The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (19 page)

He said in his order that Downing distorted the legal question of recusal – whether a well-informed bystander would see the judge’s actions as biased – to whether “public opinion” would see them so.

“Even if I were to assume that ‘public perception’ is a relevant consideration in assessing the merits of the pending motion,” Smoak wrote, “defendants have failed to submit evidence that the public does indeed perceive me as biased against Joe Francis.”

Then Smoak addressed “settle or jail,” The News Herald’s headline on the day that Smoak found Francis to be in civil contempt of court.

“Simply stated, my order did not require that Joe Francis settle the lawsuit; rather, it unambiguously required that Joe Francis mediate his case in good faith after I found him in civil contempt for exploiting a court-ordered mediation. I can only assume that Angier, a non-attorney, misunderstood the difference between requiring a party to settle a case and requiring a party to mediate a case in good faith when he wrote the ‘settle or jail’ article.”

What Smoak left out of this explanation was his exchange in the civil contempt hearing with Michael Burke. Smoak had ordered Francis to jail for contempt until such time that the parties could convene for “meaningful mediation.” Smoak said in the hearing that it would probably take a few days for a mediator to be lined up and the parties put into place, during that time Francis would be in jail.

“I had no inclination to punish Francis or to cause him to ‘lose’ the civil lawsuit,” Smoak wrote. “That sanction imposed was simply intended to force Joe Francis to obey an order of this Court – my order to mediate.”

Next item, the judge’s comment on Francis’ language during mediation. Smoak had commented in the hearing that Francis’ behavior was the worst he’s seen in his career. Smoak scoffed at Francis’ lawyer’s characterization of the behavior as “colorful.”

“Perhaps the next time any of us are at our mother’s dinner table and we talk like Mr. Francis, we can simply tell our mother that we’re just ‘being colorful’ and see how that flies,” Smoak said.

He defended those statements as the truth, not bias.

He went through Francis’ actions during that belated mediation point-by-point, from the bare feet and profanity laced tirade to the only proposal Francis made that day – “suck my dick!”

“How defense counsel can reasonably question my characterization of these events is astounding,” Smoak wrote. “Not only had I never witnessed or experienced such vile behavior by a litigant at a court-ordered function in my long career as an attorney and mediator, but plaintiffs’ counsel all testified that neither had they.

“Simply put, Francis’ behavior was not mediation. It was not posturing. It was violent. Anyone attending that mediation, including Joe Francis himself, could have been injured. I will not permit a litigant in this federal court to exploit an order issued by me for the sole purpose of abusing and threatening another party.”

Smoak wrote that his order to incarcerate Francis had been the right one. His mistake, he said, was in delaying that order because Francis’ attorneys told him a settlement offer had been made.

Then Smoak gets into the dicey part of the negotiations. On March 31, 2007, Francis made an unconditional offer to the plaintiffs. As the negotiations continued, he added conditions that “substantially and materially decreased the dollar amount of the offer.

“In other words, even under a threat of incarceration, Francis had unlawfully revoked his unconditional offer after it had already been accepted,” Smoak wrote. “Francis had also fled.”

Actually, he left Panama City to spend his birthday with his girlfriend in Miami.

Smoak never mentioned why the plaintiffs’ lawyers would break the silence of mediation to complain about the conditions that Francis had attached to the offer.

The cheerleader withdrew her lawsuit in late 2008 when Francis threatened her with a countersuit. The lawyers and judges called it a “settlement,” but when I wrote that in the newspaper, Francis called to complain. The next day we ran another story under the headline “Don’t call it a settlement.” Francis wanted everyone to know that this case was an unequivocal victory.

Less than a month after Downing filed her motion to recuse in Pitts’ case, a similar motion was filed in the Plaintiff B case. This one didn’t hint that Smoak might be perceived as biased based on popular opinion. Attorney Ross Babbitt wrote that the strongest evidence that Smoak was biased was the fact that Plaintiff B’s lawyers were the same ones who had manipulated Smoak into forcing a settlement out of Francis in the 2003 lawsuit.

“The touchstone for this Court’s determination of this motion is the overwhelming appearance of bias that lawyers from all over this country clearly perceive to be in their favor in this court,” Babbitt wrote. “The evidence of that perception is further manifested in the hundreds upon hundreds of hours of attorney time the plaintiff’s lawyers claim to have invested in this case. It is clear that those lawyers are hoping to maneuver the defendants into an unfair bargaining position to extract an extortionate settlement from the defendants (as they have in the past), irrespective of the merits of their case. And those lawyers can only hope to do that with the help of this Court, which they perceive to be biased in their favor.”

Babbitt said a recent ruling by Smoak denying a defense motion that was clearly supported by law was evidence of bias.

“That two-page Order from this federal court, which addresses none of the legal arguments Defendants raised in their Motion For Judgment on the Pleadings, is predicated on the incorrect legal standard, and even contains misspellings and typographical errors, is further evidence which would tend to support an impartial observer’s perception that this Court is biased against these defendants.”

That’s about as disrespectful as a lawyer gets in addressing a federal judge. But Smoak’s ruling did not rise to the bait. He kept his composure and denied the motion.

