owners while ignoring the actual bad actors pimping out kids.
            We've got thousands of keywords they used to shield themselves & allow kids to keep being pimped out!!!
            How many pimps did you take down?
            How many kids did you rescue?
            Funny that number is so low... and many of them sort of fell into your lap rather than from investigations.

            reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 16 Sep 2021 @ 6:17am

          Re: Re: Re:

          "The similarities between Megupload/SOPA and Backpage/FOSTA are so staggering it's not even funny."

          I used to think the idea that law enforcement would deliberately create criminals or cooperate with gray-area service providers just to gather dirt on their "partners" wild conspiracy theory. Then the last twenty years of US law enforcement history happened and these days I just wonder to which extent that happens.

          I mean, is there a single member of the DoJ still focused on actual sex predators and traffickers or have they given that up as too cost-ineffective as compared to making headlines about the bad guys they conjure out of thin air?

          reply to this | link to this | view in chronology ]

          • icon
            That Anonymous Coward (profile), 16 Sep 2021 @ 10:10am

            Re: Re: Re: Re:

            Something something that weirdo TAC kept mentioning that the system has been "gameafied" to a point where if there is even a small chance they might not win they won't even try.

            If you invent your own cases you can move the narrative to hit all of the required parts for a 'win'. You get a headline, score some points, & they keep funding your department.

            Sex Predators & Traffickers?? You mean like that case against Congressman Bobblehead that's fallen really really silent despite evidence of payments & travel costs for underage girls?

            I mean I know in prison if the other inmates find out one touches little kids they met out their own brand of justice, in Congress they just let him keep on being a fscking moron & screaming conspiracy theories.

            reply to this | link to this | view in chronology ]


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