Monday, September 28, 2009

The Perils of Polanski

After more than three decades on the lamb, a Los Angeles County arrest warrant finally caught up with director Roland Polanski last weekend, as he arrived in Switzerland to accept a lifetime achievement award from the Zurich Film Festival. I don’t know much of Polanski’s work (I’ve seen Chinatown – good, but not great IMHO), but the sordid details of his case as they’ve come to light in the past couple of years caught my attention. Although the nitty gritty of how the system worked (or didn’t) in his case is fascinating, I’m also interested in what the reaction to Polanski’s arrest says about the criminal justice system and our perception of it.

But first, the very basic facts. In 1977, Polanski arranged for a private photo session with a 13-year old girl (set up by her mother, IIRC). The photo shoot wound up at Jack Nicholson’s house (Jack was out of town), where Polanski provided champagne and quaaludes and, according to the victim’s grand jury testimony, he raped her orally, anally, and vaginally. Polanski was charged with six felonies (including rape), but worked out a plea agreement and pleaded guilty to one count of unlawful sexual intercourse with a minor. He was sent to a California prison for 42 days for a psychiatric evaluation. One day before sentencing, Polanski fled, first to Great Britain and then to his native France. He’s been a wanted man ever since (although he’s managed a career that included a 2003 Best Picture Oscar for The Pianist).

Things were largely quiet on the case until last year, when HBO showed a documentary called Roman Polanski: Wanted and Desired, that delved into the mechanics of the criminal case. Particularly, and spectacularly, the movie included an interview with a prosecutor, David Wells, who had a great influence on the case behind the scenes. Wells was not the prosecutor on the Polanski case, except for some search warrant work early on. But he was the prosecutor regularly assigned to the courtroom of Judge Lawrence Rittenband, who presided over the Polanski case. According to Well’s interview in the film, he opined to the judge that the plea agreement was too lenient and would result in Polanski not getting any prison time. He also provided the judge with a news story about Polanski in Europe while awaiting sentencing that Wells construed as the director “flipping [the judge] off.” Most importantly, Wells gave the judge the means to send Polanski to prison for a short period of time in a manner that an appellate court couldn’t review – commitment for a psychiatric evaluation prior to sentencing.

In the film, both Polanski’s lawyer at the time as well as the prosecutor handling the case explained how Judge Rittenband seemed to change his opinion of the plea agreement based on “criticism” he’d received from unnamed sources (Wells, presumably). The judge told them he planned to send Polanski back to prison for the remaining 48 days available under the psychiatric exam statute and that if the parties didn’t agree with it he’d boot the whole plea agreement. Furthermore, everyone was supposed to go into the courtroom and agree to this “deal” as if it were happening real time. Neither party, nor the probation officer nor the victim and her family (via counsel), argued that Polanski should go to prison. Faced with that situation, Polanski bolted. Thus, as portrayed in the film, Polanski’s case was tainted by the ex parte arguments of a prosecutor to a celebrity obsessed judge who had a penchant for arranging off the record deals.

With that set forth, a couple of meta thoughts.

Of Waiting and Weighing
One fact looming over this case is the sheer passage of time since Polanski’s offense and since he skipped town. In the three decades since, he has apparently led a law abiding life. Although a French citizen, he’s cut off from the global center of his industry, Hollywood, due to the fact that if he set foot in the United States he would be arrested. That’s why, when The Pianist hit the Oscars, he didn’t grace the ceremony with his presence. Isn’t that punishment enough, along with the fact that he’s already done more time in this case than anybody outside the judge ever thought he should? I don’t know. The problem with that argument, as with when it was made regarding Sarah Jane Olson, is that it appears to reward evasion of the law and turn the whole process into an endurance test. I’m not sure that’s the way we want the system to work.

Another fact brought forth by Polanski’s defenders (or at least critics of his arrest), is that the victim in this case as repeatedly said that she does not want Polanski to go to prison. In fact, even back in 1977 she and her family maintained that position. There are reasons to wonder about that position back then (what was mom’s role? was she afraid that if her daughter was the “girl who put Polanski in prison” would her nascent modeling career be over?), but now, as an adult, she’s certainly entitled to it. Does that mean she should have veto power over a prosecution?

No. The case against Polanski is not framed as “victim v.” for a reason. It’s “The People of the State of California” doing the prosecution. The state has interests in enforcement of its criminal law separate and apart from what the victim of any crime wants. Should those wishes be considered? Sure, and in California they are required to be (as they are at the federal level now, in the rare case where there’s actually a victim involved), but they shouldn’t control. Victims and their families may have a lot of reasons they want things to “just go away,” but they aren’t necessarily going to forward the state’s goal of deterring future criminal activity and rehabilitating a wrong doer.

