The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (34 page)

“Mr. Francis, where have you been?” Smoak asked as he took his seat at the bench.

“I was just a few minutes late. I called the clerk and left a message on her machine. We had some weather delays.”

Francis then went right into his argument on the fake ID issue, apparently assuming that his explanation was going to satisfy the judge. It did not. Smoak told him that this was his last chance. He was not to be late again. If he was, the judge would impose sanctions.

“Do you understand?”

“Yes sir.”

“Sit down.”

Smoak said he’d read the cases that Francis had provided and they were not specific to the issue. Francis wanted to argue, but Smoak wasn’t in the mood. The trial was already delayed and he wasn’t going to allow Francis, or Pontikes for that matter, to go on and on after they lost an argument.

“I have ruled,” he told Francis. The cases did not support his argument and therefor nothing about age or the girls lying about their age would be allowed into the trial.

Francis said the videotape of Plaintiff B, which he so desperately wanted in, had nothing to do with the age question. He said it was evidence that B was not plied with drugs and alcohol and had lied about that to the jury.

“If I could just play this video we could all go home.”

“Tell me what that video shows.”

Francis apparently didn’t understand the question because he started talking about something else.

“What is on that DVD?” Smoak repeated, keeping his voice even.

“It’s the lead up to the sex scene. We don’t even have to put the sex scene in …”

“Tell me what is on that video.” Smoak said again. What he wanted to know were specifics.

“It’s going to show that she lied yesterday, on the stand, and this proves that.”

“What is on it?” Smoak said again, still not getting frustrated.

Francis still didn’t give him an answer, saying only that it shows B was sober and knew about Girls Gone Wild prior to the filming.

“You let me play this and we can all go home.”

“Because she said she’d never heard of GGW?” Smoak asked.

Francis said it was more than that. B said she’d been coerced, but the video disproved that. She said she was drunk, but she appears sober. She said she was too drugged to know what she was doing but the video showed someone who was fully involved in the activities around her.

Smoak said it didn’t necessarily matter if she’d told the truth about everything. If, for instance, she said she was wearing a blue dress when she’d actually been wearing a white dress, that was immaterial and would not be proper for impeachment.

He said the video had to impeach B on relevant issues. Since age was no longer material, as was her prior knowledge of GGW, then what other evidentiary value did the video have?

“This is not about one small inconsistency,” Francis said. He was talking loudly now, not listening to what anyone else was saying, and gesturing angrily at the notes he’d taken. The bailiffs were standing on three sides of him and Smoak was trying to get his attention. “I counted forty-seven inconsistencies. This witness is a liar. Forty-seven is an overwhelming number of inconsistencies for an eight-minute video.”

“Mr. Francis. Mr. Francis. Mr. Francis, be quiet!” Smoak finally raised his voice.

The only thing that mattered, Smoak said, was that B was a minor at the time she was filmed and the footage was then published to the world. That was liability in a nutshell.

“Then it goes to the damages question,” Francis insisted, still unable to calm down. “I don’t want to give her anything.”

“Not everything is fair game.”

Francis could not accept where the judge was going and couldn’t stop himself from continuing the argument.

“Mr. Francis, you’re out of control,” Smoak barked at him. “This kind of thing makes me concerned about your mental state. Did you take your medicine this morning?”

“No. I just drank a lot of coffee,” Francis giggled. He then told the judge that he didn’t appreciate the bailiffs standing every time he did and crowding in around him every time he spoke. “The jurors are watching that, your honor.”

He said he should be allowed to show the jurors the release B had signed after the sex scene.

Smoak said the release he was looking at was barely legible.

“She authenticated this document in her deposition. It’s on the internet. It has been for seven years.”

That drew a gasp from the plaintiffs’ lawyers and launched Pontikes to her feet, but she didn’t say anything.

Smoak asked Francis again what the release was supposed to prove. It didn’t matter that she listed her date of birth as 1983 instead of 1984, lying about age was immaterial. This document, he said, only had the potential to mislead the jury about the issue of age.

