Biased Testimony in Backpage Case Triggers Mistrial

Judge said she has concerns that the government crossed the line several times.


UPDATE: U.S. District Judge Susan Brnovich has granted the defense's motion for a mistrial. "I, at the beginning of this, gave the government some leeway, because child sex trafficking, sex trafficking, are forms of prostitution," she said in court this morning. "Yet, in the [government's] opening and with every witness thereafter, it seems, the government has abused that leeway."

The government's goal with prosecution is "not to win at any cost" but to "win by the rules, to see that justice is done," Brnovich pointed out. "If the government can prove that the defendants … knowingly facilitated prostitution, then they will be punished. But it should be done correctly."

In her view, that hasn't happened. The opening statement from federal prosecutor Reggie Jones "was close to causing mistrial," she said. Then, despite agreeing "to minimize the focus on child sex trafficking" from then on out, the government continued to harp on it. And despite being told that witnesses could only talk about Backpage's general reputation if it was tied to communication with specific defendants in this case, government witnesses like Sharon Cooper "talked about the reputation of Backpage untethered from communications with the defendants," Brnovich pointed out.

"Although I don't see any of these as intentional misconduct, the cumulative effect of all of that is something that I can't overlook and won't overlook," Brnovich concluded. "So, the motion for mistrial is granted. I will call the jury in to dismiss them and then we will set a date a couple weeks out to talk about when we can reconvene."

On Monday, jurors in a trial concerning whether former Backpage executives knowingly facilitated prostitution heard hours of biased testimony from an "expert" witness who has worked closely with law enforcement for decades. Again and again, Sharon Cooper—a self-described "developmental and forensic pediatrician" and a witness for the prosecution—conflated all sex work with sex trafficking and waxed on at length about child sexual exploitation, despite none of the defendants being indicted for trafficking or child-related crimes. (For a play-by-play of her testimony, check out this Twitter thread.)

Presented as an expert on online ads for commercial sex, Cooper made a bevy of dubious claims about the language in such ads, describing all sorts of terms used by adult sex workers as evidence of sexual victimization and child sex trafficking. For instance, Cooper suggested that the phrase "100% independent"—used by escorts to denote that they're not affiliated with an agency—was language meant to trick "buyers" into thinking they weren't patronizing trafficking victims. At another point, Cooper claimed "wifey" means "a female who is under the control of a male trafficker."

Meanwhile, the prosecution plied Cooper with question after question of uncertain relevance to the case at hand, in which six defendants are charged with facilitating prostitution in violation of the federal Travel Act and conspiracy and money laundering related to this alleged facilitation. Many were sustained, and many were overruled—but only after jurors heard intimation after intimation about child sex trafficking.

Toward the end of her testimony, Cooper—also a purveyor of dubious and disproven "science" about pornography—admitted that she doesn't personally distinguish between consensual sex work and activities involving force, coercion, and minors.

"I don't refer to it as sex work, I refer to it as sexual exploitation," Cooper said when asked a question about sex work by one of the defense lawyers.

Once again, defense lawyers wound up asking U.S. District Judge Susan Brnovich to declare a mistrial, citing biased testimony from Cooper and others since witness testimony began last Wednesday. (Defense lawyers also asked for a mistrial after opening statements from federal prosecutor Reggie Jones. This was denied last week, as was the defense's suggestion that Jones' accusations had opened the door to allowing the introduction of prosecutor memos—published by Reason—which are not allowed to be brought up at trial.)

"This case has gotten dramatically off the rails," one lawyer for the defense told Judge Brnovich in a conference while jurors were out of the room on Monday.

"We've got all these broad-based statements about prostitution and trafficking—and trafficking, of course, is as inflammatory as all get out," he said. "I just don't understand how this jury is every going to evaluate whether these guys had specific intent on any of the counts or things charged in the indictment, when they're day after day after day just hearing 'Backpage had prostitution, Backpage had child trafficking,' from people who don't identify the particulars and/or tie it to any defendant."

Brnovich said she could "envision from the evidence already seen" where the government might get to that, so it was "way too early" to make that argument about the prosecution's case as a whole. But Brnovich said she was considering "the argument about the prejudicial value of the testimony that's been given so far."

Last week, jurors heard testimony from a mother-daughter duo about how the girl appeared in Backpage ads—some posted by herself, others by a series of exploitative pimps—when she was 15 and 16 years old and a runaway from home. The girl admitted she had to say she was an adult to post the ads. She also said she was arrested by police in a prostitution sting, told the cops that she was 18, and was let go. After another sting, however, the girl was determined to be underage and returned to her family. One of the adults who exploited her was convicted. None of the ads or actions involved in these incidents are part of the current indictment against Backpage defendants.