His reasons for wanting to stay on the case were not expressed, but he was determined to prove that he had not been biased and was not going to be anything but fair in dealing with Francis.

And the Plaintiff B case was not going anywhere. Smoak had already denied a motion to dismiss the case. Francis’ lawyers, who were struggling to keep him happy while working both the lawsuit and the tax evasion case, weren’t providing the plaintiffs with the materials they’d demanded, despite three warnings from a magistrate judge to turn over the paperwork.

On March 18, 2009, Francis’ third attorney, Rick Bateman of Tallahassee, went before Smoak after just a few weeks on the case.

Bateman, who propped his reading glasses up on his brow when he wanted them out of the way then dropped them into place with a quick nod of his head, was constantly in motion during the hearing. When Selander or Dent were making their arguments, Bateman would shoot to his feet, sit back down, stand up and walk to the podium next to the other attorney and stand with his hands on his hips sighing or grumbling, seemingly incapable of containing his outrage at what he was hearing.

His mannerisms aside, he was thoroughly prepared for the hearing and Smoak was satisfied that Bateman had righted the ship.

Bateman assured Smoak that he could and would control Francis and get the case to trial in July. He said the discovery in question was waiting for the plaintiffs, but he argued that there were certain documents that shouldn’t be provided because Francis, who was going to trial in the early part of July on federal tax evasion charges, had a right against incriminating himself by turning over financial documents to the plaintiffs that could end up in the government’s hands.

In May, the sides were scheduled to go before recently retired Florida Supreme Court Justice Kenneth Bell for mediation.

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Chapter 17

“War”

“T
hey fucked with the wrong guy!”

It’s the same old Joe.

“Whatcha doin?” I’d asked when I got connected to Francis on August 19, 2008. He’d just filed letters of intent to sue Bay County officials and a separate lawsuit seeking to rescind the 2003 lawsuit settlement.

“What do you think I’m doing?” Francis answered.

“I think you’re sitting around having a drink and a smoking a cigar.”

“I’m getting ready to go to war.”

The Francis camp had been throwing the word “war” around for days. On this day, Francis had opened three fronts: he’d filed a lavishly written lawsuit to rescind the settlement; two complaints to Bay County officials putting them on notice that they were in line for a lawsuit; and started a Web campaign to impeach U.S. District Judge Richard Smoak.

Francis didn’t wait long to get to the point of his call – the same point he always came to in our conversations.

“People are gonna hate me out there, aren’t they?” he asked, nearly giggling. “What are they saying?”

“I don’t know, nobody’s returning my calls.”

I was on deadline and wanted to ask him a few questions on the record.

“The one thing everybody is gonna ask me,” I started, “is why can’t Joe Francis let this go?”

“Let it go?” he spat it out like sour milk. “They took millions of dollars from me. They damaged my business and my reputation and they’re going to pay. It’s disgusting what they did to me.”

Earlier in the day, former Panama City Beach mayor and now conservative talk show host Lee Sullivan snorted when I told him Joe Francis accused him of damaging his reputation.

“You run an empire that’s built off selling videos of little girls, or young women if you want to press the point, exposing their private parts, and I’ve done what?” he laughed in a series of short, deep bursts. “I guess I’ll just have to deal with that.”

Sullivan took a deep breath and started, very slowly, to lay out a quote for me. He started by facetiously praising Joe Francis “as the champion of American morality and virtue.” He said he hoped Joe would be able to find the time to continue to “fight for truth, justice and the American way when he’s not busy filming various women in states of undress.”

Sullivan was still laughing when he hung up the phone.

Every change in this case began with changes in the lawyers, usually because the lawyers wouldn’t risk their careers by doing exactly what Francis wanted them to do.

Michael Burke and Lisa Shulman were with Mantra Films Inc. for years, but both left abruptly in August 2008. Shulman wrote in a motion to withdraw from a federal case “that there comes a time when a lawyer and client no longer see things the same.”

Burke said something similar a few days later over the phone. He said the lawsuit to rescind the settlement had been around for more than a year, since Francis signed the settlement. It was first drafted by Francis’ longtime criminal defense lawyer, Aaron Dyer.

The one filed in August, however, was significantly different. Francis’ federal tax case hadn’t resolved itself with a favorable plea the way he’d said it would in March.

The case was instead moving slowly toward trial. Everything that happened before and after the charges were filed could have some impact on a potential sentence. Insulting a federal judge in one venue while facing a federal judge in another was not wise.

And Francis’ filings were insulting. They were also ludicrous:

“In duplicitous treachery only the dogmatic and rigid can embrace, the local powers that be publicly threaten to arrest and imprison the young Californian if he steps foot in their town to simply observe and capture for the world the very spring break behavior that Panama City uses to stuff its pockets and placate the tax concerned locals,” attorney Robert Barnes wrote in the lawsuit to rescind. “Southern injustice, sadly symbolic for centuries as a land without law, where guns and gavels too easily replaced law and logic, where the robe and the tree too often substituted for the rule of law and the Bill of Rights, reared again.”

It goes on and on, claiming at one point that Ross McCloy and his co-counsel in Chicago somehow knew years in advance that President Bush would appoint Smoak as Panama City’s federal judge.