The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (14 page)

.

Chapter 14

Heat wave

“S
he says she can say good morning and talk about the weather if you want to come in,” bailiff Brian Gilchrist said.

“Sure, I’d love to talk about the weather,” I said, squeezing past the landmass that was Gilchrist and into Circuit Judge Dedee Costello’s chambers.

The judge was seated at the head of a large rectangular table with an arched window behind her. The window looked out at a yellow brick wall and the glass was honeycombed with a black bulletproof web.

Costello smiled and launched in to the prior week’s heat wave.

“You been walking in this?” I asked. Costello and a friend walked for exercise every evening through the mossy, oak shaded Cove neighborhood that she shared with Federal Judge Richard Smoak and Federal Magistrate Larry Bodiford.

The summer of 2007 was late in coming on, not turning hot until very late in June. But by July, the temperatures were consistently in the 90s with enough humidity to make it feel like 100 degrees or worse.

“Yes. I walked last night and went to the gym this morning,” she said.

“The gym,” I said, my voice full of distaste.

“The gym is fun,” Costello said.

The small talk continued for a few minutes, both of us testing the patience of the other. Using pleasantries to gain an advantage or dictate the pace of a business conversation is a revered but often overlooked Southern trait.

I knew the conversation had to be a short one. The judge was indulging me, but I’d been bugging her for three weeks as I waited for a ruling on three motions to dismiss the remaining state charges against Joe Francis.

In March 2007, Aaron Dyer and Larry Simpson had filed three motions to dismiss the last felonies Francis was facing: two counts each of using and conspiring to use minors in a sexual performance.

The first two charges were second-degree felonies, carrying 15-year prison sentences. The second two were five-year felonies. Francis was still looking at 40 years in prison despite having almost 40 felonies thrown out.

The case, which once encompassed everything from racketeering to giving alcohol to minors, now boiled down to “the shower scene.”

Christina and Darlene were 17 when they’d climbed into a shower together while cameraman Mark Schmitz filmed them.

Francis was in another room, trying to talk two other underage girls into jerking him off. He ultimately paid them $50 each, and he still faced misdemeanor prostitution charges for that.

Dyer and Simpson argued that Francis had to know Christina’s and Darlene’s ages to be guilty of using a minor in a sexual performance. Criminal intent, they said, was an essential part of all Florida laws unless otherwise specified. There were certainly some charges where knowledge of age didn’t apply – for instance, what was once called statutory rape.

The same standard applied to the conspiracy charges – you can’t argue there was a conspiracy between Schmitz and Francis to videotape underage girls having sex unless they both knew the girls were underage. Otherwise, Dyer said, all Francis was guilty of was filming two girls naked like he’d legally done on hundreds of occasions. The only difference was this time the girls had lied about being 18.

Prosecutor Mark Graham countered with several motions, saying the law made exceptions to criminal intent to protect children. He also said if the judge found that intent was necessary, he’d be able to prove knowledge on two fronts: Francis knew or should have known the girls’ ages because he’d gotten in trouble before for filming underage girls and because he was talking to Christina’s and Darlene’s friends in the other room and they had surely confessed their ages.

The argument was set to be decided in June, but Graham filed a last minute reply and Judge Costello gave Simpson a week to respond in writing.

Then, for three weeks, Costello did nothing on the case.

Instead, she enjoyed some time off for Independence Day, had her granddaughter visit and did a little traveling.

Meanwhile, Francis was calling his lawyers endlessly trying to find out what was going on. This was a huge issue for him. If Costello dismissed the 2003 charges it would put in motion a series of events that would get him out of jail for the first time in months. He wanted that badly.

If the 2003 charges were gone, Costello would lift a detainer she’d placed on Francis holding him for transport back to Panama City if he made bond in Nevada. Costello would then issue a monetary bond for Francis on the contraband charges. Francis could then pay his bonds in Panama City and Nevada and be free.

How did I know that he was calling his lawyers? Because they were calling me almost every day asking if I’d heard anything.

“My client wants to talk to you,” Dyer said as soon as I answered the phone the afternoon of July 16.

“Well put him on,” I said cheerfully.

“I said no.”

“How come?”

“He thinks something’s going on between you and me because we’re talking so much. Not, you know, something sexual. Just that he thinks something’s up.”

This was a big change from the Joe Francis of the first five years of his criminal case. Dyer said in 2004 that Francis trusted him and allowed him to do his work.

“Well put him on. I’ll explain it to him.”

“Have you heard anything?”

“I talked to the judge this morning and she said she wasn’t going to rule. She said to check with her tomorrow, or maybe she’ll wait until Wednesday.”

“What’s your take on this? Why’s she taking so long?”

“General consensus around here is she’s going to rule for you guys and is in no rush to do it.”

I was working on another story – a third lawsuit in three weeks had just been filed against Girls Gone Wild and I wanted to ask him a few questions.

“Let me get Joe off the other line and I’ll call you back.”

My desk phone had been ringing and the newsroom’s business secretary Melissa Clemmons answered it. She sent Francis’ corporate lawyer Michael Burke to me as soon as I hung up with Dyer.

We talked about the wave of lawsuits.

Once U.S. District Judge Richard Smoak issued his now-famous “settle or jail” ultimatum in March, which ultimately led to both Francis’ incarceration and a settlement of a 2003 lawsuit, lawyers across the country started smelling blood in the water.

Two girls in Orlando, who say Girls Gone Wild cameramen got them drunk even though they weren’t 21, then filmed them in sexual situations in the GGW tour bus, sued the company in Panama City. They didn’t have any legal standing to file in Panama City because the incident happened in Orlando, but they thought they had a sympathetic judge in Smoak.

