The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (25 page)
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Authors: David Angier
Francis’ record in court was pretty impressive and he had a straightforward approach to plaintiffs – he attacked.
In 2004, a woman on vacation in Miami Beach accused Francis of raping her. She told police that she met Francis in a nightclub and they began arguing over Girls Gone Wild’s exploitation of women. Francis invited her up to his hotel room. She and a friend went with him and they resumed their discussion of Francis’ treatment of women until Francis got up and went into the bedroom. According to the police report, “she followed him into the bedroom and the next thing the victim remembers is waking up naked in bed, (Francis) was also naked next to her.”
A month after the report became public, Francis sued her for defamation. In his lawsuit he said they did have a discussion about Girls Gone Wild that went into the early morning hours when they decided together to go to bed. Francis’ bodyguard had checked her ID earlier in the night to ensure that she was of age.
Francis said they had consensual sex, then fell asleep together. The next morning, he said, they snuggled and he asked her if she wanted to do it again. She refused, saying she was concerned about returning her rental car late. They went out to the living room, where her friend and Francis’ bodyguard were, and Francis ordered the two girls hamburgers from room service. Before leaving, the woman left her phone number and asked Francis if he was going to call her.
Francis sued her for $25,000,036. The $36 was the cost of the burgers.
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n September 27, attorney Christopher Pantel, of a law firm located on Hope Street in Los Angeles, filed his notice of appearance in Francis’ case. His first duty was to address a motion for default judgment filed by the plaintiffs in the lawsuit, claiming that Francis had missed a drop-dead cutoff for getting new representation for his companies. Individuals don’t have to be represented by a lawyer, but companies do. Judge Smoak had threatened Francis with default judgment if he missed this deadline and the plaintiffs were trying to hold him to it.
Pantel didn’t say in his filing what day he’d been hired, only that the delay had been caused by Francis’ inability to line up local counsel to assist. Lawyers practicing in specific federal courts must be certified in that district. That usually means hiring a local lawyer to at least put his or her name on the case and allow Francis’ out-of-state lawyer to work the case. But in this case, Pantel had to get the certification himself, which he did on September 24.
The law firm advertised itself as trial specialists, listing several notable trial victories and noteworthy clients on its website. It looked like Francis was gearing up to finally finish this case. The 11th Circuit Court of Appeals, however, hadn’t issued its findings in the open court matter, so everything was still on hold.
Still. Trial specialists. That was a good sign.
I’d left the News Herald in December 2009 and opened a small public relations business. My main client was the State Attorney’s Office, which was paying me enough to make my bills. In return, I wrote their press releases. I had really left because Francis was supposed to go to trial three months later and I wanted to free up time to finish the book. But with the postponements, I’d been feeling like an idiot. At least I had a lot of free time to think about how idiotic I was.
For a while, I tried to treat it like a well-deserved break. I started windsurfing again. I picked up the jogging and spent a lot of time with my girlfriend’s family.
Unfortunately, I wasn’t able to really pour myself into this semi-retirement. It’s nice to be leisurely when you can afford it, and lazy when you don’t care, but I couldn’t afford to not care.
In late September, North Florida finally shook off the smothering heat of a long summer and began tingling with the cool evenings of approaching autumn. It was refreshing for body, mind and spirit.
Then came the man from Hope Street. It felt like things were going to start happening. That was a misleading feeling. Pantel and his law partners moved in December to be allowed to withdraw from the case.
Jonathan E. Meislin, on behalf of Bassi, Edlin, Huie & Blum LLP, wrote the motion and claimed in it that Francis was asking the firm to do illegal things. Of course, he never came right out and said that, but he cited as their reason for withdrawing numerous rules of professional conduct dealing with clients who ask lawyers to do illegal things.
This is how a lawyer tells a judge that: “the Florida Rules of Professional Conduct require a lawyer to terminate representation when “the representation will result in violation of the Rules of Professional Conduct or law,” or “the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent…” Withdrawal is allowed if a client seeks to pursue an illegal course of conduct. A lawyer also may seek permissive withdrawal from a court if the client “insists that the member pursue a course of conduct that is illegal or that is prohibited under these rules or the State Bar Act… .” A lawyer may seek permissive withdrawal from a court if the “continued employment is likely to result in violation of these rules or of the State Bar Act… .”
That was all in the first paragraph. Subtle.
Meislin went on to write that withdrawal can be granted if there is a breakdown in communication or a disagreement about strategy between the client and attorney.
“There has been a total breakdown in the communication between BEHB and its clients.”
And, of course, what had now become the standard reason that Francis couldn’t keep a lawyer: “Failure or refusal of a client to pay or secure proper fees or expenses of an attorney after being reasonably requested to do so will furnish grounds for the attorney to withdraw from the case.”
“Mr. Francis and his companies owe BEHB over $90,000 in legal fees and advanced costs that they have failed to pay.”
Meislin and Blum offered to tell Smoak what Francis was asking them to do, and not paying them to do it, but in private. They couldn’t in the motions because it would violate attorney/client confidentiality.
On January 18, 2011, Smoak granted the motion to withdraw and asked no questions of Blum and company.
Francis was, once again, without a lawyer and in danger of violating Smoak’s orders.
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n February 1, the 11th Circuit Court of Appeal reversed Smoak’s ruling on the anonymity issue. The appeals panel took a surprisingly sensitive stance on the matter and seemed to chastise Smoak for being overly concerned with the law instead of these girls’ fragility.
