Retrial of Backpage Execs Wouldn’t Be Double Jeopardy, Court Says

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Criminal Justice

Former Backpage executives could now face trial again in 2023, after the government’s first attempt resulted in a mistrial.

Elizabeth Nolan Brown |

Michael Lacey in 2017

(Hector Amezcua/ZUMA Press/Newscom)

The prosecution of Backpage founders Michael Lacey and James Larkin and several other former executives for the classified-ad company can continue to drag on, per a new ruling from the U.S. Court of Appeals for the 9th Circuit. The court said that trying them again after a mistrial was declared in their first trial would not count as double jeopardy.

“No one is the least surprised by 9th Circuit ruling,” Lacey tells Reason in an email. “We have always believed we must rely upon jurors, not judges, for a fair shake. And so to trial.”

Lacey, Larkin, and the other defendants are likely to face trial again in 2023, though no date has been set. That would mean a sixth calendar year in which their lives are upended by this prosecution.

(To this day, Lacey and Larkin are required to ask permission if they want to leave Maricopa County, Arizona, and must wear ankle monitors at all times. “They are a constant reminder of captivity,” says Lacey. “When they go off, they are loud and startle people in restaurants, super markets, retail outlets.”)

The Backpage execs were arrested back in April 2018 and charged with facilitating prostitution. After federal prosecutors pulled a bunch of questionable moves—and a judge ruled that exculpatory evidence accidentally sent to the defendants by federal prosecutors was inadmissible—the case finally went to trial in September 2021.

At that trial, prosecutors couldn’t stop talking about child sex trafficking—a crime the defendants in this case are not charged with—and U.S. District Judge Susan M. Brnovich declared a mistrial.

Lacey, Larkin, and the others then filed a motion to dismiss the case, arguing that putting them on trial again would amount to double jeopardy. A district judge dismissed that motion last December. They appealed.

Now, a three-judge panel from the 9th Circuit has weighed in. In a September 21 ruling, the 9th Circuit judges note that under Supreme Court precedent, the Constitution’s prohibition on double jeopardy only applies when a mistrial stems from prosecutorial conduct intended to goad defendants into moving for a mistrial. It does not apply if a mistrial was declared because of impermissible conduct intended to help the state win.

Lacey and Larkin had argued that prosecutors did want them to ask for a mistrial, as the first few days of the trial were not making the government’s case look good. The 9th Circuit judges rejected this argument, writing that “the government’s case-in-chief was still in its infancy” when the Backpage defendants asked for a mistrial.

“At minimum, the government still had a clear path to prevailing at trial” and “had no reason to sabotage its own trial,” the judges concluded, affirming the lower court judge’s denial of the motion to dismiss.

That means the federal prosecution of Lacey, Larkin, and the other Backpage executives—on pause as the motions related to double jeopardy were considered—can resume.

And U.S. taxpayers can continue footing the bill for this seemingly eternal attempt to put people in prison for running a website where sex workers advertised.

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