9th Circuit Proceeding With Backpage Execs’ Judge Recusal Demand

LOS ANGELES—As they face a federal criminal trial set for April on multiple charges of money laundering and facilitating prostitution, Backpage.com founders Michael Lacey and James Larkin have been demanding since September that judge in the case, Susan Brnovich, recuse herself. Brnovich refused, issuing a 14-page ruling defending herself in late October. But on Wednesday, the 9th Circuit United States Court of Appeals told the judge, in effect, “not so fast.” Lacey and Larkin have claimed in court filings that Brnovich cannot adjudicate their case fairly, because she is married to Arizona Attorney General Mark Brnovich, who has publicly attacked Backpage, and in 2018 published pamphlet accusing the site of “facilitating illegal prostitution,” one of the core charges against the Backpage founders. In a brief, one-paragraph order, 9th Circuit Chief Judge Sidney Thomas, and Judge Andrew Hurwitz, said that the concerns raised about Brnovich by Lacey and Larkin “warrant an answer.” The judges ordered federal prosecutors to file a response to Lacey and Larkin’s concerns by December 22.  Lawyers for the Backpage founders will then have another week to file their own reply to the prosecutors’ answer. After Brnovich — a 2018 Donald Trump appointee to the United States District Court for the District of Arizona — issued her ruling in which she refused to step down from the Backpage trial, lawyers for Lacey and Larkin filed a “writ of mandamus” with the 9th Circuit. That writ asked the higher court to order Brnovich to step aside in the case, despite her refusal to do so. The Wednesday order from Thomas and Hurwitz stopped short of granting that request. But the appellate judges left the door open to forcing Brnovich out, after they receive the filings from both parties. The order came after a hearing last Friday, December 4, in which Brnovich refused to put the Backpage case on hold until the 9th Circuit ruled on the request that she recuse herself. She told the defense lawyers that their recusal request had little chance of success. But five days later, the two 9th Circuit judges appeared to disagree. Brnovich also claimed in the Friday hearing that the case “was not about Backpage.”  Instead, she said that the case centered only on whether Lacey and Larkin had “specific knowledge” of illegal activities being “facilitated” by classified ads on the site. Am online haven for sex workers, the classified ad site was shut down by federal agents in April of 2018. Lacey, Larkin, and several lower-ranking executives were arrested at that time, and hit with a 93-count indictment. “I do not understand the distinction she’s making between the defendants and Backpage,” Lacey said, in a statement on his own site, Frontpage Confidential. “It seems as if, for the purposes of the prosecution, they are one and the same.” Photo By Coolcaesar / Wikimedia Commons