The judge presiding over the trial of Backpage.com founders Michael Lacey and James Larkin declared a mistrial on Tuesday, because the prosecution could not stop bringing up graphic and detailed accusations of child sex trafficking in a case where no charges involving sex trafficking exist.
Lacey and Larkin face federal charges of facilitating prostitution and money laundering.
U.S. District Judge Susan Brnovich ruled that repeated references to child sex trafficking from Department of Justice prosecutors and their witnesses triggered her decision.
Brnovich said before the trial began earlier this month that she would allow prosecutors to bring forward evidence of trafficking on the site, but would not allow them to go into detail of the abuse the victims experienced. “It seemed the government abused that leeway,” Brnovich said, according to the Associated Press—and that one witness' testimony about being raped more than once elicits “whole new emotional response from people.”
She said that the opening statement made by federal prosecutor Reggie Jones was almost enough to push the government into mistrial territory. In it, Jones "repeatedly threw around sex trafficking allegations, including the broad accusation that the defendants facilitated 'human trafficking' and allowed children to be 'sold for sex,'" according to Reason journalist Elizabeth Nolan Brown. "Twice, Jones showed jurors images of women whose teen daughters allegedly appeared in Backpage ads," Brown wrote. These ads and the women's families, though, had nothing to do with the case. Defense lawyers called for a mistrial.
On Monday, prosecutors called Sharon Cooper, a "developmental and forensic pediatrician" who spoke and speculated at length about trafficking on the site. When the defense asked her about sex work, she replied, "I don't refer to it as sex work, I refer to it as sexual exploitation."
The FBI seized Backpage.com in 2018, days before President Trump signed the Fight Online Sex Trafficking Act (FOSTA) into law. Proponents of FOSTA, including then-attorney general of California Kamala Harris, used narratives claiming Backpage facilitated trafficking as leverage to get FOSTA passed, but as it turned out, law enforcement hadn't needed a new law to use against Backpage at all. The shutdown of Backpage resulted in more financial precarity and exploitation for sex workers than ever, as did the implementation of FOSTA, according to sex workers themselves.
The seizure of Backpage also made it more difficult for law enforcement to find and help actual victims of trafficking. In memos published by Reason, two assistant U.S. attorneys for the Western District of Washington wrote that Backpage was "remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations," and FBI Agent Steve Vienneau called the company "very cooperative at removing these advertisements at law enforcement's request."