The Chicago Tribune reports:
French Culture Minister Frederic Mitterrand was quoted in French media as saying, “In the same way that there is a generous America that we like, there is also a scary America that has just shown its face.”
The law is supposed to be scary to criminals — and the law’s persistence, over the span of decades, is scarier still, but rightly so. People shouldn’t be able to evade justice by fleeing to a hospitable jurisdiction. Sometimes they in fact can, because of various legal restraints on extradition. But if they slip up and fall outside the protection of those regimes, justice should indeed pursue them, and in the process scare others into realizing that justice is not easy to avoid.
Conversely, generosity here would be a misplaced generosity. The only person who rightly deserves generosity is the victim, who understandably doesn’t want a fresh outbreak of publicity. Some victims are emotionally helped by the punishment of those who victimize them, but others might on balance be hurt by it. And indeed this risk is usually greater many decades later, when the satisfaction of knowing that the person who harmed you is being punished is generally less, and the worry about renewed unwanted publicity is the same or even greater.
But we also need to think about not just generosity but also the simple debt we owe to other potential victims, to do what we can to prevent such crimes in the future — both by deterring potential victimizers and by reinforcing the norm that even fame, money, and talent shouldn’t protect one against punishment. And generosity to Polanski? It’s hard to see why he is a fitting target for generosity. Some say he has suffered enough; and without doubt he has paid a cost. Practical exile even to a friendly country in which one can still work and be celebrated is something of a cost. But it’s not the sort of cost, it seems to me, that criminals of this sort need to pay.
Naturally, much depends on the nature of the crime. The milder the crime, the less of an imperative there is for punishment, and of course the less the proper punishment should generally be. And even this crime, while serious, is not as horrific as some crimes, such as murder or forcible rape of children. (The statement of the victim, to the extent that it is uncolored by the financial settlement with the criminal — and I can’t say in this case whether it is or it’s not — is certainly some evidence of the magnitude of the harm done in this case, which in turn is part of the evaluation of the magnitude of the crime.)
But this was no normal tryst with a 17-year-old, of the sort that might be labeled statutory rape but is generally not prosecuted, may not be much different from legal sex with an 18-year-old, and would in fact be legal throughout most of the United States. This was apparently sex with a 13-year-old girl to whom Polanski had given champagne and part of a Quaalude. By any standard, this is a very serious harm, one for which the “42 days in prison [spent for] diagnostic tests” before the conviction does not seem an adequate punishment, especially given that Polanski’s fleeing lost him the benefit of any sentencing discount he might have hoped to get for plea-bargaining (though it sounds like the discount wouldn’t have been as much as he’d wanted).
So, yes, it’s a scary part of America that tries to pursue justice even 32 years later. And there should be a scary part of France that does the same to those who commit serious crimes in France, and a similarly scary part of all civilized countries.
Thanks to InstaPundit and Megan McArdle for the pointer.
Chris says:
I am really mystified by Polanski’s defenders, particularly those who think that the quality of his films is somehow justifies or mitigates his actions. The laws do not contain exceptions based on the talent of the criminal.
September 29, 2009, 9:56 ambski says:
I don’t know if its still true, but French prisons, not that long ago, were MUCH scarier than the worst prisons in the US.
September 29, 2009, 9:58 amLaura(southernxyl) says:
It wasn’t a tryst at all. It was supposed to be a photography session. The victim’s grand jury testimony indicates that she repeatedly said “no” and asked to go home, and that she didn’t fight because there was nowhere to go and no one there to help her. “Sex with a 13-year-old girl” just doesn’t really seem like an accurate description to me either.
September 29, 2009, 9:59 amNelson Lund says:
Didn’t the girl testify that she tried, unsuccessfully, to stop him from performing cunnilingus, vaginal sex, and anal sodomy? If so, it’s odd that this detail is missing from so much of the media coverage. Or this just another urban myth?
September 29, 2009, 10:02 amMark N. says:
I, personally, think this hoopla is unfortunate mostly because I’m not sure who it will benefit, while it appears it will further harm the victim. The victim has said for years that she wants the charges dismissed and this story out of the news so she can go on with her life. The renewed media frenzy and focus on the case is of course the opposite of that.
If he is extradited, there will be an even more extended media circus. Worse, it may not even end with him in jail, since there appears to have been at least enough of a question of misconduct in his initial case that there will be a series of hearings, and possibly a new trial.
September 29, 2009, 10:03 amBill Poser says:
What I find even weirder about Polanski’s defenders is who they are. That friends and colleagues in the movie industry would support him is irritating but not all that surprising. But that senior officials of the French government would support him is disturbing. They at least should support the rule of law, and no one can argue that he is innocent or that he has been denied due process.
September 29, 2009, 10:03 amLugo says:
Justitia. You know, the chick who blunders about blindfolded, lumbered with a scale and a sword?
September 29, 2009, 10:09 amarthur says:
even this crime, while serious, is not as horrific as some crimes, such as murder or forcible rape of children.
In fact, Polanski’s crime was the forcible rape of a child, although he pleaded to a lesser offense.
September 29, 2009, 10:12 amBen says:
This review of the Polanski documentary in Salon is worth reading. The Smoking Gun also published the victim’s grand jury testimony here.
Although news stories (and this blog post) typically describe Polanski as having “sex” with the victim, she testified that Polanski stopped having vaginal intercourse with her after Polanski asked if she was on the pill, and she told him no. At that point:
A. “He lifted up my legs and went in through my anus.”
Q. “What do you mean by that?
A. “He put his penis in my butt.”
Call me crazy, but I think the anal rape of a 13-year old girl given alcohol and drugs — and who testified that she cried and resisted throughout the rape — should be prosecuted to the fullest extent of our scary American laws.
September 29, 2009, 10:19 amDavid Nieporent says:
While Polanski has obviously been prevented from traveling to the U.S., as he used to do, he’s not American. I hardly think forcing a French citizen to live in luxury in France counts as “exile.”
(Not to mention that it was 100% self-imposed.)
September 29, 2009, 10:22 amSuperSkeptic says:
Mark N, while I completely disagree with you, I think you (and EV) have made one good point by implication. It is this point that makes this situation sticky, with seemingly no good solution: It is that the state is prosecuting this crime against one victim as if we were all the victim. Private rights of action are the state’s prerogative today, therefore, whenever the state decides it wants “justice” in the name of “the people” – it get’s it. We don’t necessarily, nor does the victim – necessarily.
But, I guess we’ll all be deterred, won’t we?
September 29, 2009, 10:23 amJasonF says:
I think this case is troubling to a lot of people for a couple of reasons.
First, it divides us based on how we see the criminal justice system. For those who see the criminal justice system primarily as a means of punishment, the issue is simple: Polanski committed a crime and should be put in jail. However, for those who see the criminal justice system primarily as a means of protecting society (either through rehabilitation of criminals or, failing that, isolation of criminals from society), the justification for imprisoning Polanski is not as strong.
Second, the victim’s opposition to the prosecution complicates this. Professor Cassell has written extensively in support of giving victims of crimes a voice in the process. Typically, that voice will be speaking in support of the prosecutor. When it does oppose the prosecutor, it will often be because there is some relationship between the victim and the accused that influences the victim’s desire to prosecute (think of the paradigmatic abused wife who doesn’t want her abusing husband thrown in jail). Here, though, the victim opposes prosecution and there are not any complicating factors that allow us to explain the opposition away. That’s giving some people pause.
