The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (44 page)

Pontikes objected to hearsay.

What about compliance efforts?

GGW has a federal monitor who was ordered into her position by Judge Smoak in 2006.

“Have you had any issues?”

Pontikes stood again, but this time instead of pausing, Deutsch answered more quickly.

“We have not.”

Pontikes again objected to hearsay.

Have the safeguards changed since 2002?

Pontikes stood again.

“It has,” Deutsch said then rushed through some of the changes.

Pontikes objected to relevance.

Is it important for the cameramen to understand the rules when it came to shooting scenes and getting the proper identification? Seaton-Virga asked.

“Failure to follow these policies can lead to termination or worse.”

“I tender the witness,” Seaton-Virga said, gathering up her notes and sitting down.

Pontikes asked Deutsch some background questions and then asked if he had any first-hand knowledge of what the policies were at GGW from 2000 through 2004?

He did not.

Was he aware that Francis had pled to producing 134 videos without the proper age identifying records?

“I am not.”

She brought up a printout from GGW’s Pilot Ware program, the second safeguard in the three-step process. She pointed out a name on the printout and asked him if, on the printout, there was a green light next to the name. A green light, she asked, would indicate that this footage had been cleared to go into production?

He agreed that there was a green light next to the name and a green light meant it had been cleared.

Pontikes asked him if the printout was dated April 1, 2009?

He looked at the date and agreed, that was what it showed.

“And a green light means go?”

Deutsch tried to get out that the software was just the second step in the process, but Pontikes only wanted to know if green meant go. He had to agree that it did.

Pontikes didn’t identify the name on the printout.

She then asked him if he’d read Ryan Simkin’s newly released book on GGW? He hadn’t, but he’d heard about it.

“Did you know that he talks about the remorse policy and calls it a joke?”

Seaton-Virga had objected several times to this line of questioning and Smoak finally sustained her objection. But it was out there.

Pontikes was done and Seaton-Virga approached the podium.

“Do you know Mr. Simkin?”

Yes.

While he was working for GGW, did he ever express any concerns over the remorse policy?

Not to me.

“Is GGW in litigation with Mr. Simkin over that particular book?”

Yes.

Deutsch was done on the stand. He could now go home to Los Angeles, his beloved Lakers and the family he missed so badly during his time in Panama City.

Smoak allowed the jurors to take a break so he could handle some issues with the lawyers.

Seaton-Virga’s next items of evidence were going to be portions of the plaintiffs’ depositions that she was going to read into the record. After that, they were going to have to resolve the issue of the videotapes.

Selander said they were still reading over the portions of the depositions that Seaton-Virga wanted to read. They would have to make their objections, and they were also entitled to have other portions read if they felt it presented a better balance to the testimony.

He suggested that they let the jury go home for the night, but they’d stay and argue the last big issue of the trial: the tapes. Smoak agreed and the jurors were sent home.

When the door closed, Pontikes rose from her seat.

“The defendants would like to admit the videos, over our objections,” she said.

“Plaintiff J and S’s footage,” Seaton-Virga said, walking toward the podium to stand beside Pontikes. “Also the footage of Plaintiff B, but not the actual sex act; the raw footage leading up to the point where Plaintiff B disrobes and, afterwards, where she states what she would be doing the rest of the night.”

B, she said, had testified that she was plied with alcohol and possibly drugged by GGW in order to get her to perform. Her statement after the sex, Seaton-Virga said, was indicative of her state of sobriety.

“She said,” Seaton-Virga began, then hesitated. “Well, I’ll just say it, she said, ‘I’m gonna go get fucked up tonight.’”

“We do object to that,” Pontikes told the judge. “We don’t see what purpose that serves.”

She said B and the other girl could be seen drinking out of red cups, which supported her contention that she was drunk. And, Pontikes pointed out that right before she made the “fucked up” comment B had said, “Did that really happen?”

“That shows that she hasn’t processed what had occurred,” Pontikes said. “Whether she was drunk or drugged, any small material things in these videos is outweighed by the prejudicial factors. Despite what the defendants will tell you, their real purpose in wanting to introduce these videos is to try to show that Plaintiff B was consenting.”

Strict liability, she said, makes the issue of consent irrelevant. Pontikes argued that consent was far more wide ranging than simply saying yes. She said showing that Plaintiff B was sober was implying consent. Showing that Plaintiff B willing went with the cameramen, willing disrobed, willing did anything in relation to being videotaped having sex was immaterial because it all implied consent and consent was irrelevant.

Nothing on the video will show anything that is relevant and would only go to confusing the jury as to the issue of consent, Pontikes argued.

“No matter what she’s doing on this tape, it’s inappropriate to show it.”

“But the tapes are the crux of this case,” Smoak said, echoing what Francis had said days before.

“Why wouldn’t it be material that the plaintiffs were lucid and steady and not offended and not weeping in shame?” Smoak asked. It had now become a debate between him and Pontikes. “The claim before this court is a damage claim, wouldn’t that have a bearing?”

No. The claim for damages was from the dissemination of the footage, and in V’s case the fear of dissemination, not the actual act that was filmed, Pontikes said.

