The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (45 page)
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Authors: David Angier
“I think the judge doesn’t like these plaintiffs, he doesn’t like this case,” Rachel said.
While we talked, Vivi refused to look at her mother, concentrating instead on her toys.
“Out,” she said standing up in the water and trying to climb back over the side of the tub.
“OK baby, hold on.” I wrapped a big towel around her and tried to dry her hair, which resulted in more wailing and struggling. I held her still long enough to dry her and then wrapped her securely in the towel, tucking the end in at her neck to hold it in place.
“Hold you,” she said, meaning she wanted to be picked up.
“You want mama to hold you?” Rachel asked.
“No.”
“No? Can mama have a smooch?”
“Home. Vivi. Take me home.”
Rachel’s eyes immediately watered.
“Take you home? Oh baby girl, don’t say that, you’ll make mama cry. Everything will be back to normal tomorrow. I promise.”
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“Y
ou all were instructed to have portions of the videos identified and keyed up, and to have reached some kind of agreement about that,” Smoak said. It was Tuesday morning and he was all business.
Rachel Seaton-Virga got to her feet and said she’d talked to Dent until 10 the night before.
“It’s not that we’re not working together, I just don’t think we’re going to be able to come to an agreement. They want none of the video in. Miss Pontikes is not gonna budge on that.”
They cued up the portion that they wanted to play, but it wouldn’t go through Gerard Virga’s computer. Eventually, they got it to play on Ter Bush’s laptop.
Pontikes went around to each video monitor on the plaintiff’s and defense’s tables and turned them away from the audience. She shot the reporters a look that accused them all of being voyeurs. She also wanted the audio sent only to the judge’s computer, but that didn’t work and eventually they had to play it loudly enough for everyone to hear.
The early clip started off with a startlingly high-pitched, vigorous and drawn out “wooooo” from either Plaintiff B or her friend, an unidentified female.
“We’re gonna be stars, man” B said.
“Porn stars,” the other one said.
“That’s where it all starts.” They slap hands, a low five.
Smoak stared steadily at his monitor, his hand rubbing his lower lip.
Pontikes objected because the other girl, another minor, is exposed. Nothing has been done to try to cover her face.
“There’s nothing illegal about having a minor in a video.” She’s clothed, no sexual conduct, Seaton-Virga said.
Pontikes, however, objected again.
“We don’t have this,” she said of the footage being shown. “We got an edited version.”
This has more content, it has a time meter, and appears to be shot from a different angle, Pontikes said. She said they made numerous requests to Francis during the three years of discovery in this case for all footage related to the plaintiffs and they never received this film.
She wanted the entire video excluded as punishment for the discovery violation.
Smoak said nothing from the defendant’s video would be used, but he would still review the clips from the plaintiff’s copy.
It took a few minutes to get the plaintiffs’ version of the video to the right spot. They began playing it and Seaton-Virga told the judge that it didn’t appear to be different from the copy they have. She disagreed with Pontikes’ claim that it looked like it was shot from a different angle.
“This is a discovery violation and very serious discovery violation,” Pontikes said, ignoring Seaton-Virga’s assertions. “I’d like to have them sanctioned by having it excluded.”
“Present counsel have my sympathy,” Smoak said to the Virgas. “Mr. Francis is a scoundrel of the first order, but we can’t deal with that right now.”
When the “before” clip finished, and the chatter of excited girls was suddenly cut off from the speakers, Smoak looked out toward the lawyers.
“Our main objection is that this occurs before anything has happened,” Pontikes said. “Their only possible reason for wanting it admitted is, again, to show consent. Those two minors look like they want to do this. There’s nothing to do with damages. Nothing has happened yet.”
“Tell me why this is material,” he said to Seaton-Virga.
“She was the same person walking in as walking out. The jurors should be able to see whether her demeanor was any different than when she left.”
Pontikes started in again on consent.
“Miss Pontikes, we’re not gonna finish by Friday unless we get on with this,” Smoak said, holding up a hand to stop her. “I think I know where you are going.”
