9th Circuit Denies Backpage Founders’ Bid to Remove Trial Judge

LOS ANGELES—Michael Lacey and James Larkin, the founders of Backpage.com who face trial later this year on multiple charges of money laundering and facilitating prostitution, suffered a new setback in their case this week. In a four-page opinion, a three judge panel of the United States Ninth Circuit Court of Appeals slapped down their bid to get the judge on their case thrown off.  Backpage, a classified advertising site widely used as an online safe space for sex workers to promote their services and screen clients, was shut down and seized by the federal government in April of 2018. Lacey and Larkin were arrested and hit with a 93-count indictment. They have been awaiting trial in Arizona ever since, with the date — after several postponements — now set for August 23. The presiding judge is Susan Brnovich, a 2018 Donald Trump appointee, who is the wife of Arizona’s Attorney General Mark Brnovich. Because Mark Brnovich has made several public statements appearing to link Backpage to “sex trafficking,” Lacey and Larkin last year petitioned to have Susan Brnovich removed from their case, due to what they said was her possible bias against them. But the judge refused to step aside, ruling that “the Court is an independent person from AG Brnovich, and the average person on the street would not reasonably believe that the Court would approach this case in a partial manner” due to her husband’s publicly stated opinions. Lacey and Larkin, however, appealed her decision to the Ninth Circuit, which agreed in December to take up the “writ of mandamus” demanding Judge Brnovich’s recusal.  But on Monday, the Ninth Circuit handed down its decision, and it was not a good one for the Backpage founders. In their ruling, the three Ninth Circuit judges — who did not sign their names to the opinion — said that Lacey and Larkin’s demand to get rid of the judge as a “drastic and extraordinary remedy” that could only be met if the lower court judge had made “a clear error” in her reasoning justifying her decision to remain on the case. Judge Brnovich has served on the case for about two years, after the first two judges assigned to the Backpage case recused themselves for personal reasons. The Ninth Circuit said that the Lacey-Larkin demand “flounders” when trying to point to a clear error made by Judge Brnovich. While the court cited four other factors that must also be met to allow a “writ of mandamus” to be granted, the ruling said that a writ will always be rejected even if it met the four other criteria but not the “clear error” standard. According to an Associated Press report on the ruling, an attorney for Lacey and Larkin did not respond to a request for comment on the Ninth Circuit denial. A spokesperson for Attorney General Brnovich, however, said he called it “abhorrent that the defendants in this case insinuate a woman can’t speak and think for herself.” Photo By Arizona PBS YouTube Screen Capture