I want to begin by thanking Dean O’Hear and Marquette University Law School for the opportunity to be October 2009’s “Alum Blogger of the Month.”

Roman Polanksi, a famous director of movies such as Chinatown and The Pianist, was recently arrested in Switzerland 32 years after he fled the United States after pleading guilty to a child sex offense in California.  According to Grand Jury testimony given by then 13 year-old Samantha Gailey, (viewable at the Smoking Gun website), Polanksi approached her to take pictures to be published in a magazine.  Gailey and her mother agreed and she went with him to Jack Nicholson’s home on March 10, 1977 to take pictures (apparently Jack wasn’t home that day, just an unknown woman).  After giving Gailey champagne while taking additional pictures of her, Polanski then gave her a Quaalude, which is a sedative similar in effect to barbiturates. 

Gailey testified that Polanski then enticed her into a jacuzzi and eventually into a bedroom where he performed oral sex on her, began vaginal intercourse, and asked her if “she was on the pill” and when “her last period was.”  She said the encounter ended after Polanski forced anal sex with her.

Originally charged with six felony counts including rape by use of drugs, perversion, sodomy, committing lewd and lascivious acts upon a child under 14, and furnishing a controlled substance to a minor, Polanksi entered into a plea bargain where he pled guilty to the lesser-included offense of unlawful sexual intercourse with a minor.  All the other counts were dismissed.

Before sentence could be imposed, Polanski, a French citizen, fled the United States and has since restricted his travel largely to France, Poland, Germany and the Czech Republic.  According to this article on TIME.com, the Los Angles County District Attorney’s office has tried to extradite Polanksi several times since his fleeing.  USC law school professor and former federal prosecutor Jean Rosenbluth seems to think that the effort to extradite Polanski may have been stepped up since he filed motions earlier this year alleging misconduct on the part of now-deceased Judge Laurence Rittenband, who was handling the case at the time.  The alleged misconduct is based upon a statement given by then-Los Angeles deputy district attorney David Wells who said that he had ex parte communications with the judge where he argued for more jail time for Polanski.  Wells has since recanted his statement, saying that he “embellished” his talk with the judge.

According to the TIME.com article, Polanski is now contesting extradition.  If unsuccessful and he was brought back to the U.S., he could face up to four years in prison for the initial crime he pled guilty to, plus an additional three years for what is known in Wisconsin as “bail jumping”- violating a condition of bail, in this case leaving the state without permission.

For both criminal defense practitioners like myself, and the public in general, this case raises several interesting and uncommon questions.  For example, what about the statute of limitations?  In Wisconsin, prosecutions for felonies must begin within 6 years (W.S.A. 939.74), and in the federal system it is usually 5 years for non-capital offenses (18 U.S.C. 3282- there are some exceptions like tax fraud).  The problem for Mr. Polanski is that the statute of limitations only helps where there was no prosecution started within the time limits.  Not only was the prosecution in his case started well within the time limits, he pled guilty early in the process also.  Federal law is clear and concise on this point, as the entirety of 18 U.S.C. 3290 reads: “No statute of limitations shall extend to any person fleeing from justice.”

How about the alleged judicial misconduct?  According to the TIME.com article, the judge handling Polanksi’s recent filing regarding the same has indicated he is open to arguments that misconduct had occurred.  However, he refused to rule on such misconduct until Polanski made a personal appearance in front of him.  This is pursuant to the “Fugitive Disentitlement Doctrine,” which states fugitives are not entitled to adjudication on their claims because if they are ruled against there can be no effective enforcement of the court’s order.  Basically, the judge is telling Mr. Polanski he can’t have his cake and eat it too.

What about Polanski defending the case on its merits, as it is now 32 years old, and the victim herself has stated publicly that she no longer thinks this case should be pursued?  Before he could do that, Polanski would have to move to withdraw his guilty plea.  If this case were in Wisconsin, Polanksi would have to show, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a “manifest injustice.”  This can occur when a defendant makes a plea without knowledge of the charge or potential punishment if convicted, or if the plea is not made knowingly, voluntarily or intelligently in some regard.  See State v. Cash, 2004 WI App 63, 271 Wis.2d 451, 677 N.W.2d 709. 

As a criminal defense attorney who handles appeals in both state and federal court, I think Polanksi would have a difficult time arguing “manifest injustice” occurred here.  I reviewed the plea transcripts , and it seems to have been well-handled, no doubt due in part to the high profile of the case.  Polanski clearly was made aware of and waived several important constitutional rights, including his right to a jury trial, his right to a lawyer (he was represented by one at this stage anyway), his right to confront his accuser, the right to subpoena witnesses and present evidence, and the right to remain silent and have the state prove its case beyond a reasonable doubt.  He also stated in his own words what the penalties were that he faced, and what his criminal conduct consisted of.  The process of California’s sex offender designation was also explained to him, along with the fact that the judge decided his sentence and did not have to go along with the plea agreement.

If he is returned to the U.S., what kind of sentence can Polanski expect?  Most people in our society are familiar with the current crusade against child sex offenders, exemplified by T.V. shows like “To Catch a Predator.”  Based on the facts of the crime alone, Mr. Polanksi can expect to receive a stiff punishment.  Other sentencing factors also aggravate his situation.  The federal statute that lays out what factors a judge is to consider when sentencing a defendant is an instructive example.  These include: deterrence of crime, both specific to the individual and in general to others in society; punishment for wrongdoing; and to promote respect for the law.  See 18 U.S.C. 3553.  However, these factors have to be balanced against the history, characteristics, and rehabilitative needs of the defendant and the public interest in protection from the defendant committing further crimes.  These last two factors are where Polanksi’s greatest hope for a lenient sentence lies: he is 76 years old and is probably considered a very low-risk to re-offend.  Also, he undoubtedly has done several positive things with his life while on the run from the law, including directing The Pianist, a moving film about the trial and travails of Polish Jews during World War II.  Whoever may end up sentencing Polanksi will have to juggle several competing factors to determine a reasonable sentence for him, and will no doubt leave many people unhappy about the outcome regardless.  My guess, though, is that any such sentencing would not occur for a long time as the extradition process unfolds.