September 29, 2009
"Roman Polanski Rep Says Justice Has Already Been Served"The title of this post is the headline of this new ABC News piece concerning a famous old child sex case that has become new again thanks to the famously neutral Swiss. Here is how this piece starts:
As director Roman Polanski remains in a Swiss jail and the debate about his arrest rages on, his Hollywood representative says attorneys are preparing a motion for his release. "The entire narrative surrounding this situation over the last 32 years has been wrought with complications and inconsistencies," Jeff Berg told "Good Morning America" today.
Polanski's arrest Saturday at the Zurich airport came at the request of a U.S. warrant on a 31-year-old statutory rape charge. Berg and Polanski's lawyers have expressed shock that he was taken into custody in a country he is known to frequent, even owning a chalet there. And Berg called the timing of the arrest, which occurred the same day Polanski was to have received an award at the Zurich Film Festival, "one of many cruel ironies" that Polanski has faced in his life.
Polanski's critics have seemed incredulous that Hollywood heavyweights like producer Harvey Weinstein are pleading for the freedom of a man convicted of intercourse with a 13-year-old girl, but Berg said he and Polanski's lawyers believe justice has already been served.
Polanski took a deal and pleaded guilty to one count of unlawful sexual intercourse and served 42 days in a California jail where he was psychologically evaluated. He has admitted he had sex with 13-year-old Samantha Geimer in 1977 after plying her with champagne and Quaaludes at the home of actor Jack Nicholson. "Roman was incarcerated. Roman did time in a state prison," Berg said. "My feeling to his critics is you have to look at a much more complex situation surrounding this case."
Now in her 40s, Geimer has said she forgives Polanski and doesn't think he should face further jail time.
Berg said Polanski fled the country in 1978 only after learning during a discussion with the district attorney outside a Los Angeles courtroom that the judge in his case was preparing to sentence him to a long prison term despite the plea deal. Polanski's rights were violated, Berg said, and the case was "plagued with prosecutorial and judicial misconduct."
Because of how old and opaque this case is, my feelings are both mixed and muted concerning what is going on now. But I have an inkling that at least a few readers may have strong opinions, which all are welcome to share in the comments.
September 29, 2009 at 09:10 AM | Permalink
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Prof.: If California had a mandatory guideline system in place in 1978, one that allowed for plea and/or charge bargaining, then Roman Polanski would have accepted his Oscar for The Pianist in person. He would have got the time-served bargain his lawyers and the state worked out and that "judicial discretion" you anti-Guideline zealots love so much wouldn't have been able to create this soap opera. Polanski is the real poster boy for judicial discretion, not Mr. Kimbrough or Mr. Gall. This is the real face of the absolute MESS of a non-mandatory guideline system. Isn't leaving sentencing up to the whim of an immediately unaccountable individual just great?
Posted by: Ferris Bueller | Sep 29, 2009 9:26:33 AM
Doug. What's "opaque" about getting a 13 year old drug and having sex with her? Count me among those who think we ought to use prosecutorial discretion more often to drop old cases where the alleged perp has lived free without further incident. But such prosecutions do happen fairly regularly without much fanfare. What distinguishes this case is that the alleged perp is a member of the global elite.
It's sorta like the Ted Stevens case. Count me among those who think that when prosecutors commit misconduct, the AG should ask courts to overturn the conviction, but it makes one wonder about the fairness of our criminal justice system when simple injustices are quietly tolerated in case after case, only to be "discovered" and condemned when the defendant is an elite.
Posted by: dm | Sep 29, 2009 9:35:15 AM
dm, thank you for crystalizing my own mixed feelings. When a high-profile defendant obtains relief because he or she (through a combination of public scrutiny and paid, highly competent counsel) is able to shine a bright light on unfair practices flourishing in the dark nooks and crannies of the system, and one is aware through personal experience that such practices are hardly uncommon, yet uncommonly recognized, one is left with a queasy sense of "Yes, but..."
Posted by: Observer | Sep 29, 2009 12:06:20 PM
Observer, the vast majority of sex offenders do not have "paid, highly competent counsel." And, outrageous, unfair practices are cavaliarly in play, all the way from the prosecutor stacking charges, and filing false extra charges (with her eye on the plea deal), to the judge taking into account "victim impact" statements, which are merely unproven accusations. The person who writes the PSR relies on the victim impact statements in his recommendations to the judge. (unproven gossip) This PSR also follows the defendant through prison, determining if he goes to max, medium, or low. (Meaning, will he be raped and stabbed in max, or allowed to sing in a choir in low.) I cannot find much that is fair in the accusations and prosecutions of poor people.
Posted by: DLJ | Sep 29, 2009 12:35:45 PM
Anyone wanting to be dispelled of the notion that the left is soft on crime need only Google this:
Posted by: George | Sep 29, 2009 4:18:38 PM
Yup, we should surely reward absconding from your sentencing to "serve out" a millionaire's life in Europe, and then, if the rapist gets away with it for long enough, declare him the winner!
Now THAT'S justice for ya.
Posted by: Bill Otis | Sep 29, 2009 6:09:25 PM
My feelings are mixed as well, especially given the age of the victim and the circumstances of the offense.In my state in 2009 this conviction would net Mr. Polanski a mandatory minimum of 75 months DOC... I don't like mandatory minimums, especially not ridiculous ones like that, but I also don't like the idea that someone with a lot of resources at his disposal gets to skate because he was able to abscond successfully for so long. So often it seems these things break down along lines of rich and poor.