Jurors last week and yesterday also heard from Special Agent Brian Fichtner of the California Department of Justice. Fichtner had helped Kamala Harris, then–attorney general of California, bring twice-dismissed charges against Backpage founders Michael Lacey and James Larkin (two of the defendants currently on trial) and former CEO Carl Ferrer back in 2016.

On Monday, defense lawyer Joy Bertrand said that testimony so far had made clear that the government was "going to run up to that line and step over that line every time they can to get in children, children, children.…This is their focus. And they've been told repeatedly by this court to knock it off, and they just keep doing it."

Prosecutor Reggie Jones countered by arguing that "sex trafficking is a subset of prostitution" and thus the testimony so far was relevant to the facilitating prostitution charge. "The government does not believe it is beating a dead horse, we are simply bringing in relevant evidence," he said. "We do not believe the defendants have been prejudiced against."

Brnovich told Jones she did "have concerns that the government has crossed that line several times, even after at sidebar I warned you not to do it," and that there was "some validity to the argument that the cumulative effect" of all the child sex trafficking references would bias the jury. Brnovich added that she had concerns "that the testimony elicited from the victims went beyond what it should have" and that Cooper's testimony "went well beyond what we had talked about prior to her testifying."

Brnovich said she would take a look at transcripts from testimony and offer a decision on Tuesday morning about the defense's concerns.

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    3. Probably not. These particular defendants could have pled out years ago. The fact that they didn’t is highly relevant to the current aggressiveness of the prosecution.

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  2. “told the cops that she was 18, and was let go.”

    So the cops were arrested for facilitating sex trafficking?

    1. Lard of shit speaks the leftist lingo

    2. After she provided them with “favors”, probably.

  3. Brnovich told Jones she did “have concerns that the government has crossed that line several times, even after at sidebar I warned you not to do it,” and that there was “some validity to the argument that the cumulative effect” of all the child sex trafficking references would bias the jury.

    Wow! That judge sounds really pissed! If the government keeps doing illegal shit like this, the judge may even be forced to write a sternly-worded letter!

    1. Jesus Christ, what a wimp of a federal judge. You have ‘concerns?’ If you told the AUSA to knock it off already, and they kept doing it, where in the hell is your contempt order? Or a threatened mistrial? Orders to strike from the record and directives to the jury to disregard? Why wasn’t this all hashed out pre-trial with in limine motions?

      Can’t anybody control their courtroom anymore? McBryde, Kent, Hittner: none of these current or former federal judges would have put up with a tenth of this.

      1. Declare a mistrial, and if it happens again, dismiss it with prejudice.

        1. Looks like the judge reads the comments.

          1. Wow!

            Let’s try another one – Kick Biden out via the 25th Amendment.

            1. Go big or go home – Declare all taxation theft!

              1. at least repeal 16 & 17

                1. Every amendment after the 15th; and all federal legislation since 1900.

                  1. Even the Freedom Fries resolution?

                    1. Sometimes you have to throw out the baby to get the tub clean.

        2. Jury’s empaneled. Jeopardy’s attached. If mistrial is due to the prosecution’s malfeasance, I’d thought that was a dismissal with prejudice. At least for that sovereign.

      2. Its almost like the fix is in and she’s trying really hard to ignore the prosecutor’s bad behavior to get the result they want.

    2. Her husband is the AG of Arizona and has been beating the child sex trafficking horse there. No way his wife is going to give his opponent campaign ad material by cutting this stupid prosecution off at the knees.

      1. How is that allowed? How is that not a massive conflict of interest? Whether they meet in the courtroom or not judges and attorneys have no business getting married. I would go so far as to say that no active officer of a court should be allowed to be active while married to another officer of any court.

        This is just so bad.

        1. It isn’t who is in bed with whom. It is that this matter (censorship of the press) has no business in front of a judge or jury.

  4. Wasn’t this one of those balls that Kamala got rolling?

    1. I believe Kamala had a lot to do with it – probably professional jealousy when she found out how much more some of these women were making than she had been paid.

      1. She got paid a political career that led to her being President. I don’t think she’s jealous of their pay.

      2. I don’t know. A lot of politicians would blow their way to the vice-presidency for free if they could.

    2. Yes, after previously working with Backpage to try and catch child sex traffickers. When the political winds shifted, she turned on them. Reason actually did a lot of reporting on this during the last election cycle.

  5. Hi, I’m Chris Hansen.

    1. Yeah, well, find your own boy. I was here first.

      1. If Buttplug got caught by Hansen, would he offer to split the kid with him?

  6. The founders of backpage committed the egregious crime of donating money to kamals political rival, and for that they should burn

  7. It would be funny if they treated the Cho in trial with as much skepticism

  8. womyn stealing agency from women is ludicrously tragic.

    1. Womyn hate women, because only by becoming exactly like men can they achieve equality. Women who insist on remaining women are reactionaries holding womyn back.

