prosecutors in Backpage trial are throwing a bunch of sh**t at the wall to see what sticks

[dead0man]

Reason

The founders and several former executives of Backpage are set to stand trial this August, more than five years after being arrested for allegedly facilitating prostitution and nearly two years since a judge declared a mistrial over biased testimony and prosecutorial overreach. Throughout the prosecution, the government has engaged in questionable tactics that seek to limit the ability of those accused to defend themselves. And it seems federal prosecutors don't intend to stop attempting to abuse their power now.

In a series of motions filed yesterday, the government seeks to prevent the Backpage defendants' legal team from making basically any reasonable attempt to defend against the charges against them.

Most egregiously, prosecutors want to bar them from mentioning the First Amendment. But the First Amendment is at the center of this case, which revolves around user-generated ads posted to a digital classified-advertising platform. The very crux of the matter is online content and speech.

<snip>

In fact, another motion filed yesterday directly argues that the defendants should not be allowed to make declarations "about the legality or illegality of any advertisement, either charged or uncharged."

<snip>

And that's not all. In addition to the motions arguing that the Backpage defense team shouldn't be able to mention free speech or the potential legality of Backpage ads, the government yesterday filed seven other motions, each arguing that a different line of defense should be precluded.

One motion argues that the defense team shouldn't be allowed to reference Section 230 of the Communications Decency Act, the federal law that shields internet platforms and users from some liability for the speech of third parties.

Another motion says Lacey, Larkin, and the other executives shouldn't be able to defend themselves against accusations that they knew they were breaking the law by pointing out that Backpage lawyers repeatedly assured them they were not breaking the law.

<snip>

The government also wants to bar the defense team from commenting on the legitimacy of the prosecution and or any tactics employed by prosecutors; from referencing the 2021 trial that was declared a mistrial because of the government's conduct; or from mentioning previous legal cases where courts ruled in Backpage's favor.

And it says that references to Lacey and Larkin's previous First Amendment battle with former Maricopa County Sheriff Joe Arpaio (who was found guilty of retaliating against them for something they published in the Phoenix New Times paper); references to the defendants' families, to the defendants' personal lives, to Lacey and Larkin's extensive history in the journalism industry, or any other comment "on any facts or evidence or individuals that are not anticipated to be introduced into evidence at the trial" should not be allowed in opening or closing statements. In other words, the defendants may not attempt to humanize themselves.

prosecution is a lot easier if the defense isn't allowed to say anything that might get their client off, why have they never thought of this before?

[Torie]

Some of the above may be about barring arguing the law to the jury rather than the facts. The judge decides the law, e.g., the reach of the 1st amendment, and if wrong, it goes to appeal. 

[dead0man]

and all they got was another mistrial

After a dozen years of legal tussles, seven years in the crosshairs of ambitious prosecutors, and five-and-a-half years fighting a federal case that saw his business forcibly shuttered, his assets seized, and his longtime partner dead by suicide, alt-weekly newspaper impresario Michael Lacey was found guilty Thursday on just one of the 86 criminal charges levied against him in connection with the online advertising platform Backpage. But the government's fanatical pursuit of Lacey and his four other Backpage co-defendants is far from over.

Lacey, an award-winning investigative journalist, was found guilty of international concealment money laundering, which could land him in prison for up to 20 years, and not guilty of international promotional money laundering. But after a week of contentious deliberations, the jury could not come to agreement on the other 84 charges, prompting U.S. District Judge Diane Humetewa to declare a second mistrial in this case.

don't worry authoritarians that don't want anyone making money from sex, the Feds probably aren't done wasting tax dollars punishing the innocent

That means Lacey could face a third federal trial essentially for the crime of running a classified ads site that knowingly enabled and profited from illegal, if consensual, transactions involving sex.

Thanks to Section 230 of the 1996 Communications Decency Act, the speech and conduct of website consumers is considered to be the legal responsibility of the speakers themselves, not the owners of the platform. This has been a thorn in the side of politicians and other would-be censors ever since. In 2013, Kamala Harris and 46 other state attorneys general sent a joint letter to Congress urging a rollback of Section 230; the letter started like this: "Every day, children in the United States are sold for sex. In instance after instance, state and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com."

Seven weeks before her election to the U.S. Senate, Harris, along with her Texas counterpart Ken Paxton, brought the first criminal case against Lacey, his partner Jim Larkin, and other executives at Backpage, who were paraded in a Sacramento courtroom cage wearing orange jumpsuits. That case was tossed out by a judge who pointed out: "Congress did not wish to hold liable online publishers for the action of publishing third party speech….It is for Congress, not this court, to revisit."

But just three days before leaving the A.G.'s office for the Senate, Harris filed yet another Backpage case, which was yet again thrown out (partially) because of Section 230. Once in Congress, Harris helped push through the Fight Online Sex Trafficking Act, or FOSTA, which does peel back Section 230 to make websites liable for the "facilitation" or "promotion" of prostitution by their users, even though prostitution itself is not a federal crime.

