The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (35 page)

Plaintiff S had already been sworn in and McCloy wanted to start asking her questions, but Francis was still standing at his table. He didn’t look like he wanted to say anything, he just looked like he forgot to sit down.

McCloy started, hesitated, looked at Francis expecting an objection, started again and finally got to his first question. Francis finally sat down.

Plaintiff S was the most emotional of the girls who took the stand. She choked up almost immediately, as McCloy asked her how old she was when she flashed for Girls Gone Wild.

“15.”

And what does the video show?

“I exposed my breasts, and I was just smoking a cigarette, laughing.”

She appeared in “Girls Gone Wild College Girls Exposed/Sexy Sorority Sweethearts.”

“What grade were you in?”

“Ninth grade.”

“Were you in college? Had you been a member of any sororities?”

No.

Plaintiff S was blond with streaks in her hair, a small upturned nose and, without makeup, her eyes seemed small and featureless. She had thin lips and a small mouth, which gave her a hard look. Her voice, however, was high and clear and even when she got upset, her tone never lost a bell-like quality.

She’d grown up in Northwest Florida, the second youngest of seven kids. Until the filming, in 2000, she’d had a normal scholastic career and a boyfriend.

The day of the filming, her older sister had asked their mother if she could take S and Plaintiff J, who was 13 at the time, and J’s 12-year-old best friend to the beach. Her mother was initially opposed to her children going anywhere near Spring Break, but eventually she was talked into it.

The four girls spent the day swimming and sunning, before getting back in the car to get some food. They were in bumper-to-bumper traffic on Front Beach Road when a cameraman approached the car.

He first asked the driver, the 18-year-old older sister, to flash. She said no and he came around to the other side of the car where S and J were sitting, S in the front seat and J behind her.

S said the cameraman badgered them, pestered them and would not leave.

“Finally, I just did it.”

She said she didn’t think the cameraman would leave unless she flashed. She said she covered her face and leaned forward afterwards.

She said she had no idea that the video was going to be used and sold by Girls Gone Wild.

“I felt that if I didn’t do it, they weren’t going to go away. They just kept saying, ‘Do it, do it, do it.’ And traffic was stopped, we weren’t going anywhere. I just didn’t think they were going to stop so I just did it so they would just leave us alone.”

How did it make you feel?

“Ashamed. I was embarrassed more than anything.”

J and the 12-year-old also flashed. The cameraman tossed some beads to them and left. The girls continued their day and when they went home they didn’t tell their parents.

S said nothing came of it until sometime in January or February of the next year. The video had recently been released and suddenly, she said, it seemed like everyone knew about it.

“Someone ran up to me and said, ‘You’re on the ‘Girls Gone Wild’. You’re on a porn tape. Ha ha ha. Everyone’s gonna know now.’”

And that was the beginning. Her high school career, she said, was a nightmare of insults and gropings in the hallways. Someone even spit in her face. Her boyfriend broke up with her, saying he was ashamed of her.

“There was plenty of times that going to the bathroom, you’re just sitting on the toilet and crying and not knowing what to do, who to talk to. It was hard,” she said, wiping tears away.

The women on the jury were watching her very carefully. At the time of the filming, she’d been close to the same age as one of the juror’s daughters. She watched S with a sad look. Another juror wiped tears from her eyes, but the others were unmoved.

“Did you lose most of your, what you thought were your close friends at that time?”

“I lost everything. There’s no one wanted to talk to me anymore. I lost my best friend from … I’ve known since like five years old. We went to grammar school, everything, we did everything together. I even lost her.”

“Did this change affect your grades?”

“Yes, because I didn’t care anymore. I mean, I kind of gave up. Like my grades just went downhill.”

She started using drugs: marijuana, Xanax.

S told them about having to tell her mother, which she did after her mother found out about the video from someone else and confronted her.

McCloy asked her how that conversation went.

“Humiliating,” she wailed. “That’s your mom. That’s not something you ever imagine having to talk to your mom about, being on a pornography tape, when you’re 15. It’s embarrassing.”

