“Girls Gone Wild” Judge’s Questionable Ethics Overshadowed By Francis’s Jailhouse Antics

New charges continue to mount against Joe Francis, who has allegedly been caught with unapproved meds in his cell and is now charged with three related felonies – including bribery of a public official when he allegedly offered a guard $500 for a bottle of water.

Hopelessly lost in the pillorying of Francis is the really interesting questions: the legal propriety of U.S. District Judge Richard Smoak’s conduct in using the threat of civil and criminal contempt as leverage to force Francis to settle a civil case, whether Smoak displayed improper bias against Francis, and whether Francis’s brazen conduct at the settlement negotiation actually rises to the level of a “threat” trumping the presumption of confidentiality – as discussed previously in this blog, below.

If the 11th Circuit ever clears this up, I’ll try to give an update here.

‘Til then!

Duke Players “Declared Innocent.” Will They Sue, and Who?

An AP article on CNN.com considers the question.

No point ($) in going after the original accuser. So you’re left with Durham County District Attorney Mike Nifong (and presumably the State of North Carolina), and perhaps Duke University?

Nilfong is very deserving, but possibly immune. Several pundits sound off on this issue in the AP piece. Duke may’ve created some liability for itself through its sanctions against the students prior to … anything legitimate. Innocent ’til proven guilty anyone?

Slander, libel and various flavors of wrongful prosecution come to mind as causes of action… doubtless there are others.

Should the players sue? These guys will be dogged by and tagged with this allegation for the rest of their lives – or at least for the foreseeable future. Their lives will be more complicated, and more difficult because of it. If they can recover damages to soften the hardships they’ll endure over this nonsense, more power to them.

“Girls Gone Wild” update (April 12)

“Girls Gone Wild” mogul Joe Francis has settled the case that landed him in a jail, David Angier reports on Panama City NEWSHERALD.com (dead link – see cache). Francis seems to be making an effort to appear diplomatic prior to his bail hearing set for today, leading up to an initial hearing on the criminal contempt charge set for April 23.

“I deeply regret some of the things I said about the plaintiffs’ lawyers, the judge and the entire case,” Francis said.

Scott Barbour, president of Mantra Films Inc., the company that puts out the “Girls Gone Wild” videos, said comments Francis and the spokesman made — that this was a case of “judges gone wild” — were supposed to be a joke.

Whether we’ll ever get the 11th Circuit’s opinion on the propriety of Judge Smoak’s actions in this case remains to be seen. I’ll be disappointed if we don’t.  

Meanwhile, Francis has been indicted in Nevada for federal tax evasion “for deducting more than $20 million in false business expenses.”

“Girls Gone Wild” update (April 11)

The latest reported by David Angier, posted on Panama City NEWSHERALD.com (dead link – see this cache). Judge Smoak has now filed a complaint for criminal contempt against Francis. Again, this looks like a personal vendetta on Smoak’s part.

“We’re in disbelief that a judge can hold Joe on criminal contempt stemming from a civil complaint. We have teams of lawyers looking to see if this has ever happened before.” — Francis’s lawyers

Detailed article on Francis’s “colorful” conduct at the settlement negotiation.

“This sort of verbal posturing,” Dickey [Francis’s attorney] said, referring to Francis’ comments during mediation, “is nothing new to anyone who has spent substantial time mediating and could not have been construed as a threat by plaintiff’s highly experienced attorneys.” Dickey said Francis’ behavior only ended one portion of the mediation process, which went on for another day and a half. …

Pontikes [an attorney for the Plaintiffs] said she filed the motion, despite the confidentiality requirements of mediation, because Francis made threats to “ruin” and “bury” the plaintiffs’ lawyers. Threats of violence made by a party in mediation are not required to be confidential. Dickey said Francis’ words were not meant literally and could not be taken as a threat of violence. “There is no allegation that Francis was holding a shovel when he made his comment,” Dickey said.

I’m not buying the “threat of violence” line from the plaintiffs’ attorneys. But I have to hand it to them for their ruthless tactics. That’s their job. But nothing I’ve just read changes my opinion that Judge Smoak is way out of line.

Federal Judge: Settle GGW Case or Go To Jail

Joe Francis, multimillionaire mogul of the racy “Girls Gone Wild” video series, was the recipient of an eyebrow-raising ultimatum from U.S. District Judge Richard Smoak (Northern District of Florida) according to an Associated Press article posted on CNN’s website today.