[For We Are Not Yet, We Are Only Becoming]

and all they got was another mistrial

After a dozen years of legal tussles, seven years in the crosshairs of ambitious prosecutors, and five-and-a-half years fighting a federal case that saw his business forcibly shuttered, his assets seized, and his longtime partner dead by suicide, alt-weekly newspaper impresario Michael Lacey was found guilty Thursday on just one of the 86 criminal charges levied against him in connection with the online advertising platform Backpage. But the government's fanatical pursuit of Lacey and his four other Backpage co-defendants is far from over.

Lacey, an award-winning investigative journalist, was found guilty of international concealment money laundering, which could land him in prison for up to 20 years, and not guilty of international promotional money laundering. But after a week of contentious deliberations, the jury could not come to agreement on the other 84 charges, prompting U.S. District Judge Diane Humetewa to declare a second mistrial in this case.

don't worry authoritarians that don't want anyone making money from sex, the Feds probably aren't done wasting tax dollars punishing the innocent

That means Lacey could face a third federal trial essentially for the crime of running a classified ads site that knowingly enabled and profited from illegal, if consensual, transactions involving sex.

Thanks to Section 230 of the 1996 Communications Decency Act, the speech and conduct of website consumers is considered to be the legal responsibility of the speakers themselves, not the owners of the platform. This has been a thorn in the side of politicians and other would-be censors ever since. In 2013, Kamala Harris and 46 other state attorneys general sent a joint letter to Congress urging a rollback of Section 230; the letter started like this: "Every day, children in the United States are sold for sex. In instance after instance, state and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com."

Seven weeks before her election to the U.S. Senate, Harris, along with her Texas counterpart Ken Paxton, brought the first criminal case against Lacey, his partner Jim Larkin, and other executives at Backpage, who were paraded in a Sacramento courtroom cage wearing orange jumpsuits. That case was tossed out by a judge who pointed out: "Congress did not wish to hold liable online publishers for the action of publishing third party speech….It is for Congress, not this court, to revisit."

But just three days before leaving the A.G.'s office for the Senate, Harris filed yet another Backpage case, which was yet again thrown out (partially) because of Section 230. Once in Congress, Harris helped push through the Fight Online Sex Trafficking Act, or FOSTA, which does peel back Section 230 to make websites liable for the "facilitation" or "promotion" of prostitution by their users, even though prostitution itself is not a federal crime.

At this point it's probably just an ego thing from prosecutors and the sunk cost fallacy.

But guess what? Shutting down Backpage accomplished nothing. Now all the same ads (most from consensual adult sex workers) are just getting posted on a host of other sites hosted overseas and thus can't be reasoned with in the rare cases where ads for minors and/or trafficking victims are published. Backpage I'd informed would pull these and cooperate with investigations, the new sites are completely unaccountable. Even some police departments have admitted going after legitimate sex trafficking and underage prostitution is much more difficult now post-Backpage and Craigslist hosting such ads. They made it very marginally more inconvenient for consensual adult sex workers to operate and for their clients to find them and significantly more difficult to fight actual trafficking and child prostitution and still are calling it a victory.

[Taylor Swift Boat Veterans for Truth]

many such cases

[○∙◄☻¥tπ[╪AV┼cVê└]

So many crooked businessmen and the feds waste time going after these guys.

[Antonio V]

On what basis can prosecutors file motions restraining what the defense says? Outside of like, intimidating witnesses and stuff like that.

[Taylor Swift Boat Veterans for Truth]

On what basis can prosecutors file motions restraining what the defense says? Outside of like, intimidating witnesses and stuff like that.

You file a motion in limine in advance of trial to ensure the jury doesn't hear information that is unduly prejudicial, irrelevant, likely to confuse the jury, wasting time, etc. For example, the United States has filed a lot of motions in limine to prevent defendants in January 6 cases from arguing to the jury that their conduct was protected by the First Amendment, that they were being selectively prosecuted for their political views, that they were entrapped into entering the Capitol, or that the jury should nullify. These are all irrelevant to whether or not the defendants in those cases committed a crime, and letting them go and spend several days of trial putting on testimony about how the Biden regime is persecuting its political opponents would confuse the issues, waste a lot of time, and unfairly prejudice the jury against the prosecution.

[Antonio V]

For example, the United States has filed a lot of motions in limine to prevent defendants in January 6 cases from arguing to the jury that their conduct was protected by the First Amendment, that they were being selectively prosecuted for their political views, that they were entrapped into entering the Capitol, or that the jury should nullify. These are all irrelevant to whether or not the defendants in those cases committed a crime

Point is well taken, but aside from the last one (which, yes, is deliberately inciting the jury to abdicate their legal responsibility and shouldn't be allowed), the latter questions are relevant to the facts being tried. I don't see why a January 6 defendant can't argue that their acts were covered by the First Amendment. Of course they would need to make valid arguments to that effect, which of course they can't because that's a preposterous claim, but they should still be allowed to try.