They played the “after” clip.
“I’m getting fucked up after this,” B said in a high giggle.
She said she’ll need a taxi to take her home after this night and then asks the cameraman if she can have another drink.
“That’s about unintelligible,” Smoak said after the audio suddenly stopped. “What is probative about that scene?”
“I don’t want to be repetitive,” Seaton-Virga said. “The plaintiffs have sensationalized what happened here. They have vilified Mr. Francis. The jury should be allowed to see the tape to see for themselves the context of the event, not just what she testified to. Despite the plaintiffs’ attorneys’ clever spin, this has nothing to do with consent. Credibility is always an issue. This goes to the damages. She’s substantially the same person after as she was before. She’s ready to go on and continue her night. I understand why the plaintiffs don’t want this in, it doesn’t paint Plaintiff B in a very favorable light.”
Smoak was still looking at the monitor, rubbing his bottom lip and chin.
“We only see a small bit of face,” he said. “We don’t see expressions. They’re speaking in an excited tone, you can’t tell what they’re saying. They’re very excited about what just happened. I wasn’t sure I could pick out what they were talking about. I don’t know if what I saw was excitement or hysteria.”
“That is a question for the jury. The video is what the video is,” Seaton-Virga said.
Smoak said he didn’t see the value in the footage. He ordered that the after-scene would be excluded.
There were two segments to the before clip: one where the girls are walking into the hotel and a later part where they’re leaving the party and going into the bedroom.
Seaton-Virga said the part where they’re going into the bedroom is essential to disputing the drug allegation.
“This is to refute the contention that she’d been drugged. She said this was so out of character for her, she felt numb the next day. This was testimony that was elicited by Miss Pontikes in the direct. She put her character at issue. And it goes to the intentional infliction of emotional damage. It is outrageous if she is drugged by Girls Gone Wild. That is an outrageous claim for the jury to hear and would certainly go to boosting her damages if the jury found that she had been drugged.”
Smoak said the jurors might be expecting to see someone who was “zombie like. It may go to the contention that she had been drugged. That was a pretty serious accusation. These two clips will be permitted.”
Pontikes had no intention of letting it go. She again objected, but Smoak was ready to move on.
While Ter Bush cued up the footage of plaintiffs J and S, Pontikes went over to have a whispered conversation with Selander.
“While we’re getting things ready I’d like to return to Plaintiff B for just a minute,” Pontikes said to the judge.
“Miss Pontikes, I’m done with B for now. Let’s get this out of the way.”
They watched the tape of J and S flashing.
“Plaintiff S claims she hid her face in embarrassment after flashing, but the video doesn’t show that,” Seaton-Virga said.
But Pontikes said S disappeared from the frame when the cameraman shot J. Pontikes saw S leaning forward which would be consistent with her testimony.
Pontikes said Francis had already pounded the plaintiffs in his cross about the length of time they were actually shown flashing. Two seconds. “We’re looking to put the least amount of nudity into this case. Everyone knows what happened in this video.”
“Their demeanor is certainly something the jury can consider,” Smoak said. “This segment will be allowed.”
Pontikes held some files to her chest as she stepped carefully back to the podium. She was going to bring B up again and was leery of an angry response. She asked the judge to clarify his ruling on the Plaintiff B video. She said she assumed that Smoak was allowing the footage in without audio.
Smoak said he didn’t hear the audio so they cued it up for him again. The sound wouldn’t play through his monitor so he came around and stood behind Ter Bush and watched the video over her shoulder.
Seaton-Virga said the dialogue is important so the jury can hear her speech pattern. “As we know from DUI investigations, that is pertinent.”
“That dialogue is very prejudicial,” Pontikes said.
“That was unintelligible,” Smoak said. The girls had been excited, talking fast and loud. “Did anyone understand what was said.”
Seaton-Virga tried to carefully go through the dialogue.
