The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (5 page)

“Defendant Schmitz was then and there informed that the four girls who’d just flashed were under the age of 18.” But, according to the lawsuit, the cameraman went ahead and offered to pay the girls to accompany him to a motel room where they’d be videotaped having sex with each other. They went to the motel, where Joe Francis met them.

Francis was then told the girls were underage, according to the lawsuit, but he ignored that fact and offered two of the girls $100 each to have sex with each other and allow a cameraman to film it.

Those two girls went with the cameraman to the bathroom. The girls disrobed and got into the shower together and the “shower scene” was born. Two other girls remained in the other room with Francis, who promptly offered them $50 each to masturbate him.

The four plaintiffs claimed child abuse, sexual promotion of children, racketeering, infliction of emotional pain and coercion into prostitution.

Panama City attorney Dixon Ross McCloy Jr., who never uses his first name and complained to me once that even his mother didn’t know who I was talking about when I wrote out his full name in a story, filed the lawsuit along with Chicago attorney Tom Dent.

A few months later, a federal judge ordered that all work on the lawsuit come to a halt until the criminal case involving the same girls came to an end.

Well away from Panama City, in the early morning hours of January 22, 2004, Joe Francis became the victim of a crime himself. As he walked in his front door after a night out, a masked man with a gun came out of his kitchen.

Darnell Riley took Francis on a “shopping spree” in Francis’ house, picking out things he wanted to steal and putting them into two designer bags. Riley then took Francis into a bedroom and with gun in one hand and a video recorder in the other, he made Francis lay face down on a bed, with his butt exposed, a sex toy next to him and tell the camera that he liked taking it in the ass. Riley then demanded $300,000 or he’d put the video on the internet.

Riley wasn’t caught until almost a year later, though for the next six months he called Francis and tried to extort money from him. Riley was caught when Paris Hilton, Francis’ ex-girlfriend, overheard some people talking about the incident at a party.

Riley was arrested and charged with burglary, robbery, kidnapping, extortion and carjacking. Convicted at trial, he was sentenced to 10 years in prison.

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Chapter 6

“Insidious and depraved”

T
he afternoon of March 3, 2004, Circuit Judge Michael Overstreet had a sentencing scheduled before hearing the first of the key motions in the Girls Gone Wild case. Off the bench, Overstreet was soft-spoken, cerebral and deeply Zen man who took Chinese herbal supplements to ward off disease. He stayed slim by climbing mountains and paddling a kayak around the bay on weekends.

On the bench, Overstreet was a patient judge as long as the lawyers worked on his schedule. He expected them there on time and ready the minute he was.

On this day, George Thrasher, a thoroughly pathetic old man, was in Overstreet’s court for sentencing on 78 counts of possessing child pornography.

Overstreet had thought long and hard about Thrasher’s sentence and had written what he wanted to say. Now, he leaned forward and looked down from the bench. His voice cracked with emotion and he stared hard at the stooped, thin, graying man standing before him.

“When evaluating the shortcomings of the human condition it’s difficult to find more insidious and depraved behavior than the child porn trade,” he said.

“I saw these pictures,” Overstreet continued. “There were babies, infants, adolescents in these photographs. And what I found incredible was, almost to the last child, their eyes gave away everything.

“I saw horror in their eyes. I saw their fear, their physical pain – physical pain. And I saw the look of betrayal in their eyes.”

Thrasher was looking at a maximum sentence of five years in prison for each charge – 390 years total. He was remarkably unfazed.

His attorney argued that the Websites that produced the images were still in business, still producing photos that could be accessed by anyone with a computer.

Overstreet said customers like Thrasher kept the child pornography business thriving.

“No one who intentionally participates in this market, either as a producer or a consumer such as Mr. Thrasher is entitled to anything less than the most severe sanction this court can lawfully impose.”

Thrasher was looking at 390 years in prison and that’s what he got. It was the longest sentence ever handed down by a Bay County judge. In Bay County, they don’t expect a defendant to be able to complete a sentence like that, only do the best they can.

In the hallway outside the courtroom, the Girls Gone Wild defense team waited.

They stood in a circle in an alcove that had photographs of the circuit judges going back to the late 1800s. Tall, lanky Aaron Dyer was at the center of the team, directing the conversation in his easy, comfortable way. He was dressed for court, gray suit, yellow tie, briefcase, but as always he gave off an impression of such ease that he could have been arriving at a small get-together with friends.

I walked out of the courtroom, having covered Thrasher’s sentencing for the next day’s newspaper. I needed a break before changing gears for the GGW hearing.

“Be careful,” I told Dyer. “He just sentenced a guy to 390 years in prison.”

“What was the charge?” Dyer asked.

“Possession of child pornography.”

“I think we’ll tread as lightly as possible,” Dyer said.

Dyer was preparing to argue the first big motion in the criminal case. He wanted the judge to acknowledge that there was no law in Florida prohibiting the public exhibition of female breasts, even underage female breasts.

It was a theory that he’d broached early in the proceedings, but now the defense had run into a stone wall and they needed a ruling. The lawyers wanted to have copies of videotapes. The sheriff’s office and prosecutors were refusing, saying most of the tapes were contraband – obscene material or child pornography that they couldn’t legally copy and disseminate.

The only way to resolve the matter was have Overstreet decide what was illegal about the tapes.

“If it’s a minor it doesn’t matter,” Dyer said in an earlier hearing. “It doesn’t become child pornography when you’re just dealing with nudity.”

Overstreet had previously rejected that argument, but he’d left the door open for the lawyers to raise it again. Five months later, the lawyers were ready to do just that.

