The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (24 page)

“That’s fine.”

“He cannot deny that plea.”

“He wouldn’t be denying the plea, your honor.”

“No, he can’t deny that he had … he can’t say he had his fingers crossed when he said he was guilty. That’s conclusive.”

Smoak had also decided that the courtroom was to remain open to the public throughout the trial, denying a motion from the plaintiffs to keep the public out while the girls were testifying and to keep their identities secret even after the trial began. Pontikes had moved early on in the case to have the plaintiffs identified in court records only by an initial. The local media didn’t really care, so the motion was not challenged until she asked Smoak to take steps to keep the girls’ names out of the press indefinitely.

News Herald Editor Mike Cazalas said privately that it would be exciting to challenge the new motion, a “real First Amendment issue,” but told me as I was preparing the story to not mention whether the paper would actually take any steps in that direction. He waited until Smoak, in a preliminary hearing, indicated that he was leaning toward keeping the courtroom open. The next morning, the paper splashed the headline that it would challenge the motion. With the judge leaning the paper’s way even before its lawyer filed any motions, it looked like an easy win and good PR.

Shortly before the trial was to begin, Smoak formally ruled that there was a presumption of openness in all trials and ordered that the girls’ names would be used throughout the trial and the courtroom would remain open.

“Any social stigma that might attach to the Plaintiffs in this case is no different than that in the sexual discrimination or sexual harassment cases common in this district, where the plaintiffs are always named,” Smoak wrote in his order. “Furthermore, the mere filing of a civil action against a defendant may cause damage to their reputation and may also result in economic harm. Basic fairness dictates that those among a defendant’s accusers who wish to participate in the suit as individual party plaintiffs must do so under their real names. Plaintiffs also emphasize the difficulty they have had and will have in testifying, but this too does not compel closure of the trial. Although the events Plaintiffs B and V will have to recount in presenting their case may well be painful to recall, unfortunately this is the nature of many civil cases: tough testimony must be given. For example, few things are more painful to imagine than the death of a child, and yet plaintiffs in wrongful death cases are frequently forced to testify in detail about their child’s death. Furthermore, this is not a criminal case where my decision on anonymity might be different. The government is not pursuing this suit against Defendants. The Plaintiffs chose, as adults, to bring this suit. Plaintiffs’ argument that discontinuing anonymity would lead to a “chilling effect” on reporting crimes and a lack of punishment for child pornographers would be more persuasive in a criminal context than in a civil suit. In the parallel criminal prosecutions based on the events at issue in this civil case, the identities of the victims, who did not choose to bring the suit, were kept anonymous. The Defendants have already been subject to full criminal sanctions for the events that are the subject of this case. Reaching a different result on anonymity in a civil suit will not cause a chilling effect on reporting crimes and punishing criminals in the criminal arena.”

He did, however, order that witnesses who might have been victims of crimes in these cases, such as underage girls who were filmed by Girls Gone Wild, but aren’t a part of the lawsuit would remain anonymous throughout the trial.

Pontikes responded by appealing the order and asking for a continuance of the trial, which Smoak reluctantly granted. In court, he told the lawyers that he feared this case would turn into the Flying Dutchman of the legal world – sailing the seas endlessly without finding a port. He ordered that the lawyers needed to be ready for trial within a month of the appeals court’s ruling, whatever it might be.

Selander asked for some leeway in that ruling because Rachael Pontikes was planning to get married October 30. Smoak promised to keep that in mind if a decision came down from the appellate court in September.

And as far as “social stigma” attached to this case, the plaintiffs were claiming lots of it. In the February 25 hearing, Bateman alluded to a suggestion from the plaintiffs’ lawyers that they might claim a diagnoses of “bipolarism” as damages to one of the girls.

Larry Selander didn’t touch on that in his reply, but he did loosely address the damages that they might seek in trial.

“Plaintiff B was a straight-A student in high school and went to the University of Texas. This whole incident knocked her out of school. It changed her life drastically. She believes she killed her father as a result of it. How much is that worth? This is all about remediation of a horrifying situation that occurred to these women. But we can’t put it on a piece of paper and multiply this by the other thing and come up with a profit margin and apply it.”

He said Girls Gone Wild could. They made “multiple millions of dollars for the very tapes we’re involved with here.”

Bateman wanted to know if Selander was going to claim economic damages, not just emotional ones. If so, he said, he wanted those spelled out and calculated so he could challenge them at trial.

“There are economic damages,” Selander said, “but they aren’t calculable. What is the economic damage to one not being able to get a job in their life? That is an economic loss.”

“Do you have an economist that’s going to talk about her work life expectancy?” Smoak asked. Bateman nodded along and voiced his agreement with the judge’s question.

“We do not, judge,” Selander answered.

“If we’re talking about loss of … economic damage I think would include loss of past earnings, loss of future earnings capacity and I think you ought to be able to disclose, you know, confirm are you seeking those?” Smoak asked.

“I haven’t been able to determine any of those,” Bateman chimed in, like a choir backing up a preacher.

“Are you claiming that there has been a physical type injury, or even psychic, that has required treatment or is going to need treatment in the future?”

“Exactly,” Bateman added.

But despite the judge’s questions and enthusiastic support Smoak was receiving from Bateman, Selander didn’t answer.

“Are they not claiming any of those economic damages that you described?” Bateman asked the judge. “If so, I think they ought to give that information.”

There was a standing order that the sides discuss issues, including damages, that would come up at trial. Bateman wanted a deadline on deciding the issue.

“Mr. Selander, can you get it in two weeks?” Smoak asked.

“Sure, judge, we will get it in two weeks.”