“Plaintiff B makes the comment, ‘We’re gonna be stars.’ The other girl says, ‘We’re gonna be porn stars.’ Plaintiff B says, ‘That’s where it all starts.’ And that’s when they’re high-fiving each other, I guess low-fiving is more accurate.”
She returned to the sobriety issue. They put her sobriety at issue. They put consent at issue. If drugs and alcohol didn’t matter for consent, then why did they ask her about it.
“They opened the door. Your honor has said that I can’t use this to argue consent and I won’t. Maybe any confusion could be cured with an instruction that the jurors are not to consider this as evidence of consent.”
Smoak was starting to reconsider his prior ruling. He asked whether the clips would do more to confuse the jurors because it’s so hard to hear what they’re saying. After some consideration, he decided that the best way to handle the drug question was to simply tell the jurors to disregard B’s testimony about drugs.
“That’s not enough,” Seaton-Virga said. “They should be able to see the tape, the context, the circumstances so they can also address the issue of B’s credibility. Once that jury heard that testimony, there’s no un-ringing that bell. There’s no guarantee that a jury instruction will undo the prejudice done to Mr. Francis.”
But Smoak had decided. B’s clips, all of them, stay out. He’ll tell the jurors before they begin deliberating to disregard testimony about drugs.
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I
t was time for Gerard Virga to do his thing. He stood and approached the podium, slightly hunched over his notes. He had a tendency to mumble and every time he stood to make an objection, the court reporter and Smoak would lean forward and cock an ear in his direction.
Smoak insisted that he make all his arguments while speaking into a microphone.
Sometimes even that didn’t help.
Virga had worked well into the night, nearly every night since they’d taken the case, trying to catch up to the plaintiffs’ attorneys as far as where they stood with the law.
His first argument was to address the age of the allegations. He said the plaintiffs were barred by the statute of limitations from going forward.
“This has already been argued,” Pontikes said to him quietly. “This has already been dealt with.”
He nodded without looking away from his notes, and continued on with his argument. He had two reasons for going over this ground. First, he hadn’t argued it the first time and second he needed to buy time for Seaton-Virga to write her closing argument.
Pontikes said they were well within the statute of limitations because the sale of the DVDs went on for years after the actual filmings.
Virga then touched on something that Pontikes had brought up the day before. She’d been trying to prove a point about how seriously the legislature thought of these cases. She said it had raised the minimum award of damages for the intentional infliction of emotional damage in 2008 from $50,000 to $150,000. The plaintiffs were proceeding under the new rule, meaning if the jurors found that there was intentional infliction of emotional damage they couldn’t award anything less than $150,000 per defendant to each plaintiff. Considering there were four defendants, for a total of $600,000, and four defendants, it would mean a minimum award of $2.4 million.
But Virga noted that when the legislature changed the rule it did not apply it retroactively. He said it was meant for lawsuits that were filed after 2008. These cases, he said, should fall under the old rule.
Smoak agreed.
Seaton-Virga turned to Deutsch, sitting in the audience, and stage whispered to him, “He just saved Joe Francis $1.6 million.”
They took up a few more issues before allowing the jury back into the room. When they were seated, Seaton-Virga moved the video of J and S into evidence and played it.
What it showed was a view from outside the passenger-side window, looking in on a laughing, giggling Plaintiff S with a cigarette dangling off her bottom lip. She jerks up her bikini top, jerks it back down and laughs some more.
The cameraman asks if anyone else wants to flash and J immediately says, “I’ll do it.”
The camera swings to the back and J slides her top up and down a little more slowly.
The cameraman tosses in beads still balled up in a plastic bag and, that’s it.
There was nothing to say so no one said anything.
Selander had one housekeeping item to take care of. He told the judge that the computer printout that Pontikes had shown Eric Deutsch in her cross-examination the day before, the one in which she asked him about the green light next to the name, that name was Plaintiff B’s.
Both sides rested.
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“N
ow it’s time to argue,” Larry Selander said after taking the podium and facing the jury. It was his way of introducing the next phase of the trial, closing arguments.