Polanski and the Squishiness of Facts

Yeah, but what is truth? If you follow me.
- Lionel Hutz

I continue to be fascinated by the Roman Polanski saga. As the director sits in jail in Switzerland, folks on both sides of the case continue to hammer away at each other. In the process, it's become clear that a lot of people don't really have a firm grasp on the facts of the case and what those facts might mean.

There are basically two sets of facts that tend to get conflated in Polanski's case: one surrounding the crime itself and another dealing with the mechanics of the prosecution.

As for the facts of the crime, there are really two sets of facts. First, there are the facts as set forth in the victim's grand jury testimony, which formed the basis of the original six-count indictment against Polanski. The Smoking Gun has the transcript here. That's where the most disturbing facts come from - the booze, the drugs, the victim's repeated attempts to get Polanski to stop. It's stomach churning stuff. It's easy to see where charges like rape by use of drugs and sodomy come from.

But, Polanski's defenders rightly say, that's not what Polanski pleaded guilty to and, therefore, stands convicted of. Polanski pleaded guilty to one count of unlawful sexual intercourse with a minor, a.k.a. statutory rape. A felony, yes, a crime, to be sure, but not quite the same on the scale of evil as forcibly raping a drunk, drugged girl. The more serious allegations were never put before a jury, the victim never cross examined.

The case really does play out differently depending on which set of facts you embrace. If Polanski is a violent sexual predator, it seems unreasonable for anybody to complain about hauling him back to court from across the Atlantic. On the other hand, statutory rape is a notoriously foggy charge, which tends to show Polanksi as more misguided rather than evil, particularly given his law abiding life ever since (set aside being on the lam for the moment).

The facts of the case mechanics themselves don't fare any better. From the outside, the case looks like any other: multiple-count indictment is pleaded down to single-count offense. Among other reasons, the victim's family didn't want her to go through the rigors of a trial, so the state was willing to deal. At the plea hearing (also available at The Smoking Gun), Polanski admits to having sex with the victim and acknowledges that the judge is not bound by the plea agreement and will determine the final sentence.

What went on behind the scenes, however, is largely drawn from the documentary Roman Polanski: Wanted and Desired, in which David Wells, a former prosecutor (but not the one on Polanski's case), tells how he essentially convinced the trial judge to send Polanski to prison, even though everyone else involved (prosecutor, defense counsel, probation officer, victim) argued for probation. The judge's intent to impose more prison time is what led Polanski to bolt. The revelations in the film were the basis of Polanski's motion to dismiss the case last year.

What's odd is that when it comes to which set of facts get emphasized, the positions flip from the facts of the case. Polanski's defenders are quick to jump on Wells's interview in the documentary, even though it was not under oath and, obviously, has never been subject to cross examination, where they minimize the sworn victim's testimony about what actually went on [see update below]. By contrast, the other side harps one the generalities of the plea colloquy to argue that Polanski knew what he was getting into when he pleaded guilty.

And now, there's a further complication to add into the mix. Marcia Clark, famous for not convicted OJ Simpson, reports on an interview with Wells in which he claims that his story in Wanted and Desired was almost complete fiction. He labels himself a liar, which leaves Polanski's allegations of judicial and prosecutorial wrongdoing where, exactly? Maybe, with the heat generated by the doc and Polanski's arrest, Wells is playing damage control and trying salvage his reputation. Or, maybe he was pulling the doc director's leg the whole time. Either way, it's hard to build a case with a witness who admits to being a liar (cue Witness for the Prosecution: "The question is whether you were lying then or are you lying now... ").

The bottom line is that "truth," in any case is a slippery concept. But in this one, it's slipperier that it appears at first glance. If you follow me.

UPDATE: One of the most vocal critics of Polanski's arrest and possible extradition is Jeralyn over at TalkLeft, with whom I generally agree on these things. However, she displays exactly the kind of selective use of facts I'm talking about, as expressed in the final comment in this thread:

Right before the thread closed, someone posted the link to the state's answer to Polanski's motion to dismiss. Since the first 7 pages of it recount grand jury testimony never proven in court, which Polanski and his lawyer did not have the opportunity to cross-examine, and charges to which Polanski never pleaded guilty or admitted, I am not hosting it here. You can read the legal arguments in the answer which begin on page 7 here.

I'll write more on this case where there are new devolopments [sic]. The self-serving sudden recanting by DA Wells is not a new development worthy of a post in my view.

In other words, the facts that support the argument to "free Roman" (from an unsworn interview in a documentary film) are taken as gospel truth, while those that do not (the sworn grand jury testimony, Well's fresh recantation) are not only ignored but purged from the argument. That's not a rational way to have an argument.