      1. Womyn hate women
        If you don’t believe me ask your wife. The list of psychotic bitches that fucked her over cannot be counted on both hands plus the toes. The list of asshole men that fucked her over will be a fraction of that total.

  9. The government’s goal with prosecution is to generate as much outrage as possible to increase democratic campaign donations.

  10. The Obama administration raided medical marijuana facilities in California hundreds of times during his first term, and we’re no further along the process of legalizing the facilitation of adult prostitution now than we were when Obama was raiding medical marijuana facilities. In fact, we’re probably behind that spot on the curve.

    Marijuana activists tried to make cannabis distribution legal through various legal challenges, as well, but ultimately, it took a grass roots movement to get the voters wiling to flout the law at the state level before things started to change. You need to find ways to change the minds of average people on prostitution before we see substantial change.

    And I don’t think the progressive strategy of trying to control the Overton window is likely to have the intended effect on average people. The arguments for legalizing marijuana about legalization helping to keep it out of the hands of children rang true because it was true. And if legalizing prostitution allowing websites to advertise it is really a good way to keep minors out of the business, then give up on the trying to change people’s minds with legal chicanery and focus on that.

    Being persuasive means being honest with people. We could start with a few observations.

    1) Even if knowingly running ads for prostitution shouldn’t be a crime, that doesn’t mean facilitating isn’t a crime or that this wasn’t facilitating.

    2) Even if these defendants weren’t guilty of knowingly facilitating the sex trafficking of minors, that doesn’t mean they weren’t knowingly facilitating adult prostitution.

    3) Even if these defendants aren’t ultimately convicted of any crime, that doesn’t mean sites like Backpage can go back up and start doing business as usual again.

    1. There is approximately zero support among progressives for legalizing prostitution and that will not change as long as women are the dominant group.

      1. @Gaear, can you expand on why women being the dominant group is an issue.

  11. While it’s nice to see the mistrial declared, it would be nice to see the judge declare that since the prosecutors deliberately caused the mistrial the prosecutors are going to have some shit coming their way. If there’s no consequences for their bad behavior, what’s to dissuade them from continuing their bad behavior? It pisses me off that there are probably just as many dirty judges and dirty prosecutors as there are dirty cops, but you almost never hear of a judge or a prosecutor being disciplined for even the most egregious of miscarriages of justice.

    1. The only example I can think of is Mary Kellett, the Maine prosecutor who spent years railroading an innocent man on sexual assault charges. She was eventually sanctioned for prosecutorial misconduct, but it only amounted to a 30 day suspension of her license and a requirement to attend ethics training.

      1. Mike Nifong in NC. He made the mistake of trying to frame some rich frat boys for rape. Only problem was their fathers were all big shot corporate attorneys in Manhattan.

    2. I’m not sure if the prosecution cares deeply about winning the trial. The process is very much the punishment.

    3. I have to agree. the only punishment is that they wasted time. Police and prosecutor malfeasance that is barely more than contempt or perjury (or in many cases is perjury) is routinely not even given a slap on the wrist. It seems that unless they decide you are a political threat, the feds can do no wrong.

      1. It is not perjury. Lawyers are not under oath.
        If they were they would have to keep their mouths shut.

  12. “Although I don’t see any of these as intentional misconduct, the cumulative effect of all of that is something that I can’t overlook and won’t overlook,” Brnovich concluded.

    Unintentional my ass. This prosecutor has been working the case for years. Every statement is scripted. Dismiss with prejudice or you’re in on the fix.

  13. If nobody gets disbarred, or at least put on probation (preferably of the Double Secret variety) they they still won just by forcing the defendants to go to trial.

  14. The next logical step is to put these prosecutors and this Cooper, uh, person on trial, a quick conviction, then plenty of jail time. Abuse of authority is a crime and needs to be treated as such.

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  16. This reminds me of the 2002 trial of David Westerfield for the kidnap and murder of 7-year-old neighbor Danielle van Dam.

    There was no evidence she had been sexually assaulted; nevertheless the prosecution assumed that sex was the motive for the crimes.

    The evidence against him was weak. So to obtain a conviction, and knowing the revulsion that people have towards sex crimes against children in particular, they claimed that the porn on his computer included some child porn. Some members of law enforcement had examined his images and declared it wasn’t child porn, so the prosecution objected to expert testimony on this issue, and as a result, this contrary evidence was never heard. The prosecution guessed they wouldn’t get a conviction under a child porn statute, so they instead charged him under a statute that is so broad that, as the prosecution openly stated, even an image of someone who was fully dressed could be deemed illegal.

    In this case, and contrary to the Backpage case, the judge sided with the prosecution, so they obtained their conviction – a conviction which, based on the evidence, was not justified, and Westerfield was convicted and sentenced to death, and has been on death row ever since.

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