The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (7 page)
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Authors: David Angier
“Welcome aboard,” U.S. District Judge Robert Hinkle told Smoak. “I knew when I heard about your appointment that you’d be a wonderful judge and would fit right in. I didn’t realize until I heard the remarks of Mr. McCloy that you are a humorless dullard like the rest of us.”
On August 1, 2005, Pam Smoak died. She was a tall, determined woman with piercing eyes under wavy white hair, but she softened tremendously when she smiled. She and Richard Smoak had met and married in the 1970s and raised two daughters together, which spoke volumes for the type of man Richard Smoak was. Pam Smoak was not the type to suffer fools.
She’d worked in the State Attorney’s Office for 20 years and had considered running for the top spot until cancer rearranged her life. Even from her deathbed, she was directing the creation and organization of the Gulf Coast Children’s Advocacy Center, where victims of abuse would be cared for.
After her death, now-Federal Judge Richard Smoak continued to work and take his usual miles-long walks at a military pace along Panama City’s most scenic street, Beach Drive, which is bordered by magnificent homes on one side and St. Andrew Bay on the other. But now he kept his eyes fixed ahead of him during these walks, and stomped the pavement as if he was trying to level the ground.
The evening of January 26, 2006, I was playing poker with a group of lawyers when I overheard a conversation between two attorneys about Joe Francis’ state criminal case.
“What nixed the plea?” someone asked.
Those words got my attention. I hadn’t heard of a plea. I hadn’t heard of a plea offer.
Turns out, the deal was supposed to have gone through that afternoon.
The prosecutors’ office had even scheduled a celebration at a downtown restaurant. They kept the date, even though the plea had fallen through. When I called Joe Grammer, the office spokesman, it was obvious that he was at his daughter’s soccer game.
“So Joe, what killed the Joe Francis plea?”
“The family,” he said.
“The victims’ family?” I asked
“If you want to call them that,” he said. “Seems they’ve hired a publicist.”
The rest of what he said was drowned out by the roar of the crowd. Somebody must have scored.
“You’ll have plenty to write about when the motions start getting filed,” he said. “Looks like a trial is unavoidable at this point.”
I hung up and turned back to the poker table.
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T
hey had threatened to go to Oprah.
In March 2006, Joe Francis’ lawyer, Tom Julin, filed a motion in the federal lawsuit accusing Panama City lawyer Ross McCloy and Chicago attorney Tom Dent of sabotaging the plea in the state criminal case to keep the upper hand in the lawsuit.
Francis had worked out a plea and was on his way to Panama City in January 2006 to enter into it, when the deal suddenly fell apart.
Dent, Julin said, wanted the criminal case in place so he could use it as leverage in negotiations for a multi-million dollar settlement.
Julin said Dent called him in March and offered his clients’ help with Francis’ criminal problems in exchange for several million dollars.
Julin also included Dent’s Panama City law partner in this case into his motion –McCloy, a respected lawyer in the area and the judge’s close personal friend.
On April 28, 2006, federal Judge Richard Smoak convened a hearing to hear Julin’s argument. The hearing started poorly for Julin and only got worse.
Smoak entered the courtroom and took his seat. Close-cropped salt-and-pepper hair framed a square face. He favored bow ties, often in reds or yellows, that perched over black judicial robes. The robes were fitted to Smoak’s blocky frame and didn’t swish as he entered the room. Smoak wasn’t a swishy kind of person, and he took his seat quickly without looking at the assembly.
A lawyer for 32 years and a life-long military man in thought and actions, Smoak took matters of honor and decorum very seriously.
Smoak had been on the bench for less than a year when he was assigned Joe Francis and the Girls Gone Wild lawsuit.
“I’m very concerned,” Smoak repeated numerous times at the end of the 2006 hearing. He was concerned by Julin’s motion, which accused Dent and McCloy of some serious ethical failings. And he was concerned by the lack of evidence Julin produced at the four-hour hearing, especially the fact that Julin didn’t call any of the prosecutors to the stand to back up his allegation.
Dent denied threatening the prosecutors. He said it was actually one of his client’s parents who told the State Attorney’s Office that she’d take her complaints to Oprah Winfrey if they went through with the plea.
Dent said he’d heard that prosecutors Mark Graham and Larry Basford had agreed to throw out all the felony charges against Francis if he’d cop out to a single misdemeanor. The family member was outraged that the State Attorney’s Office would offer such a favorable deal.
State Attorney spokesman Joe Grammer denied that to me. He said at least one of the 42 felonies was included in the deal.
Whatever the case, at the end of the day, Smoak denied Julin’s motion to disqualify McCloy and Dent.
He then asked Julin’s law partner, Barry Davidson, if their firm had an ethics board. Davidson said he was in charge of that board.
Smoak instructed Davidson to take a close look at Julin’s actions and review them for ethical violations.
He then went a giant step further. He re-opened the civil case and told the lawyers they were going to get this case resolved.
The lawsuit had been put on hold in November 2003 so the criminal case could be resolved without interference from the civil lawyers. But as the criminal case dragged into its third year, Dent became restless.
He asked three times for the stay to be lifted so they could resolve the lawsuit. He punctuated his most ardent motion by saying he had a client that was so distraught by the long stay that she’d cut her wrists and had to be rushed to the hospital.
