Read The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." Online
Authors: David Angier
The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (26 page)
“I informed Defendants that this would be the final extension granted to Defendants as they had already had months to secure counsel and had already received two 30-day extensions. I again reminded Defendants that jury trial would be held during the third or fourth week of the first calendar month following the date a decision was rendered by the 11th Circuit on Plaintiff’s appeal. I also advised Defendant Francis that if he chose to proceed (without a lawyer), trial would not be delayed if he acquired counsel after the September 10, 2010, deadline.
“Defendants have failed to demonstrate good cause to continue the trial. I warned Defendants five times over the past year that the trial would be scheduled the third or fourth week of the calendar month following the date a decision was rendered by the 11th Circuit.
“I granted three motions for extension of time by Defendants. Now, on the eve of trial and the pretrial conference, which is scheduled in two business days, Defendants request their fourth 30-day extension. Defendants have failed to show extenuating circumstances why one year has been insufficient time to retain counsel. A year is ample time for any corporation or individual to retain counsel and prepare for trial. Defendants had fair warning of the consequences of failing to cause counsel to appear and fair notice of when the trial would be scheduled. In addition, admittance of an attorney to the Northern District of Florida is perfunctory and could easily be accomplished in a very few days by any attorney before the March 28, 2011, trial date. Thus, this additional reason Defendants have offered for failing to secure counsel also fails to provide sufficient grounds for a continuance. Furthermore, this case was filed in March of 2008, almost exactly three years ago to the day. This is markedly longer than it takes the average civil case in the Northern District of Florida to reach trial.
“It is time for this case to be put before a jury.”
When the News Herald ran the story about Francis’ motion for continuance being denied, it posted the story on its website. As usual, it got a lot of comments:
bobsmith32405 took the unpopular position that “the best thing for us all would be for Francis to settle. Pick a large number, write the check. Save the taxpayers’ money for the trial and the county the embarrassment.”
pcb999 asked, “who’s paying these wannabe amateur porn stars’ legal fees? I hope they get a big judgment for getting naked on film by their own choice and never are able to collect.
“Someone should post these girls’ Facebook pages. I’m sure that would blow their case.”
bchphotographer wrote, “After it’s done and said, Joe Francis should sue these so called innocent girls.”
The News Herald’s readers often complained about the paper’s coverage of the Girls Gone Wild case and repeatedly claimed they were tired of it. But Joe Francis always got a lot of responses and, for the most part, the comments were on his side.
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T
he morning of March 15, my first stop on the federal courthouse’s second floor was the clerk’s office to read up on the latest filings. There were quite a few. I printed off 28 pages and went to the window to pay. The feds only charged 10 cents per page for copies, which was the best price in town, but they made up the difference by not having a cash drawer.
“We don’t have change,” the girl told me when I handed her a five dollar bill. They never had change. They probably owed me $100 in change.
“That’s OK,” I said, my usual line. “I need the copies more than I need the change.”
I took a seat in the second row of the courtroom and Chris Olwell, the new courts reporter for the News Herald, sat down beside me.
“I get the feeling this is going to be the end of the road for this case,” Olwell said.
I had to agree. All morning I’d been nervous about this hearing. There was every possibility that Joe Francis was going to default, or worse settle, and that would be the end of the book. Default would mean a dry, cursory hearing before the judge to determine damages.
Plaintiffs’ lawyers Ross McCloy, Larry Selander, Rachael Pontikes, Tom Dent and two people I didn’t know came in the room.
U.S District Judge Richard Smoak entered the courtroom from behind his bench and took a quick, meaningful look at the defense table. The table’s glossy blond wood was uncluttered by file folders and loose papers. All five of the padded wooden chairs were unburdened by defendants, lawyers and, more specifically, Joe Francis.
It was two weeks before trial in Panama City and Joe Francis was a no-show to the last scheduled pretrial hearing. His request for a continuance had been denied. No lawyer had notified the court that he would be sitting in Francis’ place. So, Joe Francis was expected to be in court.
Smoak let out his breath and placed several hard-bound files on his desk. He was dressed in a gray suit and bow tie.
On the other side of the room, Selander, Pontikes, Dent, and McCloy stood quietly by their seats waiting for Smoak.
“Please be seated,” the judge said and there was a unified shuffling as everyone in the room took their seats.
“Mr. Selander, did everyone make it OK from Chicago? You didn’t leave anyone behind?” Smoak asked. Selander, Dent and Pontikes were based in Chicago.
“No sir. We’re all here,” Selander replied with a laugh.
The main door to the courtroom opened and there was a pause as everyone glanced over. A U.S. Deputy Marshal took a long, quiet stride into the room and took a seat immediately by the door.
Francis had been ordered to appear, but Smoak didn’t seem angry or even surprised at his absence.
Joe had given up. But that didn’t signify to Smoak that he’d waived all his rights. He’d basically waived his defenses, but the trial that was scheduled for March 28 would go ahead as planned with or without Joe Francis.
“With a jury,” Smoak emphasized.
Smoak said if Francis didn’t have a lawyer file a notice of appearance by midnight on behalf of Mantra Films and the other corporations, he would issue an order finding them in default. He would also allow a week for Francis to explain why he shouldn’t be in default. If Smoak issued an order of default judgment, it would strip the defendants of their defenses. The only issue then would be to decide how much the plaintiffs should receive in damages.
That didn’t seem significant in this case. Francis had already admitted to most of the charges, there really wasn’t a defense. But of more importance was Francis’ absence from the courtroom.