[Taylor Swift Boat Veterans for Truth]

For example, the United States has filed a lot of motions in limine to prevent defendants in January 6 cases from arguing to the jury that their conduct was protected by the First Amendment, that they were being selectively prosecuted for their political views, that they were entrapped into entering the Capitol, or that the jury should nullify. These are all irrelevant to whether or not the defendants in those cases committed a crime

Point is well taken, but aside from the last one (which, yes, is deliberately inciting the jury to abdicate their legal responsibility and shouldn't be allowed), the latter questions are relevant to the facts being tried. I don't see why a January 6 defendant can't argue that their acts were covered by the First Amendment. Of course they would need to make valid arguments to that effect, which of course they can't because that's a preposterous claim, but they should still be allowed to try.

No, they're not. The purpose of a jury is to determine the events as they happened and whether that amounts to guilt or innocence based on the instructions delievered by the judge. Whether the First Amendment grants you a right to storm the Capitol is irrelevant to whether or not you did it, and presenting evidence about the First Amendment does not make it more or less likely that you met any of the elements of the crime you're being charged with. Selective prosecution is likewise totally independent of whether or not the defendant actually committed the crime. These are all just issues that distract from the issues at trial; they can be presented to the judge in a pretrial motion, but not to the jury.

[Antonio V]

For example, the United States has filed a lot of motions in limine to prevent defendants in January 6 cases from arguing to the jury that their conduct was protected by the First Amendment, that they were being selectively prosecuted for their political views, that they were entrapped into entering the Capitol, or that the jury should nullify. These are all irrelevant to whether or not the defendants in those cases committed a crime

Point is well taken, but aside from the last one (which, yes, is deliberately inciting the jury to abdicate their legal responsibility and shouldn't be allowed), the latter questions are relevant to the facts being tried. I don't see why a January 6 defendant can't argue that their acts were covered by the First Amendment. Of course they would need to make valid arguments to that effect, which of course they can't because that's a preposterous claim, but they should still be allowed to try.

No, they're not. The purpose of a jury is to determine the events as they happened and whether that amounts to guilt or innocence based on the instructions delievered by the judge. Whether the First Amendment grants you a right to storm the Capitol is irrelevant to whether or not you did it, and presenting evidence about the First Amendment does not make it more or less likely that you met any of the elements of the crime you're being charged with. Selective prosecution is likewise totally independent of whether or not the defendant actually committed the crime. These are all just issues that distract from the issues at trial; they can be presented to the judge in a pretrial motion, but not to the jury.

If the First Amendment grants you a right to storm the Capitol, then it necessarily follows that storming the Capitol cannot be a crime under the US Constitution. Surely that's the whole point of the First Amendment, no? In such circumstances, then, even if it were established beyond a reasonable doubt that a person did storm the Capitol, a jury could not possibly convict them for it. Therefore the First Amendment question is directly relevant to the case.

Selective prosecution is a bit more tricky, but I still find it hard to believe it could categorically never be relevant to ascertaining guilt or innocence. Clearly if prosecutorial bias is demonstrated, it would tend to cast doubt onto the accusations and militate toward acquittal, at least in some cases.

[YPestis25]

For example, the United States has filed a lot of motions in limine to prevent defendants in January 6 cases from arguing to the jury that their conduct was protected by the First Amendment, that they were being selectively prosecuted for their political views, that they were entrapped into entering the Capitol, or that the jury should nullify. These are all irrelevant to whether or not the defendants in those cases committed a crime

Point is well taken, but aside from the last one (which, yes, is deliberately inciting the jury to abdicate their legal responsibility and shouldn't be allowed), the latter questions are relevant to the facts being tried. I don't see why a January 6 defendant can't argue that their acts were covered by the First Amendment. Of course they would need to make valid arguments to that effect, which of course they can't because that's a preposterous claim, but they should still be allowed to try.

No, they're not. The purpose of a jury is to determine the events as they happened and whether that amounts to guilt or innocence based on the instructions delievered by the judge. Whether the First Amendment grants you a right to storm the Capitol is irrelevant to whether or not you did it, and presenting evidence about the First Amendment does not make it more or less likely that you met any of the elements of the crime you're being charged with. Selective prosecution is likewise totally independent of whether or not the defendant actually committed the crime. These are all just issues that distract from the issues at trial; they can be presented to the judge in a pretrial motion, but not to the jury.

If the First Amendment grants you a right to storm the Capitol, then it necessarily follows that storming the Capitol cannot be a crime under the US Constitution. Surely that's the whole point of the First Amendment, no? In such circumstances, then, even if it were established beyond a reasonable doubt that a person did storm the Capitol, a jury could not possibly convict them for it. Therefore the First Amendment question is directly relevant to the case.

Selective prosecution is a bit more tricky, but I still find it hard to believe it could categorically never be relevant to ascertaining guilt or innocence. Clearly if prosecutorial bias is demonstrated, it would tend to cast doubt onto the accusations and militate toward acquittal, at least in some cases.

Yes, but it is not relevant to the jury. You can certainly make an argument that the conviction is a violation of the First Amendment, but that is for the judge and not the jury to decide.

[Antonio V]

Yes, but it is not relevant to the jury. You can certainly make an argument that the conviction is a violation of the First Amendment, but that is for the judge and not the jury to decide.

Fair enough, I'm not familiar with the US judicial process so I don't know exactly what specific competencies fall on the jury and what fall on the judge. But whether a judge or a jury, someone should have to actually hear the argument.