Finally, regardless of the seriousness of Polanski’s crime (very serious, at least by today’s standards) and the lightness of his sentence (very light by today’s standards), there’s a certain sense that the criminal justice system should play fair. And given that Polanski agreed to a plea bargain under promises of a particular punishment, and then was told he would likely have to face a much harsher punishment, many people’s sense of fairness is offended.
September 29, 2009, 10:28 amBenBen says:
Watch. Someone is France will file a criminal charge against him, such as theft of a valuable item…. a serious enough charge to be a felony and warrant extradition back to France. Then they will get a warrant, and seek his extradition from Switzerland. He will waive extradition to France, and then, after he is safely back in France, the missing item will be “found” and charges dropped.
And the circus will be over.
September 29, 2009, 10:31 amtroll_dc2 says:
One thing that I have noticed in ALL of the stories that I have seen since the arrest was announced is that there has been no mention of the libel lawsuit that he brought in England against Conde Nast that was based on an error in Vanity Fair (an American publication) against an American defendant for a story about an alleged quasi-sex-type event in New York (an American location) involving Polanski (who was an American citizen at the time, I think). The plaintiff Polanski was living in France at the time because France was a safe haven for him, and he testified using electronic means because he could have been extradited if he had set foot in England. But the English courts love libel cases, they seem to hate the First Amendment, they had no trouble accepting jurisdiction despite the absence of the plaintiff and the obvious forum non convenients elements, they applied their own law, and they socked Conde Nast for 50,000 pounds and a ton of attorneys’ fees. This is libel tourism with a vengeance. In no way would he have collected a penny in this country. So I have no sympathy for this person.
Here is The New York Times’ report of the decision.
September 29, 2009, 10:32 amtroll_dc2 says:
The Washington Post yesterday had an interesting question and answer session on this matter. This Q and A exchange seems relevant to this thread:
September 29, 2009, 10:42 amMartinned says:
I’d say that on the one hand, the problem here is similar to the reasons why we have statutes of limitation: the threat of punishment should be removed after some passage of time. I’d imagine that a prosecution here would normally be time-barred, except that he fled from justice after pleading guilty, instead of the more normal form of flight immediately after committing the crime.
On the other hand, the problem is that our American friends have some very unusual ideas about criminal “justice”. (I noticed this one just yesterday.) Abovementioned issues aside, Polanski certainly deserves to be punished, but not with the severity that would presumably await him in the US.
(My quick check of the Dutch penal code suggests 8 years max. In practice, given that, while on the lamb, he has shown no propensity towards reoffending, and given that he is a first time offender, I can’t imagine that they would give him more than one year, plus some more suspended.)
September 29, 2009, 10:42 amDangerMouse says:
It shouldn’t surprise people that the libs in Hollywood are protesting Polanski’s prosecution. Their fanatical devotion to all things sexually deviant is well known, as is their distaste for the morals of the people. The Hollywood libs are elites to whom the petty laws and morals of the people don’t apply. Do something noteworthy and you’re forever free of the entanglements of morality and criminal punishment that the little people remain subject to. It’s the same reason Ted Kennedy could prosper in public life after killing Mary Jo. It seems that many people believe in that sort of mentality and continue to esteem scoundrels like Polanski and Kennedy, no matter what sort of crimes they commit.
September 29, 2009, 10:43 amGeneral Disarray says:
Perhaps you haven’t seen it mentioned because it has absolutely nothing to do with his arrest or possible extradition? Just a thought.
September 29, 2009, 10:44 amgab says:
I haven’t liked him since he sliced Jack Nicholson’s nose…
September 29, 2009, 10:44 amLior says:
Jasonf:
It is precisely because the victim is emotionally involved that the victim should not be a side to criminal proceedings. Dealing with Mr. Polanski is not about retribution; it’s about protecting society in the future (through deterrence; Mr. Polanski himself does not seem likely to re-offend).
A well-to-do man committed a crime; the court refused to accept his plea bargain deal so he fled the country. However, fleeing felons should not be able to use their wealth and fame to avoid prosecution, and a French cabinet minister arguing that Mr. Polanski’s creativity should somehow count in his favour only strengthens the argument for having him extradited and sentenced.
September 29, 2009, 10:46 amdrunkdriver says:
These kinds of comments (“scary” and the like) reveal the most despicable sort of anti-Americanism. Polansky was a 41-year-old man who gave drugs and alcohol to a 13-year-old, had intercourse with her against her will, then fled the country after pleading guilty. He should be extradited, period.
If episodes like these reveal the differences between the US and Europeans, this is one time I’m 100% happy to be on the American side. I cannot understand why we should be expected to let him flout the law.
That said, while I haven’t seen the film defending him, it appears the judge in his case may have improperly discussed sentencing options with the DA after Polansky’s guilty plea. The remedy for that would be recusal of the judge, perhaps, which is a non-issue here since the judge is long since retired and deceased. Polansky should be returned to the US to face sentencing, and if, as he claims, he had an agreement for a probated sentence, the sentence should be imposed. Even if there was not an agreement to probation, I don’t support imposing a prison sentence on him after all these decades, especially given the victim’s sentiments.
September 29, 2009, 10:46 amPatHMV says:
There’s no “apparently” about it. TheSmokingGun.com has the plea transcript. She was 13. He knew she was under 13. He admitted under oath in open court that he knew she was 13. According to her grand jury testimony (linked to at Patterico), she said “no” repeatedly, both initially and during the act.
This wasn’t sex of any sort, it was rape, pure and simple. There is no cause to be using “allegedly” or “apparently.” He admitted all of the relevant facts under oath when he plead guilty. He’s a rapist who has spent the past 30 years on the lam. That Jacques Chirac and folks like Whoopi Goldberg want to make excuses for the rapist reveals something very scary about THEM, not America.
September 29, 2009, 10:49 amDavid Nieporent says:
I would suggest that 8 years for raping a child is the “unusual” idea. And I’d say that getting one free child rape (1 year because it was a first offense?!) is even more unusual.
September 29, 2009, 10:49 amSteve says:
I am really baffled at how an offense like this got plea-bargained down to statutory rape in the first place. I’m also boggled at the notion that the underlying conduct is only worth a year or so in the Netherlands. I mean, I accept that we take a different view from most other countries concerning long prison sentences, but still, 13 is 13! Wow.
September 29, 2009, 10:54 amMartinned says:
I’m not sure whether that would be impossible due to any explicit agreement as to priority (“first come, first served” or “highest potential punishment wins”), but I’d imagine that the Swiss wouldn’t go for such a thing, and if they did, they’d be royally PO’ed. The French need much more from Switzerland than vice versa, so they’d never risk upsetting them like that.
September 29, 2009, 10:56 amShelbyC says:
It’s hard to imagine that fleeing wouldn’t void the deal. And of course, he should be punished for fleeing.
September 29, 2009, 11:00 amSteve P says:
Let me get this straight… you have no sympathy for this person because of a libel case in England, and not because of non-consentual sex with a 13-year-old? Interesting.
September 29, 2009, 11:01 amMartinned says:
The 8 years is for standard statutory rape with a person between 12 and 16 years of age. A “normal” rape of an adult, i.e. one that involves threat of violence, carries a maximum penalty of 12 years. However, the language on “threat of violence” does not seem to include the use of intoxicants. Having sex with someone who is unconscious, retarded, or for some other reason unable to give consent also carries 8 years. So the Polanski case arrives at the 8 year max through two different ways.
(Just to be complete: if the victim is younger than 12 years, the maximum is back on 12 years.)
