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January 6, 2010

Roman Polanski asking to be sentenced in absentia

As detailed in this new Reuters report, the Roman Polanski case has taken another interesting turn:

Fugitive film director Roman Polanski asked a Los Angeles judge on Wednesday to sentence him in his absence on a 1977 charge of having sex with a 13-year-old girl.  Judge Peter Espinoza set a January 22 date for a full hearing on the request, made by Polanski in a notarized document signed December 26 in Switzerland and submitted by the Oscar-winning director's Los Angeles-based lawyer, Chad Hummel.

But prosecutors, who have long sought to bring Polanski back to Los Angeles, said they would oppose any bid to sentence him until he turns up physically in court.

Polanski, 76, who won an Oscar in 2002 for "The Pianist", is under house arrest at his villa in the ski resort of Gstaad, Switzerland, fighting extradition to the United States.  He was arrested in Switzerland in September on a U.S. warrant.

He fled the United States in 1978 after pleading guilty to unlawful sex with a minor.  Polanski has said he feared the judge in the case, who has since died, was going to renege on an agreement to sentence him to the 42 days he had already served behind bars.

The dual Polish-French national has spent most of the past 30 years living and working in France, which has no extradition treaty with the United States covering the crime.

Wednesday's hearing followed a suggestion by a California appeals court last month that sentencing Polanski in absentia could be one way to resolve the decades-long battle to bring him to justice.  But prosecutor David Walgren said Polanski should come back to California and not continue to fight the case "from the comfort of his Swiss chalet in the Alps."

Swiss authorities have said they will make a decision on extradition in early 2010.  A California appeals court in December denied Polanski's bid to have the unlawful sex case dismissed due to alleged judicial misconduct.  But the appellate panel said the misconduct allegations were "extremely serious" and should be investigated.

January 6, 2010 at 09:34 PM | Permalink

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Comments

Another example of the leisure class playing by a different set of rules. Strip him of his wealth and directorship and there never would have been a 42-day plea deal (did the prosecutor write an editorial justifying that one?), nor would there be a fight over extradition.

The stipulated facts of this case merited a presumptive life sentence. But I guess when a famous person is involved, it's not "rape rape."

Posted by: Res ipsa | Jan 7, 2010 8:34:40 AM

He'd have a better argument if he had raped the 13 year-old "in absentia." Since he did it up close and personal, so to speak, maybe that's how he should do his sentencing too.

Posted by: Bill Otis | Jan 7, 2010 9:19:02 AM

i think both of you are missing the big picture. IN 1978 when this happened it was still a slap on the wrist. Just because people like you have went stupid over sex offences and now want to repunish those old crimes DOESN'T MAKE IT LEGAL.

Posted by: rodsmith3510 | Jan 7, 2010 11:58:04 AM

I am quite old, and do remember when we considered being raped very bad luck. I'm glad we don't live in that place anymore, but - is this really a good use of scarce tax payer dollars?

My real question is - what does it mean We have no extradition treaty with France covering this crime? I think it's a matter of a reporter who hasn't done their homework>

Posted by: beth | Jan 7, 2010 12:16:28 PM

rodsmith3510 --

"Just because people like you have went stupid..."

That's a treasure. I'm going to tuck it away. Thank you.

Posted by: Bill Otis | Jan 7, 2010 1:36:16 PM

Yes, rodsmith--my call for a presumptive life sentence for the drugging and raping of a 13 year old girl is because I have become "stupid over sex offences." It has nothing to do with the egregious offense Polanski admitted to, which I will not describe in detail for fear of vomiting. Polanski fled because he was afraid that the judge saw through the injustice of the plea deal, and was likely to impose a justified term of years. He should not under any concept of justice be able to use his cowardice to estop execution of his rightful sentence.

Posted by: Res ipsa | Jan 7, 2010 1:57:30 PM

"Yes, rodsmith--my call for a presumptive life sentence for the drugging and raping of a 13 year old girl is because I have become "stupid over sex offences." It has nothing to do with the egregious offense Polanski admitted to..."

Stupid? Polanski did not admit to "the drugging and raping of a 13 year old girl." TMZ published the charges and the grand jury testimony only to get more page views, which is more money in its pocket. In this way, our most powerful protection of the Bill of Rights, the First Amendment, safeguards the Consitution.