Francis is being sued by seven women who claim they were underage when filmed by his company. Francis counters that the women signed releases and lied about their age, a claim doubtless contested by the women on various grounds.

The case took its odd turn when a settlement negotiation broke down, and the women’s attorneys complained to Smoak at a hearing that Francis, per CNN’s AP article, “became enraged during the settlement talks, shouting obscenities at the lawyers and threatening to ‘bury them.'”

According to an AP article by Melissa Nelson appearing on April 1 on OCALA.com: 

Larry Selander, an attorney for one of the women, testified Friday that Francis became enraged during the settlement negotiations.

“What I remember most clearly is [Francis’] eyes and face,” he testified, according to the Panama City News Herald. “I looked into his eyes, and I thought he was gonna slug me.

Which, considering the dateline, leaves me wondering if this was all an elaborate April Fools joke. Why is attorney Selander discussing the settlement negotiation with Judge Smoak? Shouldn’t Selander’s recourse be to report the “assault” to the authorities and/or file a civil case for damages for assault if he actually felt threatened?

Per the same article, Francis’s counsel objected (rightly it seems) to the content of the settlement negotiation meeting being discussed, relying I assume on the ordinary rule of evidence that statements made during settlement negotiations are confidential and cannot be used as evidence.

The upshot of this was Smoak ordering Francis to settle the case or go to jail. Since when can a judge do that!? Using the threat of jail to intimidate a party to a private settlement negotiation? What country is Florida in? In the United States, the function of a civil court is that of an objective and neutral referee when the parties cannot privately resolve a dispute. Is Smoak’s action not only astonishingly improper – but also quite possibly violative of Francis’s civil rights? Or is this story just so badly reported by the AP that it is impossible to understand the legal proprieties?

Francis was quoted in an April 6 AP story posted on the East Valley Tribune’s website as saying that Smoak is “a judge gone wild” who has called Francis “the devil” and “an evildoer” – which, if true, seem to be grounds for Smoak to be removed from the case as openly biased against Francis.

Perhaps Smoak (again, if these allegations are true) is cut from the same moral mold as former Alabama Chief Justice Roy Moore (removed from his office by the Alabama’s judicial ethics panel for failing to comply with a federal judge’s order to remove a Ten Commandments monument). Last I checked, advocacy for a “moral” position – be it for the Ten Commandments or against the “exploitation” represented by the “Girls Gone Wild” franchise – is not a desired quality in a judge’s public function. Attorneys are advocates, they apply the pressure. A judge is – must be – a neutral arbitrator.

Francis has now been taken into custody per the contempt citation issued by Smoak after the negotiations stalled. Francis’s attorneys appealed to the 11th Circuit Court of Appeals, but the Circuit Court did not act to keep him out of jail prior to the appeal being heard, the AP reports. From his latest statements, it appears that Francis will attempt to settle the case at any cost in order to stay out of jail, while insisting that he is under duress and any settlement will be overturned on appeal.

If this story has been reported with any degree of accuracy, Francis’s plight seems unjust, and his hope of reversal on appeal seems bright.

If you know what’s really going on here, think you do, or want to share your opinion – please comment.

Texas Futile Care Law

On April 10, 2007, a judge in Austin, Texas granted a family’s request to continue life support of their 17-month old child who is suffering from a progressive illness that does not allow him to breathe on his own. The hospital had ordered that he be taken off life-support pursuant to a Texas futile care law that allows hospitals to end life-sustaining treatment in similar situations as long as they provide ten days’ notice to the family. Do you believe the family should have the right to make the decision of when to end medical treatment? Do you think the futile care law should be overturned? Do you believe hospitals should be allowed to end treatment when their efforts are deemed futile and without medical benefit?

Rights of Detainees at Guantanamo Bay

On 4/2/07, the U.S. Supreme Court rejected an appeal by Guantanamo detainees seeking to challenge their confinement for the past five years. Do you think the detainees should have access to U.S. civilian courts, regardless of where they are held? Do you think military hearings to decide the lawfulness of their confinement will be adequate? Do you agree that those categorized as enemy combatants are not entitled to any legal rights?

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