September 29, 2009, 11:02 amcaliforniamom says:
The original sentence of 42 days in a mental hospital followed by probation was preposterous. I don’t blame the original judge for smelling a rat and saying that he might not go along with the plea deal. And time should be added for being a fugitive for 30 years. A few years ago, the Max Factor heir, Andrew Luster, used drugs to rape women. He was found guilty but then fled. When he was captured he got a very long sentence. We can’t have double standards in our justice system just because someone is a filmmaker or has had tragedy in his life. Most everyone has had some sort of tragedy. It’s no excuse. I suspect that the sympathy he gets from so many of the bigwigs in Hollywood is based on ‘there but for the grace of God go I’. The casting couch, the drugs, the booze…the payoff to the victim.
September 29, 2009, 11:03 ammischief says:
If the purpose of imprisoning criminals is to reform them, we should keep them locked up for as long as it takes. You could get an effective life sentence for shop-lifting.
Isolation is worse: that would require a life sentence for all crime.
The only protection from such abuses would be to protest that the punishment is monstrously disproportionate to the crime.
September 29, 2009, 11:03 amerp says:
Is it correct to assume that since he already pled guilty, there is no reason to retry the case or bring the victim/nymphet back into the picture.
He should be sentenced for the crime and for running out on his bail.
As for fairness, he lived a pretty nice life for the past 32 years instead of spending a good part of that time in jail.
September 29, 2009, 11:03 ambailey says:
It’s not that unusual for the more intelligent amongst us to excuse these little foibles when it is a true artist at work. Part of the Mumia mystique is his “eloquence” and Tookie wrote beautiful children’s books. We are supposed to follow the more enlightened penal codes of Europe, aren’t we? Isn’t that an argument often made when discussing our death penalty jurisprudence.
September 29, 2009, 11:07 amBored Lawyer says:
In this case, the deterrence is primarily to others who might do the same thing. Judging by the reaction, it appears that, at least in Hollywood circles, such deterrence is necessary. No producer, director or actor should think that they can drug and rape a 13-year old girl and escape prosecution through their artistic talent, money and/or connections abroad.
You may have a point, but my understanding is that the “promise” was only what the prosecution would ask for — the Judge was free to reject the proposed sentence, as he indeed did. I haven’t practiced criminal law in a while, but when I did that was typical for a plea bargain.
All of that could have been sorted out had Polanski not fled. If there was indeed a “deal” he would have a strong basis to either enforce the deal or withdraw his plea. Instead he has been a fugitive from justice for 30 years. It is hardly unfair to now require him to face the music.
September 29, 2009, 11:08 amMark N. says:
A complicating factor is that he claims he admitted those facts under oath as part of a plea bargain agreement that the State subsequently violated.
September 29, 2009, 11:09 amHans Bader says:
My wife is from France and she agrees with you, Professor Volokh.
September 29, 2009, 11:11 amShelbyC says:
Then maybe he should have done his raping in Holland, eh?
Although I doubt he’ll get more than a year in the US.
September 29, 2009, 11:11 amNickM says:
Judges are allowed to reject plea-bargained sentences. The defendant has the right, in that situation, to withdraw the guilty plea and go to trial. It happens with some frequency, and has even been a subject of at least one Law & Order or Law & Order: SVU episode.
It’s really not surprising that in this case, with a plea bargain that looked like a giveaway to a celebrity, a judge had a real problem accepting a “timne served” slap on the wrist for raping and sodomizing a child.
Nick
September 29, 2009, 11:13 amAndy Freeman says:
Let’s look at Polanski in 1977 from a 13 year old girl’s point of view.
At that time, Polanski was a hot relatively young (at the time) Hollywood director. In Sharon Tate’s murder, he even had an incredibly sympathetic story. I suspect that “parents were sent to a concentration camp, where mother died” and “survived Nazis” also help.
The way to improve his odds is a unicorn. (Being a vampire would trump the unicorn today.)
Given Polanski’s circumstance, he had to be pretty pathetic if he needed to drug a 13 year old girl to get laid.
September 29, 2009, 11:13 amMartinned says:
Well, the problem here is that Switzerland, like all ECHR member states, won’t extradite if Polanski’s rights under the Convention will be violated in the US. And that includes his art. 3 right “[Not to] be subjected to torture or to inhuman or degrading treatment or punishment.”
September 29, 2009, 11:16 amMartinned says:
Better weed, too…
September 29, 2009, 11:18 amyankee says:
It doesn’t strike me as particularly surprising that the French government is opposing the extradition of a famous and wealthy French citizen on a 31 year-old warrant. Nor is it surprising that Hollywood is opposing the punishment of one of their own; celebrities are egomaniacal and thus want to be above the law.
Nonetheless, raping a 13 year-old and then fleeing justice after being convicted (albeit of a lesser offense) should be punished no matter how wealthy and talented the rapist.
September 29, 2009, 11:25 amyankee says:
He was rich and famous! How much more explanation do you need?
September 29, 2009, 11:28 amgeokstr says:
Some here have been saying that the victim wants the charges dismissed. Gosh, what a coincidence that the victim has already sued him and received an “undisclosed” settlement, sort of like the “victim” of M. Jackson refusing to testify after his parents got a reported 8 figure sum from him.
September 29, 2009, 11:32 amDavid Nieporent says:
My understanding, mostly through secondhand sources, is that it’s explained in large part by the fact that there were no rape shield laws back then. Polanski made it clear that he planned to put the victim on trial, to discuss her sexual history (she had apparently previously had sex with her 14-year old boyfriend), and the like, and as a 13-year old, she just didn’t want any part of the likely media circus that would result. So the prosecution gave him a good deal to protect her.
September 29, 2009, 11:33 amLaura(southernxyl) says:
And what about a situation where the person is between 12 and 16, so it’s standard statutory rape there; but rather than “threat of violence” the perpetrator is simply bigger and stronger than the victim and persists in spite of her telling him “no”? Does he have to, like, pull a knife, for it to be violent? Does she have to resist and get injuries in addition to the rape for it to be considered violent?
September 29, 2009, 11:34 amgeokstr says:
Given that Switzerland not long ago passed legislation asserting that broccoli has rights too, I wouldn’t be surprised if he doesn’t get extradited.
September 29, 2009, 11:35 amarthur says:
Has any U.S. based “Hollywood liberal” (whether liberal or not) spoken up agaisnt extradition case since the arrest? Several of the coments calim there are Hollywood supporters, without names or links, and I haven’t seen any evidence of it.
September 29, 2009, 11:36 amtroll_dc2 says:
I don’t know how you reached your verdict. I have no sympathy for a person who brought an improper lawsuit (in a forum that never should have entertained it). I never said anything about the child rape. So now I will. I think that the trial judge was correct to reject the plea bargain (although I am not sure what sentence would have been appropriate). I think that there should be an extra punishment for fleeing to Europe, as that is a separate crime. I would be pleased to have him put away for life, and I wish there were some way for Conde Nast or its insurers to get their money back.
September 29, 2009, 11:40 amptt says:
It’s pretty clear that dispassionate justice is dead, at least when it comes to a handful of notorious cases.
September 29, 2009, 11:40 amMartinned says:
I’ve tried to be a little careful in my statement so far, because I am not a criminal lawyer. All I can do is look at the law. (And, if I’m really curious, the case law.) The definition of simple rape is as follows: “He who, through violence or other factual circumstance, or threat of violence or other factual circumstance, forces someone to …” (The language is exactly that clunky in the original.) Also because there is a separate article for victims who are unconscious or intoxicated, I read this as requiring some component of violence. If the defendant is a really big guy and the victim did not say no, the evidence will be tricky, but it will presumably turn on how afraid the victim was and to what extent the defendant realised and/or should have realised she was afraid. Injuries would certainly help to make that case.