At trial, even a trial for damages, Francis’ side could still argue that the girls had not been harmed, or the harm was minimal. Also, without someone there to represent him, anything about the girls that Selander didn’t want shown – like the additional pornographic movies one of the defendants had made – would never be seen by the jury.
Selander and the plaintiffs would also be able to handpick the most favorable jury without objection from the defense.
In theory, it would be a cakewalk.
Selander, however, didn’t want a jury. He wanted Magistrate Jones to make a finding on damages.
“I’m not going to do this to Magistrate Jones,” Smoak said. “First, he’s not familiar with the case. Second, he’d never forgive me. I don’t think I ought to do it, given the record through many years of this case; Mr. Francis has found significant inference in far less profound issues. I don’t think it’s worth opening that can of worms.”
A jury verdict, he said, would be “beyond reproach.”
For the next hour, Selander gently argued that a jury trial would be too complicated and take too much time. Complicating a jury trial, he said, was the issue of anonymity. Because they’d won that issue and the girls would go to trial under their pseudonyms, jury selection would then be a mess. The lawyers wouldn’t be able to ask prospective jurors if they knew the girls, because they wouldn’t be able to use their names.
“If somebody did recognize the plaintiffs,” Selander said, “we would not want them to sit on the jury.”
In other words, anyone knowing these girls might not feel they deserved money for their interaction with Girls Gone Wild.
Selander said he would probably have the girls show up for a portion of jury selection to see if anyone on the panel recognized them. But the issues with anonymity went well beyond jury selection. Selander wanted to close the courtroom to spectators, not the press, when anyone was testifying who had information that could lead to the identification of the girls. That would mean, essentially, closing the courtroom during the entire trial.
Selander argued that someone discovering, for example, where one of the girls went to school could lead them to discovering her name by scouring yearbooks from the time that she attended.
Smoak was vehemently opposed to closing the courtroom for any reason. He firmly believed in open trials. He told Selander that he would have extra work on his hands to prepare his witnesses and assure that there would be no slip ups in their testimony.
“You may have to make more of an effort than perhaps you want to before we clear the courtroom,” Smoak said.
Selander assured the judge that he didn’t want a secret trial, that they’d never asked that the media be excluded.
Smoak asked him what assurances the press had given him that they wouldn’t reveal identifying information that came out by accident. Smoak also asked him if anyone had taken information in the court files and tried to identify the girls.
Selander said he didn’t know of anyone actively searching for the girls’ names and the only assurance he had from the press was that they “would abide by what you say.”
No one in the local media really cared who these girls were and were unlikely to release their names and risk litigation. The story had never been about the girls. It had always been about Joe Francis.
But Selander didn’t want spectators, especially at this time of year.
“With Spring Break going on in Panama City Beach at the same time Mr. Francis is on trial, what’s going to happen? We don’t know.”
Smoak refused to make a blanket ruling and said they’d take it up on a witness-by-witness basis. He asked Selander how long he would need to present his case, considering he would not have opposing counsel cross-examining witnesses.
“Two weeks.”
“What? Why?”
Selander said they had roughly 20 witnesses to call and some, especially the expert witnesses like the psychologists and forensic accountants, would need a long time on the stand.
In all fairness, Selander, Pontikes and the other lawyers had made good use of the year that the appeals court had taken to decide the anonymity issue. They had more than 100 witnesses and statements listed in evidence. They’d addressed the weaknesses that were so glaring in 2010. They listed several of Francis’ former attorneys as their witnesses, including Aaron Dyer and Michael Burke. They even listed two attorneys’ motions to withdraw from this case as evidence.
Smoak cautioned them to go easy on the jury, don’t overload them with useless information. And don’t drag this out any longer than needed, he said, “They’ll bless you for it.”
And as far as the jury issue was concerned:
“The conclusion of this long saga really needs to be with a finding by a jury.”
Amen.
That afternoon I stopped at Subway to get lunch. Standing in line, watching the woman make my sandwich, I was either deep in thought or really hungry. Either way, I didn’t realize attorneys Jim White and Mike Grabner were in line behind me until Grabner poked my shoulder.
“We’ve been saying terrible things about you back here. Didn’t you hear us?” he said.
“Sorry. I’m really focussed on my sandwich.”
I told them a little about that morning’s hearing.
“Hey,” I said, “I’m surprised he didn’t contact you guys about representing him.”
White had represented Francis during his contempt of court.
“He wouldn’t hire us,” White said. He was of the old school when it came to being a lawyer, he didn’t like to coddle clients. And Francis required a lot of coddling, so much so that Grabner had been retained to simply sit with him at the Bay County Jail while Francis was in solitary. “He said later it was the best money he’d ever spent.”
“I thought he already had a lawyer,” White said.
“Nope. That’s one of the issues in this whole thing. It looks like he’s giving up. He’s probably not even going to come to trial.”
“He’s an idiot. With just a small amount of lawyering those girls wouldn’t get a thing from a jury.”
“Actually, what I think would be funny is if a jury didn’t give them anything even without any lawyering at all.”
“That could happen.”
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I
f Joe Francis was going to give up, it wouldn’t be the first time, or even the first time in 2011. Amber Arpaio won a $3 million judgment from District Judge Joel Pisano in federal court in New Jersey on March 3. Francis had failed to respond to Arpaio’s lawsuit and Pisano ordered default judgment then heard the evidence himself and made the ruling.