Burke said the company had never seen this many lawsuits in such a short period of time. Girls were no longer asking the company to leave them out of videos because they’d changed their minds. Instead, they were filing lawsuits in Panama City.

“Everybody’s waiting to see what Judge Smoak is going to do, whether he’ll wash his hands of all this,” Burke said.

“Are you kidding? Smoak’s already got the soap out and ready,” I said.

Smoak was a very serious judge who had no interest in tying his name that closely with Girls Gone Wild. He’d made his rulings and wanted nothing more to do with Francis, I reasoned. I turned out to be wrong.

Dyer and Francis were waiting impatiently to see what Costello would do.

The next day they got their answer.

I’d picked up two small stories in the morning and was happily working on something other than GGW when Dyer sent my cell phone a text message.

“Heard anything yet?”

I hadn’t. It was a little past one in the afternoon and Costello would be back from lunch at any time. I decided to drive up to the courthouse to check on a ruling.

I breathed in the heat as I left the cool of the newsroom. So few people appreciated the summer heat, but I was a Florida boy and this was refreshing. I’d spent three winters in St. Louis and had my fill of cold.

The sky was a brilliant blue with towering white clouds. It was too dry for rain today, but over the next few days the humidity would build until those white clouds turned to thunder boomers.

The drive to the courthouse was a short one, about a mile. When I walked into the judge’s chambers, a secretary told me the judge was in a meeting but had left something for me.

Three rulings.

I texted Dyer back.

“She ruled. Denied all three. I need a quote.”

“My quote is ‘Mother-effer,’” he said a few minutes later over the phone. “But that would be inappropriate.”

Costello had decided that the charges were strict liability offenses, criminal intent and knowledge of age were not issues. The charges would stand and Francis would have to stand trial.

It also meant Aaron Dyer was no longer Francis’ lawyer, but I didn’t find that out until August. Dyer wasn’t going to be the last lawyer fired as Francis became increasingly desperate and lost faith in his legal team.

The windows were down in my 11-year-old Pathfinder as I drove home across the Tarpon Dock drawbridge after work on Thursday August 23, 2007. I was talking on my cell phone to my girlfriend, Angela Seaton, when the other line beeped in. The 310 area code told me it was Girls Gone Wild business.

“Hey David. It’s Joe Francis.” He sounded the same, his voice rising at the end of each name, despite four months of incarceration in two county jails.

“And Michael Burke on the other line,” Francis’ corporate lawyer said, breaking in.

“Well, Michael Burke, Joe Francis, how you guys doin?” I said, smiling at both the embarrassed tone of Burke’s voice and the exaggerated enthusiasm of Francis.

Burke was a good lawyer and a smart man, but every time I’d seen him he was spending his time trying to keep Joe Francis from doing something impulsive. It was like watching an overworked nanny chasing a spoiled child. He was also friendly and funny, but keeping track of the manic Francis drove his sense of humor into hiding.

“How’s it going in Panama City? What’s news out there?” Francis asked.

“Stayin’ busy, you know.”

He wanted to talk off the record. He was calling to give me a heads up about something “huge” and “groundbreaking” that was going to be filed the next day.

He got into that a little, then his time ran out on the jail phone he was using. A recording of a woman’s voice came on the line telling him his three minutes were up. All I heard was Francis yelling at someone down the hall to help him with his phone and then silence.

I was home by then, but since my cell phone didn’t get reception inside the house I stayed out on the lawn waiting for a call back. It was obvious that Francis hadn’t gotten to the real reason for the call.

I walked across the patchwork of grass and sand that I called a lawn to my oleander bushes. They were growing fast, already taller than me even though I’d planted them just two years before. A Chinese fan palm in the corner of the lawn was a strange yellow color, which didn’t look natural, and it seemed to be struggling with the sandy soil.

It took about a minute for the phone to ring again.

“I heard you gave an interview to VH-1,” Francis said, forcing nonchalance into his voice. “I heard you said I was getting screwed out there.”

“I said that? I might have said that public sympathy was coming around to your side and more people might think that you were not treated properly out here. I think I said something along those lines.”

He changed the subject and told me to call his new publicist the next day after the big event broke.

Burke hadn’t been able to tell me what was going on, so I called Aaron Dyer. Dyer didn’t answer. Nor did he respond to a text message.

So I waited.

The next day nothing happened. I finally got a hold of Burke in the afternoon.

“It’s not going to happen today,” he said. “If it gets filed it will be the week of Labor Day.”

It ended up happening the next Tuesday.

Francis fired Dyer and Tallahassee lawyer Larry Simpson and brought in Roy Black, the powerful celebrity lawyer from Miami.

I finally found Dyer on his cell phone that afternoon.

“You might be right about it being a relief,” he said, not sounding relieved. He sounded disappointed. He’d been with Francis from the beginning and was a staunch defender.

“He’s been sitting in jail for four months,” Dyer said. “People are asking him what his lawyers are doing with him sitting in jail all this time.”

So Francis decided to shake things up.

He said he had other projects that he was trying to get done and thought he’d be off all the Girls Gone Wild cases by the end of the week. Then we talked college football. His Trojans were getting ready for “Idaho or Idaho State or something like that” and were favored by 45 points.

“I don’t care if you are playing Idaho, 45 points is a lot,” he said.

I told him my Gators were getting ready for Western Kentucky.

“We’re all on the edge of our seats.”

“You know, my first three pointer came against Western Kentucky,” Dyer said. He’d played college basketball for USC. He described the shot in detail. “It’s really tough to bank in a three.”