Chief Judge Dubina wrote the opinion and led off with an overview of Smoak’s reasoning in denying the motion for anonymity. Dubina said Smoak weighed the presumption of openness that is inherent in all trials against the plaintiffs’ reluctance to publicly disclose “information of the utmost intimacy.”
“According to the district court, Plaintiffs S’s and J’s claims stemmed from an incident that lasted ‘less than a minute’ and did not involve ‘sexual conduct as a matter of law.’ The district court conceded that Plaintiffs B and V would have to disclose information that “may be embarrassing,” but concluded that “casual and voluntary sexual activity is not the type of fundamentally personal issue that warrants the imposition of anonymity like abortion, birth control, or religion.”
Smoak had also concluded that none of the plaintiffs would be forced to disclose “information of the utmost intimacy.” The fact that they were minors at the time was not given much weight, Dubina wrote.
“Finally, the district court held that the Plaintiffs’ claims that they would suffer violence and retaliation for filing the suit were not of a sufficient degree to warrant anonymity. In light of all this, the district court held that the Plaintiffs did not overcome the presumption of openness in court and denied their motion to remain anonymous.”
Dubina wrote that the appeals panel’s job was to determine if Smoak abused his discretion in coming to his decision. “A district court abuses its discretion in denying a motion to remain anonymous if it fails to actually consider the circumstances of the case and to weigh the relevant factors and instead follows a blanket rule in making its final decision.”
What Dubina found troubling in Smoak’s order was that he “incorrectly deemed some of the plaintiffs’ conduct casual and voluntary.”
The panel decided that Smoak had abused his discretion and vacated the order. The appeals court found that Smoak should allow plaintiffs B and V to remain anonymous and told Smoak to reconsider allowing plaintiffs J and S to proceed anonymously.
“The district court failed to take into account the actual allegations made by the plaintiffs – as evident in its mischaracterization of the plaintiffs’ conduct as “casual and voluntary” – and failed to adequately consider the Plaintiffs’ extensive evidence about the scope of harm they faced if they were forced to reveal their identities.
“First, the district court gave inadequate consideration to the degree of intimacy the plaintiffs’ testimony would reach. The issues involved in this case could not be of a more sensitive and highly personal nature – they involve descriptions of the Plaintiffs in various stages of nudity and engaged in explicit sexual conduct while they were minors who were coerced by the defendants into those activities. Plaintiffs J and S alleged that they were filmed displaying their breasts and that this footage was used by the defendants in films marketed as pornography.”
Dubina wrote that Smoak was mistaken in thinking that just because J’s and S’s flashing was not illegal, or classified as “sexual conduct,” under Florida law that it wasn’t a “disclosure of utmost intimacy.’”
“Even if their conduct does not fall under the typical classification of “sexual,” the district court should consider whether it requires disclosing information of “utmost intimacy” in light of their ages at the time of the filming.”
Dubina wrote that Smoak also mischaracterized plaintiffs B’s and V’s conduct as being casual and voluntary.
“Plaintiff B alleges in the complaint that her filmed behavior was the possible result of being drugged by the defendants – a fact that makes her conduct decisively not ‘voluntary.’ In any case, the extremely graphic sexual activity she engages in with the other female in the footage can by no means be deemed “casual.” Her filmed conduct includes a lengthy and explicit session of homosexual intimacy involving fondling and oral and manual sex with another underage woman. Requiring her to be identified by name closely connects her graphic homosexual conduct with her widespread public reputation and thus constitutes a matter of ‘the utmost intimacy.’
“As for Plaintiff V, there is no real dispute that her conduct was not casual and voluntary. Francis was convicted under a plea agreement of one count of child abuse under Florida Statutes and two counts of prostitution for his actions with Plaintiff V. There is nothing voluntary about the conduct giving rise to those charges.”
Dubina said Smoak was too quick to discount the testimony he heard from the plaintiffs’ experts as to the damage the girls would suffer if their names were made public. In addition, neither the defendants, who did not even argue against anonymity, nor Florida Freedom Newspapers could show how they’d be damaged or prejudiced if the plaintiffs continued to remain anonymous.
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n March 2, Smoak vacated his order from February 5, 2010, and, in compliance with the appeals court, allowed all four girls to proceed anonymously. He’d already set the trial date for March 28 and gave Francis until March 15 to have a lawyer in place for his companies or face default.
On March 11, Francis wrote a letter to Smoak asking for more time. He said he thought he had a lawyer lined up on March 1, but two days later he discovered the attorney had not been admitted to practice in the Northern District of Florida. That was a poor excuse, one that Smoak would focus on in his order. Getting admitted to the District Court was a matter of filling out a form.
“I sincerely believe that if the trial date were continued for a short period, I would be more successful in my ability to retain counsel,” Francis wrote. He asked for at least 30 more days.
His first mistake was telling Smoak that he had lined up a lawyer on March 1, when Smoak had allowed his last attorneys to withdraw on January 18. Francis insisted he was talking to lawyers in California and Florida, but the six-week gap looked like he had done nothing until after the 11th Circuit released its opinion.
Smoak, as was his habit when annoyed, went through every detail in Francis’ history with lawyers in this case. He reminded Francis that Bateman had withdrawn in March 2010 and at that time he’d ordered Francis to have a new lawyer representing his companies by April of that year. Francis asked for more time. Smoak gave it to him. Francis asked for more time again. Smoak gave it to him.