“It goes to credibility,” Francis insisted. “She wasn’t coerced or manipulated. She was a willing participant!”

Consent didn’t matter, Smoak said. A minor cannot legally consent to a sex act or being filmed for pornography. It was immaterial.

“It’s not immaterial to lie to a jury,” Francis said. “She lied yesterday, in this courtroom, before your honor. It goes to her credibility. I counted fort-seven lies and the credibility of a witness is always on trial.”

Smoak didn’t budge from his ruling.

He talked with Pontikes for a while about the releases. Then he asked Francis to address the issue of how the signed releases or any aspect of consent went toward the issue of liability.

Francis said he was being sued because the plaintiffs claim he did an intentional bad act that destroyed their lives. He said the issue of consent, or any evidence that the girls sought out Girls Gone Wild or lied to get onto a video went to the issue of his intentional acts.

“They have to prove malice,” he said, especially if they hoped to get punitive damages. How can there be malice if the girls sought out his company, lied to a cameraman and then falsified a release to claim they were adults? “How can you ask a jury to go and determine punitive damages without seeing this video? This clearly disproves malice, especially on my personal part.”

“Just because she signed the release should not bar the award of damages,” Pontikes said.

“Your honor, the jury needs to decide that. They need to see that she was a willing participant. She created this for herself.”

It still came back to strict liability, Smoak said. By law, it didn’t matter that a minor consented to a sex act.

“She was the one that initiated this process,” Francis said. “She sought out GGW. This is what she dug for herself. This is the grave she dug for herself.”

Smoak ruled that the signed release was out, it couldn’t be used as evidence in the trial.

“Whether she lied about her age is immaterial, Mr. Francis,” Smoak said.

“But it shows there was no malice. GGW didn’t run up to her, rip off her clothes, tie her down and film her,” Francis insisted. He then turned to the issue of the videotape, which he still wanted to use in his cross examination of Plaintiff B.

What he didn’t realize was his cross examination of Plaintiff B was over. Smoak had ended it the day before.

“I wasn’t done. I still have plenty more to ask her,” Francis said when that was made clear to him.

Smoak said Francis can write down what questions he wanted to ask B. The judge would review them and decide whether they were appropriate.

“Frankly, I’m not going to turn you loose after yesterday and how badly things got out of control,” Smoak said.

Francis said he couldn’t get the questions written out until after lunch and he objected to the requirement. Smoak said he would also review the portion of the Plaintiff B videotape that Francis wanted to use.

Then they moved on with the trial.

After the jury came in, Pontikes called Plaintff B’s mother to the stand. She described her daughter as her “most passionate child, filled with love.”

Francis moved some papers around on his desk, then propped his elbow on the table and sank his cheek onto his palm.

Pontikes asked her a lot of the same questions she asked B, about her daughter’s background and plans for the future.

Then they got to Spring Break 2002. Why did you allow her to go to Panama City Beach for Spring Break that year?

“Before this happened I didn’t realize there were perverts out there,” B’s mother said.

Why didn’t you warn her about Girls Gone Wild?

“You trust your daughter. You try to raise them up right. Why would you warn them about something I didn’t even know existed? I never dreamed my daughter could ever have been a part of something like this.”

They moved on to her husband’s death.

Francis was getting restless. He tore out some pages from his legal pad, crumpled them up and threw them in a box. Then he let out a big sigh.

B’s mother was talking about her daughter’s phone calls the day her father died. She said B was very upset and wanted to come home. B’s mother said she didn’t know anything about the video until someone at her “Bible study fellowship” told her.

“They said they’d heard about it, or seen it, and it was really bad.”

She said she didn’t think her husband knew about the video. She said his death was a shock to everyone.

“It was just one of those things that happen so quickly.”

And how did B react at the funeral?

“She kept hanging on to the coffin and screaming, ‘I’m sorry daddy. I’m sorry.’”