For statutory rape, i.e. victims between 12 and 16, none of this matters. Consent is not a defence there. However, using violence or threatening the use of violence puts the rapist within the reach of the normal rape article, see above.
September 29, 2009, 11:47 amMartinned says:
I don’t know about that story. I do know that no ECHR country has ever refused to extradite a person to the US solely on the grounds that the maximum penalty was too severe. (The death penalty is a different story. That’s article 2, right to life.) If, in addition to a disproportionate sentence, there is also the likelihood of violations of mr. Polanski’s art. 6 right to a fair trial, he might have an argument.
September 29, 2009, 11:49 amzippypinhead says:
Frankly, I’m glad to see Polanski tripped up by an international warrant, complete with all the publicity — it’s a fantastic general deterrent for that subset of wealthy criminal who might consider the option of fleeing internationally rather than facing charges. Such crooks’ lawyers may warn them about Interpol Red Notices and the indefinite availability of extradition if they flee, but seeing one of their own get caught this way is a MUCH more powerful lesson. And it’s good to see that once in a while, justice delayed is not necessarily justice denied.
Besides, if the French keep up their absurd protests in support of this convicted pedophile, I may have to start ordering “Freedom Fries” at McDonald’s again… is drugging and raping a 13-year child old really not shameful to the French?
September 29, 2009, 11:50 ambailey says:
Ask and ye shall receive. The Guardian has a nice article about a petition signed by some of the greats, including Woody Allen, in support of Polanski. Nice stuff from Deborah Winger decrying the use of a sacred event like a film festival to bring a child rapist to justice.
September 29, 2009, 11:51 amMartinned says:
Agreed.
Maybe interesting to mention: Since many European countries, including my own, don’t have the possibility of release on bail, the only alternatives are release “on his own recognizance” and detention until trial. As a result, the latter is much more common here than in the US. (You will note that the aforementioned ECHR, art. 5, right to liberty, does not say anything about bail. Instead, art. 5(1)(c) gives as one of the exceptions to the right to liberty “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”.
September 29, 2009, 11:54 amyankee says:
How “dispassionate” is one supposed to be about someone who drugs and rapes a 13 year-old child and then flees from justice?
September 29, 2009, 11:58 amMark N. says:
There’s a reasonable number of Hollywood folks mentioned in this article. They seem to be more “Hollywood weird filmmakers who like Polanski’s films” rather than “Hollywood liberals”, though; folks like David Lynch and Martin Scorsese.
September 29, 2009, 12:02 pmMartinned says:
Just as dispassionate as in any other criminal trial.
September 29, 2009, 12:05 pmPatHMV says:
arthur, Whoopi Golderg spent some time yesterday explaining how this wasn’t really “rape-rape.” Having heard many feminists howl at all men that just about anything short of a direct request to “please insert your penis into my vagina” is rape, I would hope that she will be quickly cast under the bus and decried for equivocating and finding distinctions between “real” rapes and the lesser kind.
Me, I think that giving wine and a Quaalude to a 13 year old, then penetrating her anus while she says “no, no, please stop,” is REAL rape, “rape-rape.” This is not at all similar to the 19 year old having consensual sex with his 16 year old girlfriend. Read the girl’s grand jury testimony, if you have the stomach for it.
Oh, and about this whole “the judge was going to give him 100 years” crap, read this post at Patterico’s. The judge was going to make him spend the entire 90 days he agreed to spend in jail while being evaluated, not let him out after 42 days. The defense didn’t think he should have to spend any more time in jail, and appears to have some arguments as to why the judge was improperly using “diagnostic” imprisonment as a punitive tool, but the bottom line reading through the defense’s own motion (cited in Patterico’s post) is that the judge was planning to give Polanski all of another 48 days in jail.
He’s a rapist and an escaped convict. If the victim doesn’t want him to serve any more time on the rape charge, ok, fine by me. But he needs to do some time in jail for fleeing the jurisdiction and living on the lam for the past 30 years. He is not above the law. If anybody in Hollywood wants to feel badly for them, I urge them to go make this much noise over some poor, broke nobody who has actually suffered real imprisonment and loss of jobs due to an overzealous prosecutor somewhere, not defend this scum bag.
September 29, 2009, 12:07 pmMark B. says:
Damn, if that well know upholder of the public morals Woody Allen signs a petition, the only question that comes to mind is “How can I add my name to the list?”
September 29, 2009, 12:10 pmDangerMouse says:
Here’s Whoopi Goldberg claiming that what he did isn’t “rape-rape,” whatever that means.
September 29, 2009, 12:26 pmAJK says:
How is “on his own recognizance” different from bail?
September 29, 2009, 12:26 pmPintler says:
I was under the impression was that the purpose behind statues of limitations was to prevent the innocent defendant, who had no idea he was a suspect, from being asked to prove where he was on the night of the 14th twenty years after the fact.
When the facts aren’t in dispute because the defendant pleaded guilty or was convicted, what is the rationale for forgiving punishment?
Is there a sliding scale of severity and time to forgiveness? 30 years for rape, 20 for robbery, 10 for burglary, etc?
(and a year for parking tickets :-))
September 29, 2009, 12:34 pmMartinned says:
It doesn’t involve any money?
September 29, 2009, 12:35 pmdcp says:
Lots of them have. They even signed a petition demanding his release. Over 100 have signed and others continue to do so:
In fact, I haven’t heard of anyone in Hollywood who supports him being held accountable for what he did – either the forcible rape of a 7th grader he drugged or the whole 30 year fugitive thing. Nor do I expect any of them to – except maybe a few old, established realists like Robert Duvall – because they know they would be blackballed.
It’s just mindnumbing how out of touch with reality Hollywood is. In this instance they may be biting off more than they could chew. Jesus, I love Michael Mann, but I will never pay to see one of his movies again.
September 29, 2009, 12:35 pmMark Buehner says:
Doesn’t the 30 years has elapsed argument ring of the killing your parents and asking for leniency as an orphan defense? This would have been settled long ago had the man not fled. If anything justice demands we DO track him down as an example against fleeing.
September 29, 2009, 12:40 pmMartinned says:
That’s one reason. Another one includes, for example, to encourage the state to hurry up.
Clearly limitations periods are not directly at issue here, since the state did prosecute him on time. To the extent that the prosecution wasn’t finished, this is Polanski’s own fault. Still, the question is legitimate how hard the US have been trying to catch him during the last 31 years. One might also wonder about any possible testimony for the purposes of sentencing.
September 29, 2009, 12:44 pmMartinned says:
Well, that depends on whether the US have really been trying to catch him all this time. That’s a question that’s now being asked.
September 29, 2009, 12:46 pmbailey says:
Dispassionate as a synonym for unbiased is fine. A couple of problems do exist with the usage above, however: First, this is not a trial as he entered a guilty plea and the presumption of innocence is gone. Second, a sentencing court is allowed to weigh a number of factors before sentencing, including the severity of the conduct. They are not required to be “dispassionate” in passing sentence on crimes that would be regarded as heinous.
September 29, 2009, 12:50 pmPintler says:
Why does the vigor, or lack thereof, of the pursuit matter? It’s not like the police set out a huge dragnet if you bounce a check or fail to pay a traffic ticket; they won’t come knocking. They put out the warrant, and if they stumble on you someday you get to deal with it then.
For sentencing testimony, Mr. Polanski could have arranged to have that any time he liked. I don’t think delaying that testimony forever upon unilateral request of the defendant makes for a workable system.