But Selander also complained that he felt Bateman was intentionally trying to smear his clients by putting identifying information into his motions and supplying them to the press. Selander said Bateman also put in damaging, and false, information about additional pornographic movies that a plaintiff had done after Girls Gone Wild. There was no doubt that one girl had, but Bateman had written in a motion that he thought another of the four girls had as well. He’d been wrong.

“And you see the comments you get from, in, the daily Herald’s comments section on its website. It’s just unbelievable. And it’s the very kind of thing that’s damaging these people.”

“Well,” Smoak began, picking his words carefully, “I’m not sure … that darned thing on the internet. But I’m not sure you need to get too bothered up about it. My limited understanding, it’s probably the same six, eight or ten people that are responsible for their willful ignorance and pig-headedness. I don’t know any other way to describe it.”

He was probably close to the truth. The News Herald’s “Squall Line,” a free-for-all anonymous comment section, and semi-anonymous commenters to stories (they only had to supply a pseudonym), were dominated by the same dozen or so people. They would often spend most of their time commenting on the idiotic comments made by other “Squallers,” like an ugly family discussion at a Thanksgiving dinner.

Smoak obviously followed what was said about him online.

“Mr. Francis has a frequent rant that he spent a year in jail because a federal judge denied him bond,” the judge said. “I didn’t have anything to do with that.”

“Judge,” Bateman jumped in, “I didn’t say it and I’m not going to vouch for anything my client has said or is purported to have said.”

“Obviously,” Smoak said, getting back to Selander’s issue, “for a certain segment, anything that happens in this case is like throwing red meat to them.”

He said he expected the jury pool in this case would be composed of better people. And the case seemed destined for trial, once the appeal was out of the way.

“Have you all just given up the idea that this case can get settled?” Smoak asked.

“Yes, sir,” Bateman said.

During this same hearing, Bateman also foreshadowed a motion he would file about two weeks later.

“If this thing is going on in October, your honor, I may not be here myself. I may prefer the jail cell.”

On February 24, Bateman asked Smoak to allow him to step away from the case. He said Francis hadn’t paid him in more than seven months. Bateman told the judge that now was a good time for a lawyer change because a new attorney could get up to speed on the case during the delay. Smoak granted Bateman’s request on March 10, officially ending Bateman’s participation in the case. Smoak ordered Francis to have a new lawyer in place by April.

On April 15, Bateman sued Francis for nearly $500,000 in unpaid legal fees. He wrote that his firm was retained in February 2009, with an upfront, nonrefundable $200,000 payment, with the expectation that the case would go to trial as then-scheduled in July 2009.

As Bateman noted in his lawsuit, Smoak ordered a continuance on July 1, 2009, to a new trial date of October 13, 2009. On August 28, the trial was rescheduled for January 4, 2010. On November 20, the case was rescheduled for February 22. Of course, in February, the trial was postponed because of the appeal. No wonder Smoak worried about the case becoming a legal Flying Dutchman.

According to the contract between Bateman and Francis, they were to renegotiate a fee if the trial was continued. Bateman said Francis ignored any attempt to negotiate a new contract and the meter had been running since July 1.

Fees for the firm’s lawyers and paralegals had reached $497,313. Bateman and the other lawyers in his firm charged $350 an hour. Expenses had topped $50,000, but Francis had made a payment in September for some fees and the total Bateman was suing for was $491,109.

Again, Francis’ distrust of his attorneys led to him withholding money that he easily had, and sabotage his own case. Bateman had done an outstanding job to that point and his mannerisms, while sometimes distracting, would probably have appealed to a jury.

Francis’s disregard for judicial orders, another persistent problem, also resulted in his losing $99,556 in a judgment on April 9 to Panama City attorney Jean Marie Downing. Downing had represented Francis in another Bay County lawsuit and sued him after he refused to pay her $77,558 bill. When Francis ignored Smoak’s orders to help pay for an arbittor, Smoak granted a request from Downing for a default judgment, declaring her the winner. The additional $20,000 that Downing received over her fees was interest and other costs associated with the lawsuit.

Two weeks later, Downing talked to Mantra’s corporate lawyer who told her they’d like to “work it out.”

“She was surprised to hear there was a judgment,” Downing laughed.

.

Chapter 23

All stop

F
or months in 2010, just about everything in the Bay County case came to a halt. Joe Francis had to explain why he hadn’t hired a lawyer by April to replace Bateman. Francis, claiming financial problems because of the tax lien, asked for and was given more time.

And life went on.

In July, Francis got engaged to Christina McLarty, the entertainment reporter with CBS News in Los Angeles who he had called from solitary confinement in the Bay County Jail. He issued a press release saying the couple would wed in Mexico, in a civil ceremony, to protest U.S. prohibitions against gay marriage.

Tiger Woods got divorced in Panama City and President Obama vacationed here.

In St. Louis, Francis won a civil trial in July. He was sued by a woman who was partying in a nightclub in May 2004 when a Girls Gone Wild cameraman began filming her. She refused to expose her breasts, but someone in the crowd yanked down her top and the incident made it into a video. She didn’t realize it until years later when a friend of her husband watched the video and recognized her. She sued for $5 million.

She argued at trial that she didn’t give consent. Francis’ attorneys argued that she implied consent by just dancing in front of the camera at the club. After a 90-minute deliberation, 11 of the 12 jurors sided with Girls Gone Wild.

“This is just one more example of someone trying to make a quick buck off Girls Gone Wild by making false accusations against our company,” Francis said in a press release. “This is also another great example of someone who got their ass kicked in a court room by a smart judge and a smart jury who saw the truth. Girls Gone Wild will always vigorously defend ourselves against anyone who makes such outrageous and defamatory allegations. Girls Gone Wild has NEVER lost a jury trial.”