Posted by: Morgen | Sep 29, 2009 6:24:21 PM
I agree with others in this comment section but I think they miss the point. We shouldn't want the rich man drawn down to the level of the poor, we should seek that the poor get the same treatment as the rich.
As to Bill's comment. I think that one of the more interesting aspects of the case is that even the victim no longer sees any purposes in putting him in jail. Do victim impact statements only have heft when the are against the criminal? That's what you make it sound like.
Posted by: Daniel | Sep 29, 2009 7:21:33 PM
"As to Bill's comment. I think that one of the more interesting aspects of the case is that even the victim no longer sees any purposes in putting him in jail. Do victim impact statements only have heft when the are against the criminal? That's what you make it sound like."
There are two crimes here, and the girl was the victim of only one. The crimes were rape and flight to avoid legal process. She was the victim of the first, for sure. Her present beliefs have "heft," in my opinion, but heft is not the same thing as controlling effect, nor should it be. Crimes are committed against the state; torts are committed against the individual. Victims in criminal cases are entitled to a respectful hearing, but they are not entitled to control the outcome.
The flight to avoid legal process is even more clearly an offense against the state, not the individual. There is simply no such thing as a state criminal justice system that can work if the defendant gets to decide when, or if, he'll show up. The system itself is the victim in that instance.
To simply take a pass on Polanski because his absconding was successful would be startling. It's a vast understatement to say that it would create perverse incentives: Cheating the system wins if you get away with it long enough.
Posted by: Bill Otis | Sep 29, 2009 8:15:26 PM
Bill. The distinction you make is a fair one and I'll grant it.
"To simply take a pass on Polanski because his absconding was successful would be startling. It's a vast understatement to say that it would create perverse incentives: Cheating the system wins if you get away with it long enough.
To my mind, yes. You talk about incentives but finality is an incentive as well. Let's be honest here. The ONLY reason he is in jail right now is because his lawyer's (foolishly) tweaked the wrong people's nose. If his lawyers hadn't made a point about the disinterest of the law the law would have failed to take any further interest.
My point is that the system has a real interest in finality. That's the reason many crimes have a statute of limitations. It's not "justice" in an abstract sense but it's necessary for the system to function. Guilty people do go free.
My opinion is if that if the law didn't show any interest in him for so many years, the system loses it's right to call foul now. As somone in the article points out, we are not talking about a guy hiding in the shadows; if the system cared so much, they could have got him long before now.
Posted by: Daniel | Sep 29, 2009 10:45:01 PM
I agree with your major point that the system needs finality, and that this need is reflected most directly in statutes of limitation. (It is also reflected in the AEDPA, which I likewise support).
I believe there is a class of crimes, however, for which there is no statute of limitations. Flight to avoid prosecution and escape are among them. Technically, these are considered in the law to be "continuing offenses" and therefore ones for which the finality clock never starts. But the less legalistic reason supporting continuing jeopardy is the one I mentioned, to wit, that to allow the accused to win because of the persistence of his cleverness in beating the system is to reward, and thus encourage, exactly the wrong behavior.
I have not really followed the Polanski case, but from what I know of it, the failure to apprehend him was due, not to disinterest or lassitude on the part of the authorities, but to Polanski's taking care to avoid jurisdictions where the authorities COULD legally apprehend him.
Posted by: Bill Otis | Sep 30, 2009 1:39:44 AM
Polanski should be raped in prison and stay there until he dies.
Posted by: anonymous | Sep 30, 2009 12:57:54 PM
In that order?
Posted by: Res ipsa | Sep 30, 2009 1:25:19 PM
It's hard to say what is more loathsome: Deboarah Winger expressing shock at the "philistinism" that her precious film festival was inconvenienced by the absence of Polański; Whoopi Goldberg's "it wasn't 'rape-rape';" Woody Allen's signature on the petition by the great and good on behalf of Polański; or the existence of said petition. Even Radosław Sikorski and Anne Applebaum, who are usually much more clear-minded, are decrying Polański's arrest.
The desire of the victim for the charges to be dropped brings to my mind why I oppose victim impact statements and the like. Civil actions exist to remedy the effects of torts on an individual. Where such an act has been defined as a crime at the time of its commission, criminal prosecutions are undertaken in order to remedy its effects on society. Should a criminal be put in jeopardy of greater punishment as a result of the victim (or victim's family's) greater ability to articulate in court?
Likewise, there are a number of reasons why a victim may not wish for a prosecution to go forward (especially in domestic violence cases). Prosecutions go forward nonetheless. One can even contemplate the possibility of the settlement agreement of a tort action having the provision that the victim not testify at trial. (I am stating a hypothetical, not making such an assertion with respect to Doe v Polański.)
I am curious if anyone knows what the 1977 sentencing laws provided for the charges to which Polański pled? I'll grant that the judge was a piece of work and that he engaged in terribly improper ex parte communications with the prosecution. Did this conduct so taint the proceeding as to render it void?
Posted by: Ed Unneland | Sep 30, 2009 10:57:33 PM
By the way, my spelling of Ms. Winger's first name is just a typo, not an insult.
Posted by: Ed Unneland | Oct 1, 2009 2:29:39 PM