September 29, 2009, 1:03 pmMartinned says:
That logic applies equaly to all criminals: they could have arranged to have testimony any time. So why have a statute of limitations at all?
Just to be clear: Like I said before, this is not directly a limitations issue. Still, the equity of continuing the prosecution now can be judged with reference to many of the same values that also underlie the existence of a statute of limitations.
September 29, 2009, 1:31 pmPatHMV says:
It’s not at all legitimate to wonder about how hard the US (to be more legally accurate, the State of California, acting through the District Attorney of Los Angeles County) has been trying to catch him. He fled the jurisdiction. He had an ongoing legal responsibility to return. He could have returned at any time. He has, every single day of his life for the past 30 years, chosen to continue to flee. That’s 100% on him, not anybody else. He has absolutely no right to complain about the passage of time in this case.
September 29, 2009, 1:37 pmtroll_dc2 says:
When you absent yourself from a jurisdiction so that the jurisdiction cannot prosecute, sentence, or otherwise process you, I do not understand why the jurisdiction is required to justify its seeming delay in reeling you back in. You created the situation, not the jurisdiction. To put the burden on the jurisdiction is to approve bootstrapping. After all, any delay could have been ended by your returning to the jurisdiction, which you left unlawfully.
Is there any case law on the subject?
September 29, 2009, 1:40 pmPatHMV says:
Oh, and the government has, in fact, been trying to arrest Polanski abroad long before now, as this article shows. That Polanski spends most of his time in a country which does not have an extradition treaty which covers this crime is not the fault of the U.S. or the state of California. Don’t like the delay? He should have turned himself in 30 years ago. There is no equity involved in allowing criminals to skirt justice just because they have the resources to flee abroad and stay there.
September 29, 2009, 1:43 pmPatHMV says:
This is not akin to a case where a criminal has escaped from prison, then leaves a quiet, unnoticed, crime-free life for 30 years, and then is caught when he goes on Medicare or something, where throwing him back in jail might not make much sense.
This is a man who told the law: “Screw you!” and used his money and status to run away and hide. Funny how many celebrities and Europeans are willing to let him gain some benefit from his wealth and status, benefits which are not available to the poor and unfamous. He’s been running for 30 years, he’s been ignoring the law for 30 years, he’s continued to live a prosperous and free life. Had he stayed in the United States, he would have done a small bit of time (too small, probably) 30 years ago and been done with it. He chose the coward’s way out instead, and he must now pay the appropriate penalty for doing so.
September 29, 2009, 1:47 pmMark Buehner says:
Because it is incumbent on the government to make an allegation in a timely fashion. In that case the accused CANNOT arrange to have their testimony at any time. More- this isn’t a question of testimony at all. Polanski fled sentencing. I’m not familiar with the ‘you didn’t seek hard enough’ defense. What’s the threshold, FBI most wanted dragnet? America’s Most Wanted? Door to door search across the planet?
That’s ridiculous. How hard the state department sought extradition has nothing to do with the court. The defendant fled and hid and could have returned on his own hook any time he chose. Again, the not looking for me hard enough defense is odd. This is a state court, what power did the court have to reach into France?
September 29, 2009, 1:53 pmMartinned says:
Yes, that goes for all criminals.
September 29, 2009, 1:57 pmMartinned says:
Not in Europe. Like I said, over here he would have been detained until trial.
September 29, 2009, 1:58 pmMartinned says:
I agree, though I also think it is important for the Swiss to make sure his rights will be safeguarded.
September 29, 2009, 1:59 pmHugh says:
I have not had a chance to read all the comments here, but allow me to quote from a story at the NY Times about the reaction to the Polanski arrest in France:
Some of the French elites may support Polanski, but the French people seem to be more humane.
September 29, 2009, 2:04 pm
troll_dc2 says:
I was asking about American law. Given our 50 states, after all, there must have been plenty of situations in which criminals and alleged criminals crossed state boundaries when they were not supposed to and eventually got caught. The statute of limitations is tolled while someone is outside the jurisdiction, but surely the issue must have been litigated somewhere, I would think.
September 29, 2009, 2:06 pmMartinned says:
Sure an ordinary defendant can arrange for testimony: he can turn himself in.
Whether it is equitable for the prosecutors to continue the prosecution at this time depends on whether they tried hard enough to get him. That is something for the Swiss court, the Swiss government and the California (?) court to decide. One of the reasons for having a statute of limitations is to punish prosecutor tardiness and/or negligence: you snooze, you lose. The power of the criminal justice system is the most severe power a democratic government possesses, and they should be forced to use it with as little arbitrariness as possible. Whether or not they go after a fugitive cannot be a matter of whether the mood strikes them.
Let’s say Polanski proves in Swiss court that the US government could have had him detained and extradited several times before, but didn’t. I think in that case the Americans should be estopped from saying they still want him.
P.S. For international law purposes, including extradition treaties, the political subdivisions and different branches of government all add up to one state.
September 29, 2009, 2:07 pmPintler says:
So the accused can effectively defend himself – the memories of his alibi witnesses will be fresh, he can find the timestamped receipt or surveillance video showing he was two states away at the time of the murder, etc. The innocent accused doesn’t know he should preserve that evidence prior to being charged.
Once he is charged, our hypothetical accused can’t go on the lam for decades and then plead ‘twenty years ago I could have presented exonerating evidence’. If he had such evidence then, he could have presented it then.
This case is even less sympathetic – Polanski agreed that he is guilty, but skipped town. Whether he walked away while out on bail or dug a tunnel under the prison wall, it’s the same fundamental action.
If I may ask, what is the European perspective on prosecutions for WWII war crimes? It seems that every year or two we find an eighty year old that some European country is accusing of participating in war crimes as an 18 year old, and we deport them to face the music. One can argue the relative merits – participating in the holocaust is worse even than rape, but then no one ordered Polanski to commit rape or face the firing squad. Why does Europe consider those extraditions for long ago crimes a good thing, and extraditing Mr. Polanski for much more recent crimes a bad thing?
September 29, 2009, 2:08 pmShelbyC says:
Probably true, but in fugitive cases those concerns are outweighted by the inequity of allowing the defendant to escape justice by going on the lam for 30 years.
September 29, 2009, 2:12 pmMark Buehner says:
How do you turn yourself in without an allegation or arrest warrant? Unless you want to confess I suppose.
First of all, he is a fugitive from the court, so I believe the marshal service would have jurisdiction. Secondly, what power does the state marshal or the state district attorney have to snatch someone out of France? Finally, your argument taken to its logical conclusion seems to be that the entire apparatus of United States government power is relevant to this case, in which case I suppose we should have gone to war to retrieve him? Anything less and you could argue we didn’t want him back bad enough.
Which international law? Did our failure to take this to the Security Council demonstrate our lack of desire to apprehend?
September 29, 2009, 2:13 pmPatHMV says:
martinned, you say the Swiss government must ensure that Polanski’s rights are safe-guarded. From your context, it sounds like you mean more than simply to assure that the procedures for extradition are followed. If so, what exactly are the rights they are to protect? Is it your view that every nation, when extraditing a criminal to another jurisdiction, should apply their own human rights laws, and ensure that the nation to which the criminal (or accused criminal, in cases where the defendant has absconded before trial) is being returned will apply the Swiss (or French, or whatever) human rights laws? Or is it the role of the Swiss government to evaluate whether it thinks the prosecutors seeking his return are doing so for proper or improper motives? Or is such an evaluation limited to major and significant issues (not present here), such as a refusal to extradite when the death penalty might be imposed against the criminal? Must Switzerland do this with all extraditions, including extraditions to France or any other European Union nation? Is there some standard set forth in the various extradition treaties with Switzerland?