As to why, after all these years, the victim in Polanski’s case may want nothing to do with it anymore, I think Amanda at Pandagon makes some good points:

Victims of sexual or domestic violence are, for completely understandable reasons, mostly intent on getting acknowledgment that what happened was real, and that it was not their fault. And then they want to move on with their lives. Her needs were filled when she won a lawsuit against Polanski, and she has healed, I’m sure. But these kinds of crimes aren’t just about the current victim, but the larger problem.
Just because prosecutors typically wrap themselves in the mantle of victim's rights doesn't mean the victim should control the prosecution, regardless of how they feel about the outcome.

Other Criminal Justice Concerns
Let’s put aside, for a second, the question of whether it’s worth it to go grab Polanski because of the age of the underlying offense. Are there any other legitimate interests that the California criminal justice system (or the federal one, for that matter) have to be vindicated? A pretty big one, it seems to me.

Criminal law can be divided into two parts. One is the substantive criminal law – prohibitions against murder, rape, robbery, etc. – which is what we generally think of when we hear that somebody’s been charged with a crime. The other is what you might call systematic criminal law, that deals with the correct operation of the system itself. Into that category would fall things like perjury, obstruction of justice, and escape. Flight from a jurisdiction pending sentencing certainly falls under that umbrella, which means that Polanski has probably committed a further offense by being a fugitive all these years. Indeed, he appears to have violated federal law, 18 USC §1073 (in pertinent part):
Whoever moves or travels in interstate or foreign commerce with intent . . .to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which he flees, for a crime, or an attempt to commit a crime, punishable by death or which is a felony under the laws of the place from which the fugitive flees . . . shall be fined under this title or imprisoned not more than five years, or both.
Separate and apart from its interest in seeing that Polanski does (more) time for an offense most agreed he should have gotten probation from in the first place, the system has an interest in ensuring that someone of Polanski’s means and connections can’t simply skip out on the process when it turns against him. Sure, the process around Polanski, if it took place as Wanted and Desired, was fucked up and heading for an injustice. But you know what? I’ve got clients who think the same thing every day, but they know better than to run off. They’d be in for a rude takedown by the US Marshals and a whole lot more time in prison, to boot.

To make an analogy, suppose that Polanski was sent to prison and he was in immediate danger of being killed. He escapes. In that case, he’d actually have a defense to the escape charge, as long as he could prove that he “submitted to proper authorities after attaining position of safety.” US v. Williams, 791 F.2d 1383, 1388 (9th Cir. 1986)(California law appears to be the same). You can’t just keep on running, though.

All that said, I have some sympathy for Polanski given the farce that Wells and Rittenband made of his criminal case. Shockingly, the sort of behind the scenes dealings that scuttled Polanski’s case seemed to be part for the course in Rittenband’s courtroom. Given the unified front of prosecution and defense in this case, it seems like it would have been a perfect opportunity to drag that misconduct into the light. I can’t imagine defense lawyers I know letting judges get away with such stuff.

But my sympathies would be a little greater if Polanski hadn’t dealt so mercurially with the courts himself.

In 1997 his attorneys and the prosecutor agreed to try and resolve the case and a new judge (Rittenband having died in the interim) agreed that if Polanski returned to the United States and submitted to arrest, he would be released on bond and not sentenced to serve any additional time in prison. There was one condition – that the resolution of such a high profile case be televised. Polanski balked, allegedly because he didn’t want to deal with the media circus that would ensue from a televised hearing. That’s either naivety beyond par or just being stubborn. Any hearing in the case of a famous film director who pleaded guilty to statutory rape and then fled the country would produce a media circus, TV or no TV.

Then in 2004, Polanski successfully sued Vanity Fair for libel after it published a story alleging he made sexual advances to a young model on the way to his wife’s funeral. What’s so bad about that? He sued Vanity Fair, an American publication, in the United Kingdom, making use of their exceptionally lax libel laws, while appearing via video link from France. Why? Because if he set foot in the UK he would be arrested on the outstanding California warrant. That’s chutzpah, in my book.

In the end, I think Polanski may be guilty as sin, but also a victim of a horribly botched criminal justice system. How that susses out in the end, I have no idea.

UPDATE: On the issue of artists and crime, how about a word from George Orwell, at the end of an essay about Salvador Dali (via Volokh):
If Shakespeare returned to the earth to-morrow, and if it were found that his favourite recreation was raping little girls in railway carriages, we should not tell him to go ahead with it on the ground that he might write another King Lear.

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