The Thrasher crowd cleared out and Dyer led his group in. Overstreet returned to the bench and looked down at the group. He was composed and at ease. The Thrasher sentencing was behind him and he’d moved on.

Dyer started the hearing by saying the issue had already been decided by a federal judge in Orlando, who ruled in a GGW lawsuit that there was no law in Florida that made simple public nudity, above the waist, illegal even if the one who was nude was younger than 18.

The nudity had to be accompanied by some act that could be considered sexual conduct.

Overstreet asked prosecutor Dustin Stephenson about the statute, which was pretty clear in stating that there had to be some kind of touching associated with the exposed breasts to make it illegal.

Stephenson, who was filling in for lead prosecutor Mark Graham, acknowledged that there was no touching, but argued that the circumstances were sexually suggestive.

“We’re talking about more than just a sterile viewing of the female breast,” he said.

Dyer showed Overstreet the video at the center of the hearing. It showed the cameraman’s first meeting with the four girls who would later go to the Chateau Motel and become the center of the criminal case. He was trying to get one of them to flash. Her friends, in the background, harassed and teased her about how willing she is to expose herself in other situations.

Dyer said he needed to have that tape so the audio could be enhanced. For one thing, he said, the girl lied about her age to the cameraman, claiming to be 18. It’s defense evidence, Dyer said, and he wants to be able to examine it outside the watchful eyes of deputies.

Overstreet didn’t rule that day. He said he wanted a chance to review the law and arguments.

Less than a week later, he issued an order in favor of the defense. The wording of the ruling indicated that he wasn’t happy with what he had to do. He wrote that there were harmful consequences to a minor who has been videotaped this way and an argument could be made that there should be a law against it.

“To date, our Legislature has elected not to criminalize the promotion or possession of images of this nature,” Overstreet wrote in his ruling.

“This is a really big ruling for the case,” Dyer told me a short time later. “It eliminates 90-percent of the state’s so-called evidence.

“Eventually, I’m sure this will lead to motions to dismiss charges. But the real issue is that the main charge brought by the state, the racketeering charge, is based upon conduct that is entirely legitimate. When a girl lies about her age and flashes for the camera, the cameraman and the company have no liability whatsoever.”

Actually, the ruling had very little immediate impact on the case. Dyer didn’t even ask for the tape.

But he made the most of the positive press, to the point where Mark Graham felt the need to write a letter warning him that talking about the material facts in a pending case could lead to serious consequences.

Graham sent the letter to judges and lawyers in town, but not Dyer. He knew, eventually, the letter would make it to the newspaper. And it did.

“I’d like to comment on the letter, David,” Dyer told me when I called for a quote, “but I haven’t seen it.”

His interviews on national television seemed to indicate that the ruling was essential, but Dyer didn’t asked for any of the charges to be dropped.

“You’re going to drop the flashing charges?” I asked Mark Graham sometime later. We were in court for a case that had nothing to do with Girls Gone Wild, but Joe Francis had been placed on the docket for that afternoon. Placed, then removed. That had happened more than once in the months following Judge Overstreet’s ruling.

Graham said it bothered him that he wouldn’t be able to pursue charges against Francis that involved underage girls exposing themselves to the cameras in public.

Many, many charges would have to be abandoned. Graham recognized this, but reluctantly. Then he shrugged off those thoughts and got back to the conversation.

“We’re going to concentrate on the filming in the motel room.”

“But you’re going to drop the flashing charges?”

“We’re going to concentrate on the filming in the room,” he said again, making it clear that I could ask the question all day and he’d answer it the same way every time.

“Is Francis charged with a lewd and lascivious, with the two girls that he paid?”

“No. He’s charged with soliciting minors for prostitution.”

“Why not? I figured L and L was a given because of the contact.”

Lewd and lascivious is, essentially, sexual contact between an adult and a minor. Ignorance of age isn’t a defense.

“L and L applies to victims under 16. The girls in the room were both 17,” Graham said. “Even the soliciting charge has some interesting legal argument. Apparently, the language applies to a third person, like a pimp, soliciting a minor for prostitution with someone else.”

“This case is full of interesting arguments,” I said.

“Yeah, for you,” he said, walking away.

In July 2004, the circuit judges had a redistribution of cases. Instead of two judges handling all of the felony cases in Bay County, four judges would now split the duties.

Judge Dedee Costello, who had until then been on the civil forfeiture case, also took over the Girls Gone Wild criminal case from Judge Overstreet.

The switch from Overstreet to Costello was more than just a name change.

Overstreet had been on the criminal bench for a little less than two years. He’d spent most of his career presiding over civil cases, which is usually more orderly, predictable and cerebral than criminal court. Overstreet was certainly a thinker, but he was also more emotional than Costello – especially when it came to matters dealing with children.

At the time of the GGW case, Overstreet was in his second marriage. His first wife died tragically, leaving him to care for their daughter. A few years later he met Paula Barbieri, the onetime girlfriend of O.J. Simpson. The mountain climbing, boyish-looking Overstreet and the beautiful model started an odd-couple relationship that led to marriage and another daughter.

Overstreet was a man surrounded by and protective of women.

He was also unpredictable on the bench.

In 2004, Overstreet did the unthinkable in Bay County – he gave a man convicted of first-degree murder and facing the death penalty a new trial. Unthinkable because the normal course of action for local judges was to deny controversial motions and send them on to the appeals court. If the ruling was overturned, the local judge – who is an elected official – could blame the “liberal” appeals court.