Just how corrupt can the government’s case against Backpage get? First, prosecutors tried to have the defendants’ longtime lawyers disqualified on dubious grounds (a judge said no). Then, they turned over to the defense secret memos that contradict their claims—and could help clear defendants of the charges in question—but the court ruled these memos inadmissible since the government hadn’t meant to let anyone see them. In addition, authorities seized from former staff assets that had nothing to do with the now-defunct classified advertising website, leaving them struggling to pay for lawyers to defend them against charges of facilitating prostitution and money laundering in the face of repeated trial postponements.
Now, the judge on the Backpage case is refusing to recuse herself despite a very clear conflict of interest.
Assigned to the case is U.S. District Judge Susan M. Brnovich—wife of Arizona Attorney General (A.G.) Mark Brnovich, who has repeatedly made public and prejudicial statements related to the case.
As one example, the defense points to a booklet put out by Brnovich and his office called “Human Trafficking: Arizona’s Not Buying It.” The booklet—published two months after the April 2018 arrest of Backpage founders Michael Lacey and James Larkin and others associated with the site—asserts that online ads and social media are the primary facilitators of child sex trafficking and specifically call out Backpage as a guilty party. It contains unfounded statistics about both sex trafficking and child abuse generally and Backpage specifically, while copiously citing and promoting groups whose leaders are on the U.S. government’s witness list against Backpage.
Brnovich’s website, webinars, and social media accounts also cite these government witness groups approvingly and make statements similar to those in the booklet. Currently, under the webinar section of his website, a presentation titled “human trafficking for parents” states that “Backpage.com is where the vast majority of all advertisements were posted for sex trafficking.”
In 2017, Brnovich signed on to a letter calling for Congress to change or abolish Section 230 of federal communications law so he and other state attorneys general could sue Backpage and other websites that run third-party content they don’t like. In it, Brnovich and the other attorneys general assert directly that Backpage is guilty of promoting child sex trafficking.
“Defendants are entitled to a case presided over by a judge whose impartiality cannot be reasonably questioned,” their September 23 motion for recusal states. “Defendants move Judge Brnovich to recuse herself from this matter on the grounds that…her spouse has interests that could be substantially affected by the outcome of this proceeding” and “her spouse’s interests, and public statements and actions, create an appearance of partiality.”
Both things are grounds for recusal under U.S. law.
“In my opinion, the court has a duty…to recuse,” wrote retired federal judge Vaughn R Walker in a statement to the court. Brnovich “has expressly targeted an entity with which these defendants are identified. This makes it impossible to dissociate the views of the Attorney General from the issues in this case,” stated Walker.
The trial—now slated for April 2021—will leave defendants’ fate to a jury, but Judge Brnovich has had and will continue to have significant influence on the outcome of the case through her rulings on various motions, including a motion for acquittal and motions regarding what testimony can be included or excluded.
For Judge Brnovich to rule a certain way on these motions would be to suggest her husband is a serial liar. It’s hard not to see how that could affect her decisions.
But the government’s response motion, submitted October 7, suggests it’s ridiculous to think a judge couldn’t rule impartially just because their spouse had repeatedly accused the defendants of the conduct they’re on trial for. “In the year 2020, it is anachronistic to suggest that a federal judge with 17 years of judicial experience is unable to preside impartially because of her husband’s views,” write U.S. prosecutors.
That’s simply not true, of course—in the year 2020, we (thankfully) haven’t yet become such a banana republic that judges aren’t generally expected to recuse themselves from cases in which their spouses, family members, or other close ties have a direct interest.
The government claims that A.G. Brnovich doesn’t really have an “interest” in this case because he doesn’t stand to directly gain or lose money from its outcome, nor does he own a private business which may be adversely financially affected by said outcome.
But presumably, Brnovich will not be Arizona’s top cop forever, and his future private business forays will be judged by his time and reputation as A.G. It’s also not unreasonable to think that his future as an elected Arizona official depends on his reputation, which could be affected by this case.
(“As long as [Judge Brnovich] put our heads on pikes, her husband would get to trumpet our conviction as a family affair in his next election,” writes Backpage co-defendant and veteran newspaper editor Lacey in a blog post this week.)
It’s certainly not unreasonable to suggest that Mark Brnovich’s reputation may take a hit if—after years of bashing Backpage, partnering with the government’s witnesses against Backpage on various initiatives, and putting out myriad public statements that turn on the core issues in this case—the Backpage crew is not only acquitted of the government’s allegations but his wife plays a role in that.
This isn’t to suggest that Judge Brnovich absolutely couldn’t or wouldn’t rule impartially. But even the suggestion of potential bias is enough to merit a recusal. Again and again (and again and again), federal courts have ruled that “the test for disqualification…is an objective one: whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.”
Based on this, the defendants argue that “it is irrelevant whether Judge Brnovich subjectively believes she is capable of impartially presiding over the case. If AG Brnovich has an interest and it could be substantially affected, Judge Brnovich must recuse, even if she believes she can be impartial.”
“The undisputed facts show AG Brnovich (and others acting on his behalf): have railed against the particular business at the core of this case (Backpage.com, LLC); have made public statements that reasonable people would conclude mean AG Brnovich believes Defendants are guilty of the crimes charged in this case; have directed the public to websites making similar claims and containing inflammatory and highly prejudicial statements about Backpage.com and Defendants; and have directly or indirectly vouched for the credibility of many of the government’s witnesses in this case,” they noted in a reply to the government’s response motion.
The government did not contest the idea that many of A.G. Brnovich’s statements were matters that the prosecution intended to bring up at trial and points which would be hotly debated. Rather, it suggested that because Brnovich’s position on Backpage has “been widely known to the internet-viewing public for years,” the defendants’ recent motions are too late and “should be afforded little weight.”
But the fact that a lot of people—including potential jurors—may have heard or seen the A.G. trashing the defendants for years seems like an argument for recusal, not against.
Perhaps the craziest part of all of this is that Judge Brnovich gets the final say in whether a reasonable person might find she has a potential conflict. Unsurprisingly, she said no—since her husband didn’t stand to make or lose any money from the outcome, there was no conflict of interest.
In an October 23 motion, Brnovich denied the defendants’ motion for recusal, writing that a “reasonable person apprised of the facts would not question the Court’s impartiality.”