Two federal judges, Smoak and U.S. District Judge M. Casey Rodgers, both denied his requests to re-open the case.
But after Julin’s motion, Smoak’s irritation with Francis’ lawyer carried over to this other issue and, without being asked again, Smoak said “We’ll get this case on the road.”
That decision probably had less to do with Julin questioning his opponents’ integrity and more with the way Julin wrote his motion – and the fact that Smoak’s clerks had told him that I knew about the motion in advance and was waiting for its arrival on the day it was filed.
To Judge Smoak, it looked like smear tactics.
Smoak’s voice became menacing when he asked if Julin or anyone associated with his defense team had tipped the media to the pending motion.
Julin said he hadn’t and couldn’t say if someone else had.
He hadn’t. Dyer had called me the day the motion was to be filed and tip-toed around the issue.
He called while I was engrossed in a story about red snapper regulations in the upcoming fishing season. I answered the phone automatically, but was really concentrating on the snapper story. These things can be somewhat complicated.
“Did I catch you at a bad time?” Dyer asked after several minutes of a fairly one-sided conversation. I was hesitant to tell him what I was so distracted by – I felt I should have a better excuse.
“No, no. Just working on a story. I’ll get out of it.”
“I can call you back,” Dyer said, his voice carrying that ever-present note of humor.
“No, no. I’m okay now. What’s up?”
He wouldn’t tell me what was in the motion, but said it had to do with the plea agreement.
“Check out the motion,” Dyer said. “I think you’ll find it interesting.”
Julin had devoted six pages to blasting the alleged victims’ character and reliability as witnesses. He wrote that the girls were changing their stories now, making them seem more like victims.
In the beginning, three, possibly four of the girls admitted lying to a cameraman about their age and signing a release saying they were 18. Now they were backtracking, saying the cameraman made them lie.
Julin wrote that Girls Gone Wild was the real victim here – victims of fraud.
A year later, over blackened tuna and fried oysters on the deck at Uncle Ernie’s restaurant in Panama City, Dyer and Mantra corporate attorney Michael Burke talked about the real issue behind that motion.
McCloy’s law partner was Franklin Harrison, who was representing the Sheriff’s Office in the forfeiture issue with Joe Francis. Burke said McCloy and Dent got access to the Sheriff’s Office’s files through Harrison and were able to add three plaintiffs by going through investigative files.
Not only that, when the plea deal was set to happen, McCloy sent notice to the Sheriff’s Office and State Attorney’s Office that they would require those agencies to keep all their records to be turned over to the plaintiffs as soon as they resolved the criminal case.
The notice was significant in its timing because there was a stay on discovery in the case. Burke said that meant nothing was supposed to happen. He said it looked more like the plaintiffs were trying to intimidate law enforcement into canceling the deal.
McCloy said at the hearing that they were just making sure the Sheriff’s Office and State Attorney’s Office didn’t dispose of valuable records after resolving the case.
Julin’s motion, however, continued to irk Smoak even a year later, when he put Francis in jail for contempt of court.
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A
aron Dyer called again when I was deep in thought, but this time I was working on a GGW story. A big one.
“Watcha doin’? Workin’ on anything interesting? Got any hot stories goin’ on out there?”
“You’re giddy. I’m gonna write that in the story: ‘Aaron Dyer was giddy.’”
“That’s how most people describe me: giddy,” he laughed.
Dyer had every right to be happy. It was July 25, 2006, and Circuit Judge Dedee Costello had just thrown out all the evidence the Bay County Sheriff’s Office gathered in raids of the condominiums. The videos, which made up all the tangible evidence, were gone.
If the State Attorney’s Office wanted to go forward, it would have to rely heavily on the testimony of victims who they were quickly losing faith in.
“They’ve got problems of their own with the girls in this case,” Dyer said.
He refused to give me anything good for the next day’s story. He knew he was close to ending this case and he would do nothing to upset that.
“When this is all over, we’ll sit down and chat,” he said.
The next day would decide a lot about how the criminal case would play out.
When I called State Attorney Steve Meadows he sounded relieved that it might be over.
A plea was the prosecutor’s last best chance to justify three years of expense and investigation.
Girls Gone Wild was the most voluminous, most talked-about case in Bay County history. It seemed so close to resolution, no one could have imagined that the case would drag on another three years.
The next day, Judge Costello signed and released her official ruling. The order itself was written by Aaron Dyer and Larry Simpson. It was scathing.
“All I want to know,” I told Dyer, “is who wrote the inflammatory things about Richard Bagwell.”
Sheriff’s Investigator Bagwell had been in charge of the investigation and had applied for the warrants at the time of Francis’ arrest to search the four condos being used by Girls Gone Wild employees.
The defense motions were strongly worded concerning Bagwell’s warrants, but the order was brutal. The judge said that either Bagwell had lied to the judge who signed the warrants – which, by the way, had been Costello and County Judge Elijah Smiley – or had been recklessly unconcerned by the facts.
“That was the court’s wording,” Dyer answered. “Well, most of it was taken from the motions.”
Under Florida law, there have to be at least two criminal incidents to support a probable cause affidavit for racketeering. Prosecutors were saying that Francis had supplemented the legal part of his video business by targeting minors to include in the tapes.