In fact, here is the extradition treaty between the United States and Switzerland. It specifically covers the death penalty, to allow a refusal to extradite in such cases. The only place where it talks about generally assuring that the rights of the accused will be protected is in Article 7, when extradition is being sought for someone who was convicted in absentia. Polankski fled after conviction, so that article is not applicable. Article 9.4 provides for the documents which must be submitted to extradite a criminal already convicted. Nothing there requires the U.S. to submit any kinds of proofs or justifications that we will protect Polanski’s rights. In fact, that section clearly contemplates that such a convict may or may not have already been sentenced, and only requires that if they have been sentenced, the U.S. must provide documents of what the sentence is. There’s nothing which provides for the U.S. to submit evidence of what sentence might be given (other than a requirement to provide the text of the statute), or to certify that the sentence won’t be excessive.
September 29, 2009, 2:42 pmVisitor Again says:
I have no brief for Polanski. I don’t bother to put forward my views on the leniency of the plea bargain. I do know the victim did not wish to take part in a trial, and that was long before she sued and received a civil settlement from Polanski, by then already a fugitive.
There’s been no mention of the fact that Judge Rittenband was going to back out of the plea agreement because he had ex parte meetings with a deputy district attorney who urged him to impose a heavier sentence on Polanski, who showed him photos of Polanski at a gathering with his arms around a couple of starlets who were said to be under-age, and who told Rittenband the plea bargain would subject him to criticism in the media and harm Rittenband’s own reputation.
Even back in the Seventies, all of us in the legal profession knew that ex parte communications were unethical and undermined fairness in the judicial process. It is indeed scary when defendants do not know what they are up against because “proceedings” are conducted behind closed doors with only the other side represented. It’s so scary that some defendants might even abscond rather than trust their future to a judge willing to violate basic ethical rules and principles of fairness so fundamental that they are enshrined in due process of law.
I appeared before Judge Rittenband quite a few times in the late Sixties and the Seventies. Yes he’s deceased and unable to respond, but facts are facts. Death, like the passage of time in Polanski’s case, does not exempt one from criticism, particularly if one’s conduct is still in issue.
Judge Rittenband had an intense dislike for publicity that did not reflect well on him and he let that affect his rulings. In one case in the mid-Seventies, Judge Rittenband granted bail on appeal to the convicted defendant, then abruptly and angrily revoked it because he watched a newscast on television and found out the defendant had criticized the fairness of the trial at a defense rally. It might have been assumed that Judge Rittenband, a Harvard Law School graduate, had at least a nodding acquaintanceship with the first amendment, but he was unmoved by its invocation. Only after lengthy habeas corpus papers were filed with the Court of Appeal and served on him did he relent and reinstate bail on his own motion–before the appellate court had a chance to admonish him. In the meantime, the defendant had served a couple of months in prison.
September 29, 2009, 2:44 pmMartinned says:
There’s no limitation period for war crimes. (Eg. art. 29 Rome Statute.) The idea being, obviously, that these are the gravest of crimes, that must be punished no matter how much time has passed. Limitation periods always reflect a balancing between competing interests, which is why they tend to be longer for crimes that are more serious.
September 29, 2009, 2:50 pmMartinned says:
Extradition treaty = international law, as I already wrote quite clearly in the comment you responded to.
September 29, 2009, 2:52 pmMark Buehner says:
There was no trial, there was a guilty plea, and you can see the victims testimony on smoking gun. Polanski skipped out on the sentencing, which people continue to ignore.
Secondly, indeed it seems that the prosecutors cut the deal in the first place largely to shield the victim from a painful trial. So what? Take THAT argument to its logical conclusion and we couldn’t put a single child molester in prison that relied on the victims testimony. It’s one thing to protect the victim, but locking up a criminal is in the interest of the state, not just the victim. Shielding society from a person like Polanski is important. Allowing him to flee and then use his absence as an excuse to set aside the law is nonsense. If this man wasn’t famous we wounldn’t be having this conversation, nobody in their right mind would defend this.
September 29, 2009, 3:06 pmMartinned says:
@PatHMV: That is the case law of the European Court for Human Rights. Last year’s Soldatenko v Ukraine, for example:
[Remember: Art. 3 is the right not to be subjected to cruel or inhuman treatment or punishment.]
(That case concerned a possible extradition to Turkmenistan, where torture and inhumane treatment was feared. The ECtHR forbade extradition.)
The question isn’t whether the Swiss courts must safeguard the defendant’s rights in taking their decision on extradition, but what the threshold level of concern should be, where extradition might be refused. As you can see above, the ECtHR talks about “substantial grounds”, whatever that means.
An older case, which concerned an intended extradition from the UK to the US on capital murder charges, is Soering v UK (1989). That was not a death penalty issue directly, but rather an art. 3 issue. (At the time, the ECHR did not yet ban the death penalty.) Again the Court emphasises the UK’s own responsibility:
The Court concluded that, even though the ECHR permitted the death penalty at the time, “having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3.” (par. 111), which is why the forbade this person’s extradition to the US.
September 29, 2009, 3:14 pmSarcastro says:
I would also like to paint all liberals with supporting this rapist, and then use this to draw conclusions about how all liberals are pedophiles. In fact, I’ll bet public schools are just pedophile havens!
September 29, 2009, 3:20 pmbailey says:
Well, Sarcastro, the left end of the spectrum has been pretty strong and vocal in its support of the guy. The arts have been well nigh unanimous at this point and I can’t imagine they could be accused of being on the right end of the spectrum. The public pronouncements of European governments have also been supportive of the rapist (you know, the enlightened governements and justice systems we are supposed to model ourselves after in areas like the death penalty and other forms of punishment).
September 29, 2009, 3:27 pmGaryC says:
Note that Polanski’s affair with Nastassja Kinski began when she was 15, just two years after this rape. So by Dutch law this was also statutory rape.
Polanski has also mentioned that he had a serious of encounters with school girls at a private school near his chalet in Gstaad, without specifying the age of the girls. Those may have been legal, but we can’t tell.
September 29, 2009, 3:34 pmArthurKirkland says:
The misconduct involving the judge and prosecutor was serious; the dead should be spit upon and the living punished.
That misconduct should not be rewarded; instead, the deterrence issue inclines a reduction in the defendant’s sentence, with a warning to the prosecutor’s office than repeated offenses will precipitate severe consequences.
With respect to this defendant, I would cut two weeks off the maximum sentence permitted by law.
September 29, 2009, 4:07 pmRPT says:
I have not seen any “lefty” defend the crimes to which Polanski plead guilty. There is no defense. Stop projecting unless you advocate for charging Mark Foley. Fleeing after admitting guilt in order to avoid punishment is the problem. He should have appeared at the sentencing and, if Rittenband went back on the deal, pursued the appellate remedies. If Rittenband was the wrong judge before whom to make the plea, that’s the fault of his lawyer(s) at the time for not moving the case.
September 29, 2009, 4:11 pmSarcastro says:
Yep, I totally heard Air America’s “Defend the rapist” special. And Barney Frank, well, he’s staying quiet but I know what he’s thinking!
And the artists! I can barely work but for their marches and screaming to let this guy free.
Plus, it is a well known fact that all American liberals are secretly not only pedophiles but also European (the way you can tell is that they don’t hate Europe as metosexual effeminate weenies – that mean they want to be exactly like Europe in every respect) – so I’m not surprised that Europeans count as liberals.
