The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (48 page)

R
achel Seaton-Virga came over to Angela’s house fairly early that evening. She wanted to load the kids up in the wagon and take them for a walk along the seawall-bordered Beach Drive. Vivi and I had been going out every evening after the trial with me pushing her wagon in front of me so we could talk the whole way. She was every inch her mother’s daughter, she rarely stopped talking. With the azaleas in bloom, our latest thing was to go along collecting flowers that Vivi would alternatively hold, put on the bottom of the wagon, transfer back to the seat of the wagon and then, ultimately, ask me to carry because she couldn’t find the best place for them.

All the while, Vivi and I would look for pelicans, boats and motorcycles. It was a blissful 40 minutes.

So when Rachel suggested a walk, I didn’t think anything about it. I just loaded Vivi up in her wagon and we set off. I guess it was naive of me to think that we would talk about something other than Joe Francis.

“He really bothers me,” Rachel began.

“Who?”

“Joe Francis. He calls like every 15 minutes. And every time, all I hear is, ‘If you win this I’m gonna make you big. You’re gonna be huge. You’re gonna blow up.’ I keep telling him I don’t want to be huge. I like my business just the way it is.”

“Why does that bother you?”

“I don’t appreciate being manipulated.”

“But he’s like that with everybody.”

“Is he?”

“Yes. Every time I’ve talked to him this week it’s been, ‘I’m gonna help you get published. If we win this case, I’ll go on a book tour with you.’ Blah, blah, blah.”

“Doesn’t that bother you?”

“No. Why would it? I find Joe Francis refreshing. I have to deal with so many people who are constantly trying to manipulate me in one way or another. Many of them don’t even realize they’re doing it. Those are the ones that bother me. Joe Francis is so obvious, so blatant that he makes me laugh.”

“I guess.”

“Just let it wash right over you.”

With that behind us, and three or four flowers in the wagon, I thought Rachel would start to relax and take in the stunning view from Beach Drive: the wide teardrop shaped bay narrowing to a point at the pass, the long private dock, it’s boards bent by the salt and sun, supported by pylons sunk in the sandy bottom, the distant mansions on Bay Point to the right and the wooded, untouched tip of Tyndall Air Force Base to the left.

“It’s so nice out,” Rachel said, breathing in the last chill of spring.

It was nice.

“So, can you believe Pontikes ….”

.

Chapter 56

“Extreme and outrageous conduct”

“G
ood morning,” Rachel Seaton-Virga said to the jurors Wednesday as she resumed her place at the podium.

They responded with a hearty good morning, which made Rachel laugh.

“I hear enthusiasm. Perhaps because you see the light at the end of the tunnel.”

Her closing, and especially this second half, had to touch on many issues. She had to continue introducing herself, to give the jurors a reason to trust her, address the issues that Selander raised and highlight the factors she felt the jurors should be focusing on.

She felt it was important, as a part of her introduction, to let the jurors know that she’d been a prosecutor for many years. So she told them a story about her first year as a prosecutor and how a judge told her an old adage: If you have the facts on your side, you argue the facts; If you have the law, you argue the law; If you have neither, you pound your fist on the podium.

Yesterday, she said, they’d talked about the facts. Today she wanted to touch briefly on the law.

“We talked about how some of the defendants have been found liable on certain elements as to certain counts. That is true.”

But liability doesn’t immediately lead to damages.

“What it comes down to is this with the damages: you have to believe that these plaintiffs were damaged by the actions of the defendants. Are there any real damages? Are these fabrications? Are these excuses? Is this what these women came up with once they’d hired an attorney and talked to yet another doctor?”

She talked again about the plaintiffs’ prior hospitalizations that occurred without any mention of Girls Gone Wild. She said it wasn’t until they hired lawyers and talked to Lebowitz that they had their breakthrough.

“The realization was that Mr. Francis, the Girls Gone Wild companies, had deep pockets. They were someone they could blame for their poor choices or for the position they found themselves in life, even though it may not have been their fault.”