Posted by: Anon | Jan 7, 2010 5:16:45 PM

I'm sorry, you are right. He only admitted to unlawful sexual intercourse with a 13 year old girl--also known as rape in, well, every state in the union and under federal law. He also stated his understanding that the judge could determine whether his offense was a misdemeanor or a felony, and could impose any sentence within the applicable range.

Lock him up.

Posted by: Res ipsa | Jan 7, 2010 7:02:27 PM

An interesting system of justice. When plea bargaining, the accused is told by his attorney that he will receive a specific sentence if he forgoes a trial and pleads guilty to an offense. The accused is also told that his chances for a harsher sentence are much greater if he proceeds to trial, indeed very true. Of course, not in this case but in many, the defendant is financially unable to hire competent legal council.

At sentencing, the accused is asked if he was promised anything for the guilty plea. He is advised by his attorney to answer no. At this point, he has lied to the judge and finds himself in a double bind. This doesn't seem to make people cringe.

Posted by: beth | Jan 7, 2010 7:41:48 PM

beth --

1. It is my experience that defense counsel do not PROMISE a specific sentence. What they typically say is, "Most people with cases like yours wind up with X sentence if they plead guilty. The judge might vary, but usually he doesn't."

That is not a promise, and could not be understood to be a promise.

2. In my district, the plea colloquy also had a line like this: "Do you understand that any estimate of the sentence you might have recieved is merely that -- an estimate -- and is not binding on counsel, the probation office or the court?"

3. An indigent defendant is typically assigned a public defender. In my experience, they are at least as good as retained counsel.

4. When the defendant is asked at sentencing whether he has been promised anything in exchange for his plea, he always has the option of.....well.....how should I say this........TELLING THE TRUTH!

Posted by: Bill Otis | Jan 7, 2010 8:10:35 PM

Yes, that would be ideal. If this is conveyed, and public defenders are as talented as retained counsel, why do 90% to 98% of defendants choose not to defend themselves at trial? It is a mystery.

Bill, I don't doubt that in good faith you believe that there is a level playing field, but the magnitude of the resources available to the prosecution is awesome for ordinary citizens. When resources are seized civilly, your records have been taken and an army of professionals is sorting through your life, the criminal justice system does seem hopeless. Innocent people make poor decisions, thinking it must be their only hope.

Posted by: beth | Jan 7, 2010 10:06:27 PM

first, justice to be served to George Bush for 9/11 and Iraq, Bill Clinton for Kossovo, Dick Chiney, Greenspan and army of similar casesm and then America should ask 76 years old Polanski about his sex practices 33 years ago, and then Americans should find a sense in such a justice at time of Neocons terrorizing the world.

Posted by: jan, student | Jan 7, 2010 10:32:01 PM

beth --

The reason 90% of defendants pass on a trial and go for a plea deal is that they correctly believe the government has the evidence to prove what they've been up to, and they're better off getting the relatively lenient dispostion a plea bargain offers.

The government, at least in the abstract, has more resources than the average defendant, that's quite true. It is in part for that reason that the defendant is given strategic advantages over the government, e.g., that he is presumed innocent until the government proves its case BRD; that he has no obligation to disclose inculpatory information (but the goverment is required to disclose exculpatory information); that (in many jurisdictions) he has more jury strikes than the governnment, and so forth.

"Innocent people make poor decisions" -- no doubt about that. But there's a difference between a "poor decision" and telling the court under oath that you're guilty when you're not. I've seen my share of lying in court, and it's not by defendants who admit to doing stuff they didn't do. It's by defendants who deny doing stuff they most certainly DID do. By leaps and bounds, that's the kind of lying that really goes on in court.

I wish it were otherwise, but it ain't.

Posted by: Bill Otis | Jan 7, 2010 10:58:27 PM

jan, student --

Every once in a while I am reminded of the wisdom of the phrase, "Thank God for your enemies." You have reminded me again, and I thank you.

Posted by: Bill Otis | Jan 7, 2010 11:03:12 PM

Bill, we just have a different perspective and point of view. You have a unique perspective due to your chosen profession and your chosen specialty within that profession. It is a rarefied atmosphere and few of us are in that camp. We judge the balance of power in a different way. Physicians, Professors, Engineers and Building Contractors all know and judge power from their own perch.

