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April 17, 2010

State prosecutors arguing against rights of victim in Polanski case

1_nf_fb_cover As detailed at this link, tomorrow officially starts National Crime Victims’ Rights Week (NCVRW), which has been a special week designated by the US Department of Justice for "promoting victims’ rights and honoring crime victims and those who advocate on their behalf" each April since 1981.  Thus, there is a special and sad temporal irony in this notable news story out of California, which is headlined "Prosecutors argue Polanski victim can't alter case." Here are the details:

Roman Polanski's victim cannot ask for the 32-year-old sex case to be dismissed against the fugitive director or otherwise impact the case, prosecutors argued in a court filing Friday.

In a filing to the California Second District Court of Appeal, Los Angeles County prosecutors argue a recent constitutional revision spelling out crime victims' rights does not grant them the power to determine the outcome of criminal cases.

They are also asking the appeals court to reject requests by Polanski's victim, Samantha Geimer, to have the case heard in another county and unseal recent testimony by a former prosecutor.

Prosecutors argue that granting her request for dismissal would "fundamentally alter the way in which crimes are prosecuted."  The filing argues that if victims were parties to criminal cases, cases could be dropped either through intimidation, coercion or public pressure.

Geimer petitioned the appeals court to dismiss the case and make the other rulings in a March petition.  That filing argued a 2008 constitutional amendment, dubbed Marsy's Law, gives victims more input into criminal cases. Geimer's attorney, Lawrence Silver, has argued twice before that the amendment meant his client's request for dismissal should be considered....

Geimer's filing is a separate appeal from one being pursued by Polanski's attorneys that seeks the appointment of a special counsel to investigate alleged judicial misconduct in the case.  The court has not yet ruled on Polanski's appeal.

California voters in November 2008 approved a measure that wrote specific victims' rights into the state constitution, including giving them more notice about criminal proceedings.  Geimer has repeatedly sought to have the case dismissed, arguing that renewed interest of the case and media coverage has led to her being repeatedly victimized.

I am troubled, but not at all surprised, that California state prosecutors are aggressively seeking to limit a crime victims' rights when those rights do not serve their interests.  Prosecutors are often eager to promote the rights of crime victims when it serves their parochial interests in a particular criminal case, but then are also often likely to disregard or even seek to dismiss the rights of crime victims when it undermines their interests in a particular case.

In light of the official start of National Crime Victims’ Rights Week, I wonder if any officials who work for the federal Office for Victims of Crime-- whose motto is "Putting Victims First" -- have considered filling amicus briefs in support of Samantha Geimer in the Polanski case.

April 17, 2010 at 11:46 AM | Permalink


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Perhaps if Mrs. Greimer would stop inserting herself into the proceedings, her name wouldn't be mentioned as much. Her behavior appears odd.

Polanski is a fugitive--the state simply cannot ignore that and should fight to get him back.

Posted by: federalist | Apr 17, 2010 12:02:29 PM

This is an extremely unusual case in which the victimization occurred decades ago. We should not lose sight of the fact that, in the huge majority of cases, it is the defense bar that wants to muzzle the victims (see, e.g., the NACDL's amicus brief in Carey v. Musladin), and that, understandably, victims far more frequently side with the state than with the victimizer.

In some rare instances, the victim's interests, as she sees them, are at odds with the state's. This does not change the fact that the state's attorney in a criminal case owes his professional obligation to the public interest, not those of a single victim. It is too obvious for argument that the public interest is not in letting a criminal get away with it by becoming a fugitive. No system can survive if it allows hightailing it to be the way to beat the rap.

Posted by: Bill Otis | Apr 17, 2010 1:08:30 PM

Seriously? That analysis is oversimplistic. Victims have no right to end prosecutions or even dictate the terms by which they will be conducted. That reality isn't anti-victim's rights, it's sound public policy. Nor is it the prosecutor's role to give in to a victim's demands just because they otherwise support (or even trumpet) the victim's rights cause.

As an appellate prosecutor, I've dealt with similar arguments, but never ones made by a victim in this manner. The prosecutor's argument illustrates the need for courts to distinguish between a victim asserting her legitimate rights and a victim trying to overreach and take control of a prosecution. The public policy motivating victims rights seeks to give victims an opportunity to be heard and their concerns considered. But there are other rights at issue in prosecutions, such as the public's right to punish criminals and defendants' rights to fair proceedings. It seems to me that the prosecutors here are just seeking to maintain the proper balance.

Professor, please stop with the cheap shots (no matter to whom they are directed) on your otherwise intelligent and informative blog.

Posted by: src | Apr 17, 2010 2:51:33 PM

horse pucky src this complete proceeding is a crock. they had their chance 30 years ago and when the judge and DA decided to toss the agreement and shaft the guy THEY LOST IT!

Posted by: rodsmith | Apr 17, 2010 2:53:42 PM

The problem with your analysis Bill is that you don't get to define the "public interest". The public gets to define that. And in fact, in writing certain safeguards into the California Constitution, they have in the most dramatic way stated what the public interest is as a de facto matter.

The fact that the public interest isn't always an endless search for vengence is what bothers you and federtalist.

Posted by: Daniel | Apr 17, 2010 3:39:29 PM

src, isn't the issue if she has a right to be heard?