But, like her daughter the day before, she did not blame GGW for her husband’s death.

“This incident did not kill my husband. My husband died of a heart attack. Bottom line.”

B’s mother said one interesting thing about her daughter’s drinking: “She’ll tell you, after two drinks she’s drunk. Three drinks and I don’t even recognize her. It’s a total personality change.”

Since 2002, B’s life had changed significantly, her mother said.

“She’s disgusted in herself. She just couldn’t cope. She was so depressed and lost a lot of friends through this.”

B’s mother went on to say her daughter became paranoid and sometimes thinks people are watching her. She told about a time when some children were playing with laser pointers outside their home. The laser dots flashing through the window and on the walls made B think someone was outside with a rifle trying to kill her.

Francis laughed.

“How do you think that being sexually exploited as a minor by Girls Gone Wild has affected her?” Pontikes continued.

“It has changed her life. It will always be a part of her life. She will always be embarrassed about it.”

Then B’s mother turned to the jury.

“If you’ve got a daughter or granddaughter, warn them. I hope you never have to go through what I’ve gone through.”

Pontikes sat down and Francis began his cross-examination.

Do you feel like B has taken any responsibility for her actions?

“She’s taken full responsibility for her actions.”

“Then you don’t blame Girls Gone Wild?”

“I think she was coerced and manipulated.”

“Were you aware that your daughter has been on other videos?”

“Mr. Francis,” Smoak interrupted. “Come up here.”

“Your honor, this question is important.”

At sidebar, Smoak told Francis he wanted to know what the rest of his questions were going to be.

They went back and forth for a minute before Smoak could be heard saying, “that’s immaterial.”

“Oh, no, no, no,” Francis said, backing away from the bench with his hands up. But Smoak was adamant.

After the sidebar, Francis returned to the podium.

You don’t think B was responsible for her actions?

“She was manipulated. I don’t feel she’s totally responsible.”

“You don’t think that at 17 years and 10 months …”

Objection.

“How old was your daughter?”

“17.”

“And you don’t hold her responsible for her actions?”

And her husband’s death?

His death certainly contributed to her mental problems, as did the “guilt and stress” she felt over the GGW incident, the mother said.

Francis began on another topic, but Pontikes objected, and Francis’ cross-examination began to wind down.

“I have nothing further.”

The next witness was B’s former boyfriend. A portion of his videotaped deposition was played for the jurors. He too talked about her change in personality and the guilt she felt. They had been together before the GGW filming and after. They moved to Southern California and both tried to get into the music industry.

“Yes, she was a girl I would have married.”

“Did you contemplate that?” Dent asked him from off-camera.

“Not seriously.”

.

Chapter 38

“Mr. Francis, you are out of control”

B
efore the next witness took the stand, Ross McCloy asked Smoak if they could approach and discuss something quietly.

“Mr. Francis,” Smoak said, inviting him to join them. Francis was rifling through the notes and files on his desk.

“Mr. Francis?” when he didn’t come up to sidebar.

“I’m on my way, your honor,” Francis said, finally breaking away. He jogged past the jury box and glanced over at the jurors with a wry smile on his face.

When Francis joined McCloy and Smoak at sidebar, they started a hushed conversation. It didn’t take long for Francis to get agitated. He began dancing around, bobbing and emphatically pointing into the courtroom.

Smoak said something in a low growl and the bailiffs closed in on Francis again from three sides.

“Mr. Francis, you are out of control,” Smoak said, this time clearly understood by even those in the audience.

With two bailiffs standing at either shoulder, Francis put his hands up and stopped gesturing and moving.

When they’d resolved the issue, McCloy and Francis went to their respective tables.

Plaintiff S came in the courtroom, hesitated, her eyes scanned the room but looked above the spectators. She didn’t want to look anyone in the eye.

Ross McCloy approached the podium as S took her seat in the witness box. Francis was standing at his table, shuffling papers, slapping note pads on the table. McCloy gave him a long look, but didn’t say anything.