All these people also feel that they own their government. If they think their government is not responsive or fair, and that means all branches, there is push back. That's what we're experiencing because of the ever expanding power in all branches. It's not even a partisan dispute although there are many striving to make one. I understand this tension - in areas where I have lots of power - I am correct.

Posted by: beth | Jan 7, 2010 11:27:27 PM

horse pockey! i PLEA BARGAIN is just that a BARAIN between the state and the defendant. if your not doing it that way. YOUR PART OF THE PROBLEM. The judge has two choices. ACCEPT IT or NOT! PERIOD! It's a contract between the parties. your not LEGALLY allowed to change them unalaterally. NOT EVEN A JUDGE.

If the judge doesn't like it he/she has a choice...don't accept it and TAKE IT TO TRIAL! of couse considering 98% of ALL CASES IN THS COUNTRY go to trial..the system would go BOOOM!

Posted by: rodsmith3510 | Jan 8, 2010 12:02:46 AM

hey bill when you typed this how did you manage to keep a STRAIGHT FACE!

"The reason 90% of defendants pass on a trial and go for a plea deal is that they correctly believe the government has the evidence to prove what they've been up to, and they're better off getting the relatively lenient dispostion a plea bargain offers."

the majoriy take the plea bargian since they like me have seen article after article ..news report after newsreport of DA's and Judges who lie, cheat, and defraud the public to get a confiction...NO MATTER WHAT IT TAKES. Govt officials who have no problem piling charge after charge on in the knowledge that if the individual DARES to take it to trial SOMETHING WILL STICK since the average american is still asleep and seems to beleve the liar's we now have in govt when they stand there and lie to the jury.

Posted by: rodsmith3510 | Jan 8, 2010 12:06:40 AM

this part especialy makes me sad. The appealat judge know the changed plea deal was rigged and illegal...and becasue it's over a sex offence CHICKENED OUT!

"A California appeals court in December denied Polanski's bid to have the unlawful sex case dismissed due to alleged judicial misconduct. But the appellate panel said the misconduct allegations were "extremely serious" and should be investigated."

Posted by: rodsmith3510 | Jan 8, 2010 12:08:24 AM

hey bill you talk about this!

"2. In my district, the plea colloquy also had a line like this: "Do you understand that any estimate of the sentence you might have recieved is merely that -- an estimate -- and is not binding on counsel, the probation office or the court?"

Just wondered where you put it. at the bottom of one of the law few pages in microprint....Just like a crooked used car salesman.

Any normal person if you told them that would tell you to shove your so-called no-plea bargain WHERE THE SUN DON'T SHINE... After all if it's not binding why do it?

Posted by: rodsmith3510 | Jan 8, 2010 12:10:40 AM

rodsmith --

Being fond of people who just say what they think and don't try to get cute about it, I have to be fond of you. Ponderous, pious and slick people are all over the place. You are, in your way, a breath of fresh air.

Posted by: Bill Otis | Jan 8, 2010 12:42:10 AM

Bill - I know I'm sometimes snarky, but that is what I think. I was off track and will go back to my original real question which I'm very interested in.

Aren't we asking for Polanski's extradition from Switzerland. Why would that have anything to do with our extradition treaty with France? Would being a duel French-Polish citizen mean that extradition treaty's with France and Poland come into play, as well as the extradition treaty with Switzerland - I wouldn't think so.

I think the hesitancy to extradite him has something to do with stipulations put on the extradition that the Swiss think the US will not honor. I'm sure that the penalty for the crime he plead is not as severe in Switzerland. Ordinarily, the US disregards these stipulations as soon as the prisoner's feet hit the ground. Maybe that is why he's not being extradited

I don't know if any of this is relevant, I'm just questioning.

Posted by: beth | Jan 8, 2010 1:16:25 PM

Rod Smith: You may have a fundamental misunderstanding of the process. There is difference between "plea bargaining" and "sentence bargaining" especially with regards to federal criminal law. In federal court the latter does not exist. Parties can stipulate as to relevant facts, waive PSR's that might contradict those facts, but ultimately it's up to the judge - and no one can promise what will happen.

It used to be more predictable under the mandatory guideline system. Now, thanks to ivory tower academics (including those on the Supreme Court), all predictability is gone and sentencing in federal court is a game of pure disparity based on the likes and dislikes of particular appointed judges. A tyranny of one.

