Panama City- It was so close.
After months of hearing arguments and reading motions, replies, responses and traverses, Circuit Judge Dedee Costello was ready to rule this past Wednesday on a motion to dismiss the remaining 2003 felony charges against “Girls Gone Wild” founder Joe Francis.
Instead, she delayed her ruling for at least a week to allow the defense to respond in writing to another state argument to the motion, filed an hour before a hearing on the issue.
“I had intended to rule now,” Costello told the lawyers at the end of an hour-long argument. Instead, she accepted prosecutor Mark Graham’s last-minute filing and gave defense attorney Larry Simpson a week to respond.
Francis, 34, is charged with two counts of both using and conspiring to use minors in a sexual performance. He faces up to 40 years in prison if convicted as charged.
The charges stem from a “Girls Gone Wild” cameraman filming two 17-year-old girls performing sex acts with each other in a Panama City Beach motel shower during Spring Break 2003. Francis was in the motel room, but says he didn’t meet the girls, who lied about their ages to the cameraman, until after the filming.
The central issue in the motion to dismiss is the defense’s contention that for Francis to be guilty, he would have to know the girls’ ages before the filming. Simpson and Aaron Dyer, Francis’ California lawyer, say the Legislature has to specify laws as strict liability — those that don’t require criminal intent — for ignorance of age to be ruled out as a defense.
Dyer said recent high court and appeals opinions, while not addressing these specific charges, have made it clear that a judge or prosecutor cannot infer that a crime does not require criminal intent, but the Legislature has to spell it out.
Graham disagreed, and presented cases in which using minors in a sexual performance had been upheld as strict liability crimes.
Graham, however, said in his latest filing that he would present evidence at trial that the alleged victims’ companions on the night they were filmed had told Francis their ages. Graham said Francis knew or should have known the two girls in the shower were not at least 18.
“During the filming of the ‘shower scene’ and while the defendant was alone with (two of the girls) in the bedroom portion of the hotel room,” Graham wrote, one girl “again informed the defendant that she was 17 and (the other girl) also informed the defendant that she, too, was only 17 years old.”