Seaton-Virga reminded the court that the damage claim includes the filming, not just the aftermath.

Smoak said the plaintiffs had “painted a very dire picture” of their experience being filmed.

“The devastation they all testified about came about after the fact. Wouldn’t it be material to show that on the heels of exposure everybody was feeling pretty cool?” Smoak asked.

“I don’t see how that is relevant, your honor,” Pontikes answered.

“Why wouldn’t it be unfair to the defendants not to give the jury the best evidence of what really happened?”

Because the defendants are not allowed, by law, to argue consent, Pontikes persisted. The law plainly says that pornographers are responsible for making sure that the performers in their videos are adults. It doesn’t matter if a minor lies about her age or seeks out Girls Gone Wild, the onus is on the cameramen, producers and disseminators to make sure they don’t get on tape.

Smoak said he understood that, and if there was any misrepresentation of age included in the videos they would have to be taken out.

But Pontikes insisted that didn’t go far enough.

“Kids make mistakes,” she said, her voice catching a little. This was her most impassioned argument of the trial and while she wasn’t one to show her emotions, she certainly felt strongly about this. “Teenagers do stupid things. Things they regret. Allowing the defendants to use the videos in an effort to show consent is far more prejudicial than probative.”

She said the law doesn’t allow pornographers to defend themselves in child porn cases by saying there was a mistake of age.

Pontikes said the defendants want to challenge B’s claim that she was drunk. But showing that she didn’t appear to be drunk would only imply that she consented.

“Not being drunk means she wanted to do this, means consent,” she said.

Seaton-Virga said there is a claim by the plaintiffs that Joe Francis acted with intent or acted in an outrageous manner beyond the bounds of normal behavior. Those were things the plaintiffs would have to prove and one way of doing that was for Plaintiff B to tell the jurors that Girls Gone Wild had drugged her and then taken advantage of her.

She insisted that the jurors be shown the tapes to put the entire incident in perspective.

“The plaintiffs put this at issue, your honor,” Seaton-Virga said. “Plaintiff B said she was plied with drugs and alcohol. It goes to the outrageousness of GGW’s conduct. If it wasn’t relevant, they shouldn’t have put that at issue. Miss Pontikes asked the questions, and now she’s coming into court and asking you not to show the jury the tapes, which put this incident in context.

“The jury should be given the opportunity to judge for themselves whether she appears to be drugged.”

“I remember that testimony,” Smoak said. “I woke up at the time that was said and I was wondering why no one objected.”

Francis had objected and been overruled.

Smoak said the testimony about being drugged could certainly bear on damages. “It would seem to be so much more serious to say she was drugged and plied with alcohol. It’s more shocking.”

Seaton-Virga said the film showed Plaintiff B appearing lucid and sober, both before and after the sex scene.

“No one seems to be upset. It didn’t appear to phase her in the slightest. It was almost like she was proud of herself.”

Pontikes resumed her argument.

“Consent is not at issue. The child is not on trial here, the pornographer is. Miss Virga wants to put the child on trial.” It didn’t matter if she looks lucid or proud, Pontikes said, “she’s been exploited by a pornography empire.”

Smoak asked her to address the argument that the videos would be relevant as to damages.

“Would the footage lead the jury to believe there is less injury than they claimed, in that there in the immediate aftermath everybody seemed all right?” he asked.

Pontikes insisted that the footage only went to the issue of consent and consent was irrelevant.

Smoak said he understood her argument on consent and she no longer had to keep arguing it. Wouldn’t the footage of B leaving the sex scene go to the argument that she wasn’t immediately damaged and this “claim of injury is a more recent fabrication?” How do the defendants prove that the plaintiffs weren’t as damaged as they claim?

Pontikes started back in on consent.

“We’re not talking about consent,” Smoak said.

“I respectfully disagree, we are only talking about consent.”

Smoak told the lawyers on both sides to get together and watch the pertinent portions of the videos to come to some agreement on what was relevant.

“It may be that the videos are fraught with danger for either or both sides.”

I got to Angela’s that afternoon to find her dealing with a decidedly agitated baby girl. It wasn’t that Vivi was fussy, she just seemed frustrated. She was focused on organizing her toys and any disruption of that, especially if she couldn’t find something, caused her to wail.

Rachel was going to be a few hours late and Vivi kept asking for a bath. I gave Angela the much more subdued Tre to bathe while I ran the water for Vivi. She stood alongside the tub, fully dressed, and tried to hitch a leg over to climb in.

“Silly girl. When do we ever have a bath with our clothes on?”

She started jerking her dress over her head and when I tried to help, she got her arms and head lodged. That produced another wail until I got her free.

Normally bath time is relaxing for Vivi, but she was too tense. She didn’t want to play, only organize her bath toys. Rachel came into the bathroom as I was shampooing Vivi’s hair.

“So what do you think?” she asked.

I was impressed with Pontikes’ argument. Bringing everything back to consent was a smart move and she never wavered. She was a believer too, she really felt these girls were victimized.

“What do you think the judge is going to do?” Rachel asked.

“I think the judge sees the basic unfairness of keeping the videos away from the jury, but it’s hard to say what he’s going to do.”