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Attorneys for two Backpage executives facing federal charges that accuse them of using the website to facilitate prostitution have asked the judge in the case, Susan Brnovich, to recuse herself because of opinions expressed by her husband, Mark Brnovich, the Arizona attorney general.

In the motion filed Wednesday by attorneys for James Larkin, who with co-defendant Michael Lacey also used to run the Phoenix alternative weekly, New Times, said they only recently learned of Mark Brnovich’s public stances against sex trafficking and Backpage.

The motion cites a booklet published by the Attorney General’s Office in June 2018. The booklet, “Human Trafficking: Arizona’s Not Buying It,” contains a letter from Attorney General Brnovich in which he calls sex trafficking “more than just a crime, it is a profound tragedy for all of those who fall victim.”

The 2018 pamphlet also says some sex trafficking was taking place on Backpage.com, describing the classified advertising website as being “used frequently to purchase sex.”

Those statements, the motion argues, would cause a reasonable person to wonder whether Judge Susan Brnovich’s rulings would be impartial.

“Recusal is not warranted simply because the Court’s spouse is the Attorney General, or even because the Court’s spouse has made statements about the misuse of the internet, but because he has inserted himself into the mix in this case,” the motion reads.

A spokesperson for Attorney General Brnovich did not immediately respond to a request for comment.

Attorneys for Larkin, who filed the motion on behalf of Lacey and the other former Backpage employees, also didn’t respond to requests for comment.

Susan and Mark Brnovich have been married for 23 years.

Lacey and Larkin were arrested in March 2018 and charged with intentionally using Backpage as a forum where sexual encounters could be sold. Prosecutors, using emails among Backpage employees, charged that the website coached pimps on how to place ads in order to avoid scrutiny. Employees also moderated ads, according to court documents, in order to strip out certain words they thought would be flagged by law enforcement authorities.

State officials have attempted to criminally charge Backpage for its ads. But the website evaded prosecution by citing the federal Communications Decency Act, which protected websites from liability for writings created by others. It was the reason that, for example, the restaurant review site Yelp could not face libel suits from restaurants over negative reviews posted by users.

But the federal charges accused Lacey, Larkin and others of not merely hosting the ads, but actively participating in a crime, something not protected by the Communications Decency Act.

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The case landed with Judge Brnovich, according to the motion, after two other judges recused themselves: one for an unknown reason, according to the motion, the other because of friendships with attorneys on both sides of the case.

Judge Brnovich was assigned the case in March 2019, about a year after charges were initially filed.

Judge Brnovich has held pretrial hearings, setting the stage for a jury trial currently scheduled for January.

In January, she criticized the government’s case against the Backpage executives, calling the indictment “poorly worded to say the least.” That hearing was over a motion filed by Lacey, Larkin and the others to dismiss the case entirely. Brnovich has yet to rule on that motion.

In April 2019, Brnovich denied a request from Lacey to remove a monitoring bracelet on his ankle. Lacey wanted the monitor removed because it wasn’t waterproof and he was headed on vacation to Hawaii. He also wanted to exercise and his preferred aerobic activity was swimming.

The motion asking Brnovich to recuse herself cites other examples of judges doing so because of familial relations. One was the recusal of Judge Mary Murguia from a federal civil rights case involving former Maricopa County Sheriff Joe Arpaio. At the time, Murguia’s twin sister, Janet Murguia, was the president and CEO of the National Council of La Raza, which had been highly critical of Arpaio.

Although Mark Brnovich has been an outspoken advocate against sex trafficking since January 2015, the month he took office, the motion said a member of Larkin’s defense team only discovered the anti-sex trafficking pamphlet this month.

That led to the defense team undertaking “further research” into Mark Brnovich’s statements about sex trafficking.

Accompanying the motion were 23 articles, news releases or tweets that Mark Brnovich had made about either sex trafficking or Backpage since 2015.

The Backpage executives are charged with facilitating prostitution, not sex trafficking, which legally involves proving someone was forced or coerced into the action. However, the motion argues that Attorney General Brnovich has adopted the language of anti-trafficking advocates who contend all street prostitution is essentially coerced sex.

“In short, he not only has made clear his views about the guilt of Defendants,” the motion reads, “but he also plainly is an advocate for Defendants’ adversaries.”

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