Those poor decisions could have been the result of bad upbringing, genetics, an abusive father or an alcoholic parent.

“All I can do is ask you to think about these things as you evaluate the facts and compare them to the law.”

The jurors, she said, were going to have to find that Joe Francis intentionally inflicted emotional damage on these girls, that he set out with a course of action to destroy their lives.

“What the plaintiffs have to have proven to you by the greater weight of the evidence is extreme and outrageous conduct.”

She said there was a legal definition of that conduct: “behavior which, under the circumstances, goes beyond all possible bounds of decency and is regarded as shocking, atrocious and utterly intolerable in a civilized community.”

“What is emotional distress? They must show that the emotional distress is severe when it is of such intensity or duration that no ordinary person should be expected to endure it.”

What the plaintiffs had to prove was that the plaintiffs’ emotional distress was caused by the intentional, extreme and outrageous conduct of Girls Gone Wild and Joe Francis.

“But for the extreme and outrageous conduct, the severe emotional distress would not have occurred,” Seaton-Virga explained. “The plaintiffs cannot prove that particular element to you. They simply cannot.”

But, if the jurors were to find that any of the defendants did intentionally inflict emotional distress on the plaintiffs, they would next have to decide how the girls were damaged.

As far as damages, “You don’t need me to tell you what constitutes a damage and what doesn’t. Look at the facts of this particular case, then take the law and apply it to the facts.”

To decide damages, Seaton-Virga said, they would have to rely on the credibility of the plaintiffs.

“Credibility is, of course, important. How could it not be? These women are asking you to give them, according to Mr. Selander, a minimum of $17 million. Of course it’s important that you find them credible if you’re going to even consider awarding them that type of dollar amount.”

To decide if the plaintiffs are believable, look at their testimony and ask yourself, ‘Do they have a reason to not tell the truth? Do they have a personal interest in the outcome of the case? Did they seem to have a good memory? Did they say something in court that was contradictory to what they said in their depositions or that conflicts with the evidence in the case?’

“I would like you to think about what they told you on the stand and what they didn’t tell you.”

She then went to punitive damages.

“Punitive damages are not meant to be a corporate death penalty. They’re are not intended to bankrupt a company. It is only to deter future conduct. We know that they have stepped up their verification procedures for identification. This not the same company, in terms of verification, that it was in 2000, because a change needed to be made and they made it.”

She questioned the $17 million figure the plaintiffs had thrown out as to profit on the films. She said that didn’t include business expenses. That money, she said, isn’t simply sitting in a bank somewhere.

“And while I’m thinking about it, I know I wasn’t here for the entire trial, but what I have not heard and what I’m a little unclear on is what role Aero Falcon had in any of this. Who is Aero Falcon? What did they do? All we heard was Joe Francis, Joe Francis, Joe Francis. What about MRA Holdings, who are they? How did they allegedly damage these plaintiffs?”

It was time for a big finish and she knew it.

“Essentially, what I’m asking you to do is go back, evaluate the testimony, evaluate the inconsistencies in the testimony. Dr. Lebowitz, Dr. Constanzo, look at their motivations, look at what they considered and what they didn’t consider. Evaluate the agenda.

“What I suspect is, what we’ll be left with, is the plaintiffs pounding their fists because the evidence does not support that these women were damaged by these defendants. What the evidence points to is a convenience factor, a lack of personal responsibility, a blame game.

“If you believe that Mr. Francis caused these women all of these life problems, then I suppose you have to quantify that. But I submit to you that what they are entitled to is not a dollar. They had opportunities for counseling and they chose not to disclose this. Why? Because it wasn’t that traumatic. When they saw dollar signs, they saw trauma.

“Remember what Dr. Lebowitz said, ‘Trauma is one’s own perception.’ They certainly weren’t perceiving it in 2003 when they were hospitalized. Or 2004 when they were hospitalized. Or when they were going through counseling free of cost.

“And that’s relevant.