"Roman Polanski's victim cannot ask for the 32-year-old sex case to be dismissed against the fugitive director or otherwise impact the case, prosecutors argued in a court filing Friday. "

Asking to be heard and the DA agreeing to dismiss are two entirely different things. As a matter of law, can she request it be dismissed or not?

Posted by: George | Apr 17, 2010 5:26:04 PM

Daniel --

It's true that I personally don't get to define the "public interest." Neither does the victim, and neither does the defendant (as if the defendant had any interest in defining it, as opposed to advancing his own private interest, the public be damned).

However, the public interest IS defined by the elected branches, who, after all, were put there by the public. The DA's office is part of an elected branch. If the citizens don't like how they're defining the public interest in this case, the next election is just six and a-half months away.

I'm not all that interested in the procedural wrangling. I'm more interested in the substantive question at the bottom of this case: Should a defendant be able effectively to beat the rap by absconding?

Posted by: Bill Otis | Apr 17, 2010 5:44:50 PM

Bill. We live in an age of procedures! You may not care about procedures but the rest of the people do. Should any defendant get away by absconding. No. But that interest does not lie isolated and distinct.

I find your comment about changing officials at the next election rather bizarre. What's the purpose of a Constitution? You make it should like a DA can ignore the Constitution and the only recourse the public has to that is an election. There's a term for that: it's called bad will. The public has a legitimate expectation that people who they elect to office honor the Constitution. If DAs can't do that maybe we should just get rid of DAs altogether.

Posted by: Daniel | Apr 17, 2010 6:18:10 PM

Daniel --

You're right that this is an age of procedures. Unfortunately, it has gone to the point that procedure is the whole ball of wax, and substantive justice gets the leftovers. But there are those of us who think that's not such a good idea.

I don't know California state law or the California constitution. I do know that in stating that the DA is violating the constitution, you are assuming your conclusion. Whether he is or not is to be determined in court.

If it were me, I would let the victim make any argument she wants. But her interests do not, to use your phrase, "lie isolated and distinct." In particular, they would not change the fact that the long term public interest does not lie in telling defendants that all they have to do to beat the rap is abscond and get away with it for a long time.

Posted by: Bill Otis | Apr 17, 2010 7:01:38 PM

ah but bill he didnt' BEAT the rap as you called it. His original deal with the state called for confinment in a psych faciltiy and to be examined and the state would accept the recomendation of the dr's...the doctor's released him after 45 days and say he wasn't a threat! considering the 30+ YEARS of no new charges he's either gotten damn good at hiding them or the doctors seemed in this case to KNOW WHAT THEY WERE DOING. That was what he agreed to and he DID THE TIME. it's only after that did the screwing come in when the DA and Judge decided to have a media event and toss the agreement. He left! He went home where LEGALLY they were not required to extradite hiim and the US knew it.

they then comitted a fraud using the swiss to do their dirty work getting around that LEGAL PROBLEM.

something our retarded set of govt officals might want to remember. i'd laugh my head off to see obama arrested when he stepped off his plane in euroope and charged with crimes against humanity for our actions in iraq and afghanistan among other counties.

he woulnd't be able to say a word since WE set the presidcnet on that one.

Posted by: rodsmith | Apr 18, 2010 3:00:24 AM

There's already case law in California stating that the victim's rights laws (including, as I recall, an earlier state constitutional provision) did not allow a victim to intervene and dismiss a case. That seems fundamentally sound and I sincerely doubt that the 2008 amendment incorporated any provision to the contrary. Prosecuting domestic violence cases is already difficult enough, and others have expressed the problems with giving victims a veto over the process.

Posted by: Alec | Apr 18, 2010 5:58:45 PM

Perhaps the reason that prosecuting DV cases is hard is that a lot of them are BS. And really, why shouldn't people be allowed to recant? Do couples need to have the state get involved in their lives just so that prosecutors can chalk up a few wins and judges can supervise a marriage?

Posted by: s.cotus | Apr 19, 2010 4:26:48 AM

Another aspect of this discussion is the situation where the plea or conviction after trial has not occurred and the prosecution needs the testimony of the victim in order to convict. The lobbyists for the states, sometimes with so-called victim's rights groups support, have convinced legislatures to pass "immunity" statutes which prevent the victim from refusing to testify on grounds of the Fifth Amendment. In such a case, victim comes to court, refuses to testify, the judge hears a motion to grant immunity and then orders the victim to testify against the defendant. Victim goes to jail for contempt if he/she refuses to testify. Some victims have a privacy interest in not going to public trial and testifying against grandpa for touching their breast ten years ago.

One defense for the victim is to invoke the Ninth Amendment right of privacy. The immunity statutes speak to the Fifth Amdt, not the Ninth. In Missouri, we call this Taking The Ninth. If you represent a victim and they wish not to testify then consider taking the Ninth.

The victim in the Polanski case wishes to put this behind her. The prosecutions insistence on pursuing this does perhaps serve society. My feeling is that it serves an ambitious prosecutor.

Posted by: mpb | Apr 19, 2010 5:01:22 AM

I'm with the D.A. on this one.

Posted by: public defender | Apr 19, 2010 4:03:58 PM

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