S dropped out of high school, left home and got involved in a series of abusive relationships.

“What did this guy turn out to be?” McCloy asked of her first boyfriend after the Girls Gone Wild incident.

“I don’t even know how to answer that. A nightmare.”

He was controlling to the point where “I couldn’t even wash my body,” she said.

Francis laughed, “Objection. Relevance. This is a joke. What does this have to do with her showing her breasts on Girls Gone Wild? This has gone on long enough.”

Smoak called Francis and McCloy to sidebar.

“Mr. Francis, this is your last chance,” Smoak said. “Next outburst and you’re going into custody.”

“Please work with me. I’m trying really hard.”

“No you’re not. You’re totally out of control.”

Smoak turned to McCloy and asked him about the testimony. “Are you going to link this up? Because right now it doesn’t appear to be particularly relevant.”

“We will, with the expert witness.”

“Are you saying that because of this experience she was more prone to an abusive relationship?”

“Yes, your honor.”

“That’s such a stretch,” Francis said. “He’s having fun making her cry in front of the jury. This absolutely irrelevant and ridiculous. And by the way, it’s not even a violation. In Florida law minors can show their breasts. This is not even a violation of Florida law. I want to make a motion for directed verdict right now, because this isn’t a violation of Florida law.”

He said the last part so loudly that it could be plainly heard throughout the courtroom.

“Be quiet,” Smoak said. “The claim that they have made is for intentional infliction of emotional distress. The fact that it isn’t a crime is irrelevant.”

“I think the jury needs to be instructed, your honor, that they’re to disregard the fact that she was underage and showed her breasts because that’s not a violation of Florida law.”

“Their claim is not for a violation of a criminal law. It is for the common law tort of intentional infliction of emotional distress.”

Smoak turned back to McCloy. “Are you representing to me that you have an expert who will tomorrow testify about why this plaintiff got into or stayed in an abusive relationship and will connect it to the experience?”

“Yes, your honor.”

“On that representation, I am going to permit it to go on. If it does not come to pass as represented, I will instruct the jury accordingly and in very strong terms.”

Smoak thought it was a good time for lunch and released the jury until 1:30.

After lunch, Francis was late getting back. Smoak had warned him that morning, but didn’t say anything to him when he took the bench.

Before bringing the jury back in, Francis, Pontikes and Smoak had another heated discussion on whether evidence of fake IDs, signed releases and the introduction of the videotape would be allowed as evidence.

Francis’ argument, didn’t make sense considering the defendant on the stand – saying the video would show they weren’t drugged or drunk – but there had been no testimony from S about drugs or alcohol, just an annoying cameraman. There hadn’t been anything mentioned, either about anyone asking S for ID or to sign a release. It sounded like Francis was just going back to the same argument he’d had for the last two days, about getting Plaintiff B’s video in.

Francis was facing a lot of restrictions on what he could do, but part of that was due to the fact that he hadn’t submitted the proper witness list and evidence exhibits before the pretrial deadline.

“If I’m not even allowed to question these witnesses about what they said, it’s pointless to be here. We might as well take it up with the 11th Circuit” Court of Appeal, he said.

The argument ended and an assistant brought Plaintiff S back into the room.

“Mr. McCloy are you ready to proceed?” Smoak asked.

McCloy simply pointed to the empty jury box. Smoak laughed.

“I can’t even blame that on a senior moment.”

A minute later, Hughes announced the jurors’ entrance and McCloy resumed his questioning of S.

“Why did you marry him?” he asked her, referring to her “nightmare” boyfriend.

“I thought maybe things would get better.”

“Did it?”

“No sir.”

She ended up divorcing him, but then her drug problems got serious. She talked about the types of narcotics she tried.

“I even ended up smoking crack cocaine,” she said, dabbing a tissue at her eyes. “It’s so embarrassing.”

McCloy paused as S sobbed into her tissue. She regained her composure and McCloy asked her if any of her boyfriends had abused her during high school.