“Let me say this before I sit down: Thank you all for your attention. I know that this has gone on longer than expected. I know that you’re tired. I would like to thank the plaintiffs’ counsel, they have been extremely accommodating throughout this entire process. And also, your honor.

“With that, I will leave Mr. Selander to his fist pounding.”

She gathered up her notes and turned from the podium.

Selander rose, took Seaton-Virga’s place at the podium and started his rebuttal closing with the same story she told about arguing the law and the facts.

“When you don’t have either, you blame somebody else. You try to put somebody else on trial. Their defense has been, let’s put the victims on trial. They don’t put any evidence on because you know they don’t have anything to say.

“They forget that we know who has personal responsibility here, who is the actor in this whole drama, who caused the whole problem: Joe Francis.”

Francis, he said, pled guilty and admitted in court that his business practice was to film minors. He did so 150 times over a number of years.

“Consistency shows intent. If you’re consistently doing wrong then you are intentionally doing wrong.”

He talked again about Schmitz’s testimony that Francis had a private child pornography collection.

“Who had the personal responsibility for the harm done here? One person: Joe Francis.”

The defense, he said, attacks the victims. They said these girls were hoping to hit the lottery. This was all a big conspiracy. He said it was hard to believe that these girls would destroy the last decade of their lives as a tactic to be used in a lawsuit against Joe Francis.

“Who already won the lottery here? Joe Francis won the lottery. He put millions of dollars in his pocket because he targeted minors. If it isn’t taken away, he will keep it. There is an opportunity here. What is more outrageous conduct then child pornography? I can’t think of anything worse.”

He said a strong verdict would give teeth to the laws protecting children from pornographers.

“You looked into the eyeballs of all of these victims. Were they crying just for your benefit?”

He said the jurors were able to see Francis’s true character in court as he questioned the girls on the stand.

“That was a predator in action in this courtroom.”

The defense said the plaintiffs’ experts were biased.

“Dr. Lebowitz is biased? Is she supposed to like Joe Francis? Is she supposed to like a guy who causes trauma to minors? Of course not. This is not about liking Joe Francis. This is about what he did and whether we need to punish him and take away the profit for what he did.”

Lebowitz explained why the girls were reluctant to come forward earlier: trauma victims don’t talk about the trauma.

The defense, he said, called the experts’ testimony “excuses.”

“This is just the predator trying to put the victim on trial. You heard the testimony. This was not an excuse. It’s the truth.”

He said the science was there to explain a child’s lack of mental development and the reason why they are vulnerable.

“It’s the mechanism by which someone like this predator can take advantage of these victims, of these minors, of vulnerable girls.”

He said it was like saying a physical handicap is an excuse.

“A handicap is not an excuse,” Selander said, sounding outraged that anyone could make that argument, even though he was the only one suggesting it. “A handicap is a condition that can be taken advantage of.”

He lifted his fist as if to pound it on the podium, but caught himself.

Their experts, he said, were the people with the best knowledge of these issues, conditions and trauma. But since the defense couldn’t bring any witnesses to contradict the plaintiffs’ experts, they had to blame the plaintiffs’ parents.

“They need to blame the parents for the intentional actions of a convicted child pornographer, a 150-time convicted child pornographer.”

The plaintiffs had to prove that GGW and Francis acted outrageously.

“Is there anything more outrageous, anything more atrocious, than child pornography?”

He agreed with Seaton-Virga that punitive damages couldn’t be used to bankrupt a company. He said there was little chance of crippling a company that made hundreds of millions from videos, internet, Pay-per-View, “A whole lot of different things.

“They have lots of money.”

The base award, he said, should be what the company profited off the videos of the three plaintiffs.

“They keep it, they won.”

He said Francis knew the laws prohibiting the use of minors in pornographic films.

“He had a choice to comply with the law and lose those vulnerable victims or ignore the law and make huge profits. He built this huge empire by employing a business practice founded on a consistent and intentional violation of the law. He made many, many millions of dollars by exploiting minors.