September 29, 2009, 4:21 pmLaura(southernxyl) says:
As others have pointed out, Whoopi Goldberg can’t seem to drum up any outrage. IIRC her politics tend to the left-of-center variety.
article
Did Mark Foley break the law? Charge his butt. If he didn’t break the law, I don’t know how you could charge him or what you could charge him with.
September 29, 2009, 4:38 pmyankee says:
And hey, the left consists exclusively of artists and European governments. All of whom are on the left, apparently, including Polish foreign minister Sikorski. That will sure come as a surprise to the Poles!
It will probably also come to a surprise to the Swiss when they learn that Switzerland isn’t in Europe.
September 29, 2009, 6:28 pmPintler says:
Sure, but just to make sure I understand – in Europe, if I am convicted of or plead guilty to a crime, the rest of my sentence will be dismissed if I jump bail or escape from confinement and evade recapture for a long enough period? The common view is that failure to dismiss the sentence, even for very serious crimes, is a violation of the criminal’s human rights?
September 29, 2009, 6:45 pmAJK says:
In English usage (as far as I know), recognizance means a bond pledged to a court. What does it mean in the Netherlands?
September 29, 2009, 6:55 pmMartinned says:
Google is a wonderful thing…
September 29, 2009, 7:18 pmMartinned says:
Like I said, given that individuals who are accused of serious felonies, such as mr. Polanski, are usually detained pending trial, this doesn’t come up much.
Secondly, there are some subtle but important differences between the common law concept of a statute of limitations and the civil law concept of, for lack of a better translation, limitation period. (The wiki-explanation is kinda short, but better than nothing.)
Thirldy, note that I’ve been talking mostly about whether it would by “equitable” to continue the prosecution, and whether the US government might be estopped (= equitable doctrine) from arguing that they still want him. Continuing the prosecution as such doesn’t seem to be a particular human rights issue, as far as I can see.
Fourthly: since I already checked what the penal code says about rape, I might as well also check what it says about limitations. It turns out the limitation period for statutory rape (maximum penalty between 3 and 10 years in prison) is 12 years. For ordinary rape (maximum penalty more than 10 years), the limitation period is 20 years. Under art. 76 penal code, there is equally a limitation period for carrying out the punishment, but it is 1/3 longer than the limitation period for prosecution. So if Polanski had been prosecuted in the Netherlands, he would have been convicted in absentia, but they would not have been able to carry out the punishment if he’d managed to stay away for 16 years. (Or 26 1/3 if they had managed to make a case for ordinary rape instead of the statutory or intoxicated kind.)
September 29, 2009, 7:34 pmMartinned says:
@AJK: In other words, you should watch more Law & Order, since apparently your understanding of the English concept was wrong. (Referring to ROR was my attempt to translate the civil law concept into English. Obviously, ROR doesn’t exist as a separate concept here, they’d simply call it “release pending trial”.)
September 29, 2009, 7:36 pmPerseus says:
It’s not that unusual for the more intelligent amongst us to excuse these little foibles when it is a true artist at work.
Even if his art should permit him to live beyond good and evil to some extent, he is unlikely to produce much more good art since he is old now. Therefore now seems a good time for a spectacular execution.
September 29, 2009, 9:16 pmMark Field says:
I’m out of town and unfortunately can’t read this whole thread or make comments on all of them. That’s a shame, since this is one of those rare instances in which I have personal knowledge of the case.
What I can say is this: the victim’s attitude is unaffected by the settlement. She has, I think for the better, been able to put this behind her in her life. Reinstating the charges now will likely make it harder on her.
This is not the only consideration, of course. There is an important public policy concern as well, something Mr. Mitterand seems to ignore (or perhaps he is ignorant of the facts). The crime was very serious indeed and other victims deserve protection too.
One final point. The behavior of the trial judge was absolutely outrageous and inexcusable. Polanski’s original decision to flee was understandable from his perspective under the circumstances, even if not under public policy. Those interested in some of the issues might want to do a westlaw search for the case of Doe v. Rpolanski (misspelling intentional).
September 29, 2009, 11:21 pmMark Field says:
I should have added that the case is in the CA Court of Appeal.
September 29, 2009, 11:23 pmMaureen001 says:
It has bothered me greatly how little people seem to remember or know of the circumstances surrounding the charges against Roman Polanski back then. I’ve seen no mention of the fact that little miss 13 year old looked and behaved solidly like a 25 year old, that her own mother left her alone with Mr. Polanski after intimating to him that the young lady found him very attractive *wink wink*, that the mother contacted the police after coming to understand that a one night stand, as it were, was not sufficient grounds for her daughter, and by extension, her, to become an instant millionaire. It was a trap, one that was recognized by everyone at the time, but the law is the law. So when it was given out that a plea bargain had been reached, there was a sort of sigh of relief by the public, and massive dismay when Mr. Polanski high-tailed it out of the country. I can’t say I blame him for leaving. American “justice” at this point stank to high heaven. And this, on the heels of an America where his wife and unborn child were murdered under the most heinous circumstances. I can see why he left. There was nothing for him here.
The real crime now is not what a precocious young lady with a pimp for a mother suffered at the hands of a man who thought she was of consenting age; she’s long been compensated for that, just as mom wanted. No, Mr. Polanski’s crime was fleeing the American criminal justice system, flawed as it certainly was, and getting away with it for so long. That is what he must atone for now.
And BTW, his use of Quaalude (as with other “downers”) was so very, very commonly practiced at that time. In fact, Quaalude had the distinction of being a drug with no clear medicinal purpose but was in fact used to party. He was never accused of slipping the drug to her, but of giving her a quarter tab. She, of course, had to have taken it on her own. If she had been the 25 years of age she looked and was assumed to be, there would have been no issue about the Quaalude.
September 30, 2009, 12:12 amDavid Nieporent says:
That’s okay; you can just fabricate some defamatory claims, in the hopes that semi-anonymity of the internet will protect you.
September 30, 2009, 12:32 amVisitor Again says:
While I have no position on how Polanski should have been sentenced as an original matter, I do have a couple of questions for those of you who know something about how the Swiss courts proceed in extradition matters.
Is there any chance that in rendering their decision on the extradition request, the Swiss courts would take into account Judge Rittenband’s unethical and unconstitutional ex parte contacts with a deputy district attorney and his subsequent withdrawal of his approval of the plea agreement?
It was, of course, Judge Rittenband’s withdrawal of his approval of the plea agreement that led to Polanski’s decision to flee. And it later surfaced that that withdrawal was the result of the unlawful ex parte contacts.
The conduct of the State in this case, through both its judicial and prosecutorial arms, was deplorable. It strikes me that that is something the Swiss courts may want to look at before throwing Polanski back into the maw of a legal system that treated him so unfairly. Is there any legal basis for them to do so?
Some readers may respond that the plea agreement itself was ridiculously lenient, given what Polanski did. That, in my view, is not relevant because there was, nonetheless, an agreement, and, furthermore, one that was reached for legitimate reason, to protect the victim, a young girl, from the ordeal of a trial.
I also wonder whether the Swiss courts might be concerned that once extradited Polanski will be charged with and punished for fleeing, given that it was the misconduct of the State (the ex parte contacts between the judge and the prosecutor’s office and the judge’s consequent withdrawal from the plea agreement) that led him to flee. Is there any legal basis for considering this an issue in the extradition effort?
September 30, 2009, 1:15 amRicardo says:
Martinned:
That’s interesting. Since the U.S. grants criminal defendants more rights in terms of remaining free while awaiting trial or sentencing, Polanski unquestionably abused those rights while skipping bail right before his sentencing hearing. That adds extra irony to the statement about “scary” American justice.