While the mandatory system was not perfect, it's biggest flaws were due to other Congressional mandates - mandatory minimum punishments and other meddling. But instead of reforming a system that handled regional, economic, and ethnic disparity conclusively better than a system of judicial noblesse oblige, academics gleefully tore down the supports of an overwhelmingly more fair, if imperfect, system.

It's not an accident that we see wild variances post Booker in child porn and fraud cases where the defendants are typically white men with retained counsel while, for the most part, academics say all the right things about racial disparity and ignore Congress' failure to do anything about it (crack, anyone?).

Posted by: Ferris Bueller | Jan 8, 2010 1:47:11 PM

beth --

You are among the least snarky people on this site, IMO. You speak with a soft voice and empathy. I'll bet the judges think you're the bees' knees.

On Polanski: I don't know a whole lot about the case. I don't even know where he is, although I think it's house arrest in his Swiss mansion.

My knowledge of extradition law is close to zilch. I would think our extradition request is being made of whatever country has physical custody of him. To the best of my knowledge, the only extradition-linked penalty restriction is on the death penalty. I know Mexico has refused to extradicte some of these violent drug lords unless we agreed not to seek the DP. Every time we made that agreement, we honored it.

My basic take on Polanski is that his behavior was atrocious in addition to being illegal, and that to allow him to make good on his flight to avoid sentencing is to create all the wrong incentives. It will also justifiably be used by those who believe the justice system gives breaks to jet setters that the man on the street wouldn't get. If this were Joe Smith, plumber rather than Roman Polanski, international film producer, few if any would question that he should have to return to face his overdue sentencing. Indeed few if any would give a hoot about the case at all.

Posted by: Bill Otis | Jan 8, 2010 3:21:27 PM

bill: "He'd have a better argument if he had raped the 13 year-old "in absentia.""

me: actually he wouldn't. its not like this country is soft on child porn offenders or people who are merely assessories to a crime.

Posted by: virginia | Jan 8, 2010 3:22:37 PM

You are right, it does undermine people's faith in the consistency of American justice. If he were just an ordinary citizen he would be state side.

I also thought that the Swiss extradition treaty would be the operable one. That's why I didn't think the Reuters reporter had done their home work when they referenced the French Treaty. The most famous extradition conflict I remember was the Ira Einhorn Case. He was the Harvard Counter Culture professor who was indicted for murder. He fled and was tried and convicted in absentia and given life in prison. Many years later, he was found in France and France refused the extradition as he had not been able to defend himself at trial. Cut to the end - Pennsylvania passed a law just for the purpose of getting him extradited so he could be tried again.

Right now there is the case of Marc Emery in Canada who sold cannabis seeds in the US. He has a plea agreement, but there is lots of stuff going on about his extradition and it is still up in the air. I used to know many cases where extradition was refused, but can't cite them now. Switzerland did not extradite for many financial crimes such as income tax evasion money- laundering etc as they were not illegal in Switzerland - Luxumbourg and Belgium also.

Many countries put stipulations on their extraditions stating limits for the prosecution, Usually, after the extradition is complete, a superseding indictment is issued and prosecution proceeds. After 9/11 many of these extradition treaties were tightened up to facilitate the process, but many countries feel that some of this violates their sovereignty.

I am troubled by enforcing our law in foreign sovereign countries. I would fear having foreign countries enforce their law on our citizens in our country or theirs. It is especially dangerous for public figures, but ordinary citizens are also impacted, sometimes without any public acknowledgement. This is long winded and must end.

Posted by: beth | Jan 8, 2010 5:27:33 PM

hmm

"Rod Smith: You may have a fundamental misunderstanding of the process. There is difference between "plea bargaining" and "sentence bargaining" especially with regards to federal criminal law. In federal court the latter does not exist. Parties can stipulate as to relevant facts, waive PSR's that might contradict those facts, but ultimately it's up to the judge - and no one can promise what will happen."

I will give you this one. of couse it would help if the idiots in fed courts would stop using the words "plea bargain" if they don't exist in federal courts...

but in this case we are talking about a calif court. who screwed the pooch big time. this case needs to be tossed. Especially when you add in the sneaky tricks of the govt to wait till he was out of his own country before trying to grag him via a 3rd party.

Posted by: rodsmith3510 | Jan 8, 2010 9:01:57 PM

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