“No sir.”

“How has your life changed since the release of the videos?”

Francis sighed and ripped a page out of his legal pad.

“I don’t like to take my bra and stuff off,” Plaintiff S said. She added that she couldn’t even shower with her ex-husband while they were married because she always felt like she had to cover her breasts. “I just get that paranoid feeling, like someone is watching you.”

Did her ex-husband have an opinion about her incident with Girls Gone Wild.

“He said Mr. Francis was a pedophile and the biggest scumbag on Earth.”

“Objection, your honor, this is just absurd.”

“Sustained.”

Francis began to sit down, then bounced up again.

“I’d like you to instruct the jury to disregard that last comment.”

Smoak did so.

Plaintiff S’s relationship with her mother was strained.

“I have my good days and I have my bad days. It’s always gonna be there, the shame from what I’ve done.”

McCloy asked her when she was last recognized from the video and she said November. Her district manager asked her about it.

It was maddening that the video was available for rent at her local Blockbuster and she would see it advertised on TV.

“Do you think you could benefit from some form of therapy?”

Yes.

“Can you afford it now?”

“No. Not really.”

Do you regret what happened that day?

“I don’t feel like I had a choice in the matter. If I’d know it was Girls Gone Wild, I would have never have done it. I didn’t have a choice in the matter. They didn’t tell me. It’s not fair. I was 15.”

She wailed the last few words, then cried into her tissue again.

McCloy asked her if she and her sister had a “scheme to target GGW?”

“I didn’t know who they were.”

McCloy said he was done and turned back to his table. S continued to cry into her tissue as Francis walked to the podium.

He asked her how long the video was that her footage was a part of. She had no idea. Guess.

“I have no idea. An hour and a half?”

“OK. Good. An hour and a half. And how many girls do you think appear in this video?”

“I’m not sure Mr. Francis.”

“Can you guess? Would you say there were 50-100? 200-250? Would you be surprised if I told you there were 250 girls on that video?”

McCloy objected and they had a brief sidebar.

“And you exposed your breasts on this video willingly right?” Francis asked when he returned to the podium.

“Yes.”

Francis seemed a little surprised by the answer.

“Did someone force you to expose your breasts?”

“No one physically touched me.”

“So you did it on your own free will?”

Yes.

“Do you know the total amount of time your breasts were exposed?”

“It felt like forever to me.”

“Was it one second? Two seconds?”

She didn’t know.

“Two seconds.” Francis announced for her. “It was two seconds.”

He’d gotten pretty worked up and was talking loudly while leaning in toward the microphone. Smoak told him to tone it down.

“The total time was two seconds. Would that seem like a long time to you?”

“I’m not for certain that it wasn’t longer than two seconds.”

“How long was it then?”

McCloy objected. “She has answered the question.”

“What am I supposed to do? I can’t make her tell me.”

“Now Mr. Francis is badgering the witness.”

“I don’t mean to badger.”

He dropped the subject and moved on.

You were smoking a cigarette? And how old were you? And you were smoking a cigarette because you thought it was cool?

McCloy objected. “This is not about children smoking.”

Francis whipped his head around and said to McCloy, “I think I’m entitled to an answer.”

“You are not to talk to Mr. McCloy,” Smoak snapped at him.

“I’m on trial here.” Francis said. He turned back to S.

“Have you met me before?”

“I don’t believe so.”

“Have you ever seen me before in person?”

She said he kind of looked like the cameraman.

“Now she’s claiming I was the cameraman?” Francis burst out.

“Maybe,” she said. “I was 15. Maybe it was you.”

“This is ridiculous. It’s established who the cameraman was.”

Smoak called another sidebar. He told Francis to calm down and stop making statements. He was to ask questions only. If he couldn’t control himself he would be removed from the courtroom and held in a cell.

“I’m the one on trial here. I’m only representing myself because I can’t afford a lawyer.”

“You are not represented by counsel because of your own actions,” Smoak said.

“I’m on trial. They’re not on trial. They’re suing me.”