Also, as I understand it statute of limitations in the U.S. only applies to the maximum amount of time the state is allowed to wait before bringing criminal charges. Once a suspect is arrested, speedy trial rights kick in. If the suspect flees the jurisdiction after being charged, I’m not sure he has any right to invoke either the statute of limitations or any due process rights to keep from being punished.
Occasionally, there is a story about some petty criminal who escaped from prison 30 or 40 years ago and then is arrested and returned to prison to serve out the remaining sentence. I’ll feel sorry for those guys — who don’t have Hollywood supporters or European officials publicizing their cases — before I feel sorry for Polanski.
I say try him in the U.S. for fleeing justice, add on an extra year or two for the rape and then be done with the whole sordid mess.
September 30, 2009, 3:10 amblargh says:
Wow, that was pretty disgusting. Even if “little miss 13 year old” were 25, it would still have been rape… Maureen do you also think women who wear short skirts are “asking for it”?
September 30, 2009, 4:29 amLaura(southernxyl) says:
Martinned, in your discussion of statute of limitations, you’re assuming that Polanski would have been convicted only of statutory rape. Having read the victim’s grand jury testimony, I hope that would not have been a given.
Also, is there a statute of limitations on fleeing before sentencing? I understand that you say he would not have been out on bail, but has no one in Europe busted out of jail ever?
September 30, 2009, 5:13 amLaura(southernxyl) says:
Also:
You’ve seen no mention b/c these things aren’t asserted by anyone but you, and b/c even if true they are irrelevant. Polanski knew the girl was 13, end of story.
,
Everyone???
Yes, it is.
If the public was relieved, it probably was because Polanski wasn’t getting off scott-free, and because the girl would not have to be put through the wringer as his lawyers were prepared to do.
…I think the whole “looking 25″ thing is unbelievable nonsense anyway. What the heck does that matter? My 22-year-old daughter has always looked much younger than she is. My husband and I took her to the Macaroni Grill for dinner last weekend; she was dressed like a regular person but the hostess initially offered her the kids’ menu. By your logic, even with ID they shouldn’t have let her have a glass of wine.
September 30, 2009, 5:32 amCash says:
I bet that Polanski will not be extradited. Switzerland will cite as reason its doubts whether he can receive a fair trial in California, given the DA/judge’s earlier misconduct and the present lynch mob atmosphere surrounding the case.
The Swiss will regard Polanski’s chances in a Los Angeles court to be no better than those of a Soviet dissident in a Moscow court. No way will they send him back.
Not even if LA County promises to honor the original deal in which he served 45 days (or time served or whatever his slap-on-the-wrist sentence was) and will seek only to try him for fleeing to France.
By Christmas, Polanski will be living in his ski chalet in Gstaad, pending final resolution. By spring, he’ll be back in Paris.
September 30, 2009, 5:41 amMartinned says:
As you can see from the caselaw I quoted above, the inquiry is strictly forward looking: Are there “substantial grounds” that his rights will be violated. So to your first question: No.
As to your second question, I’d say that this is not the kind of inquiry the Swiss court would engage in. Fleeying the jurisdiction is unlawful, and while it may be understandable in this case, the US would still be within their rights to punish Polanski for it if they chose to. I don’t see how that would be a violation of his Convention rights.
September 30, 2009, 6:27 amMark Buehner says:
Shocking.
September 30, 2009, 6:28 amMartinned says:
That is my understanding of US Law as well.
Here, a second limitation period starts when the verdict has become unappealable. If a prisoner escapes from prison, the day of his escape again starts that period. (i.e. a new one) The purpose is to encourage the government to carry out the punishment swiftly, instead of making the convicted person wait in uncertainty as to when their incarceration shall begin. BTW, I’ve never heard of any case where this limitation period came up.
[A quick search in the most important Dutch court reporter shows that the most recent time it came up in court was in a Supreme Court ruling in 1986. Altogether I'm getting only a handful of hits, all of them to do with misunderstandings, extradition-messes, etc.]
September 30, 2009, 6:43 amMartinned says:
I think I focused mostly on the crime he pleaded guilty to, but occasionally also mentioned “ordinary” rape. If a person convicted of ordinary rape escapes prison, the government have 20 years + 20*(1/3) = 26 1/3 years to catch him again, from the moment of escape. (I.e. the normal limitation period for prosecution, plus one third.) People who stay away that long, usually don’t get caught at all. (Polanski is a bit of a strange situation anyway, given that he was living quite openly, famous as he is, all over Europe. I’m not sure why they weren’t able to get him extradited before.)
September 30, 2009, 6:46 amMartinned says:
That’s possible. But remember, Switzerland is a very Germanic law-and-order place. It’s a place where people still get fined for littering. They don’t generally give people a pass just for being famous.
September 30, 2009, 6:50 amMartinned says:
Actually, under Dutch law, there’s more to it, still. The maximum penalty (8 or 12 years, depending on whether he’s convicted of statutory or ordinary rape) may be much lower, but if there is a reason to believe this person will continue to be a threat to society, the defendant is put “At the Disposal of the State” following his prison term. Whether that would have been done here is unlikely, given what I know about the circumstances, but still it is worth remembering. Quoting the ministry website:
This is done with serious criminals who are not criminally insane to the point that the criminal justice system cannot touch them, but who are insane enough that they are an ongoing threat to society. Such TBS can last for decades, much longer than the original prison sentence. (With review every few years, at least.)
September 30, 2009, 6:57 amHans Bader says:
My French relatives, who are not conservatives, think he should go to jail. He was a “real” rapist, not just a “statutory” rapist. Anal and vaginal rape, etc., should not be ignored.
As a commenter above noted, citing a New York Times story, ordinary French people overwhelmingly think that as well, and have said so in blogs and comments to newspapers.
Of course, the French people’s wishes that criminals be properly punished is often ignored by the French elite.
My French-born wife supports the death penalty, and French public opinion clearly supported the death penalty in 1981, when it was abolished by the French elites.
September 30, 2009, 7:48 amCash says:
True.
But the Swiss easily turn a blind eye to the misdeeds of the rich and famous done in another country.
And let’s not forget, they’re funny about what law and order means. After all, this is the country whose largest bank, UBS, pursued as a major corporate strategy a policy of conspiring with Americans to cheat the IRS.
Given how the US pressured the Swiss to abandon their sacred bank secrecy laws and turn over the names of the tax cheats, I can see them looking for ways to stick it to us.
We get all high and mighty about our laws but we can’t seem to prosecute a slam-dunk child rape case without violating the defendant’s right to due process.
According to a story this morning by Marcia Clark (the brilliant prosecutor who got OJ Simpson convicted), the prosecutor who said on camera he conspired with the judge to back out of Polanski’s plea bargain now claims he lied because he wanted to give the movie-makers a sexier story. David Wells, in fact, did nothing wrong back in 1977.
To this Swiss, this has go to be further evidence of the cesspool that is LA County justice.
For each twist and turn in the story, an LA County DA has a new version of what he “really” did or didn’t do.
As I said, the guilty-as-hell Polanski will soon be free as a bird.
September 30, 2009, 8:26 amMartinned says:
I agree, except for one thing: Human rights, including the right not to be executed, are exactly the area where the public opinion should not necessarily get what it wants. The people may want a law against flagburning, or make church attendance mandatory, have the police kick the door down everywhere, etc., but that is irrelevant. We do not put rights up for a vote.
September 30, 2009, 8:28 amMartinned says:
Did you see that line in the Swiss extradition policy I linked to earlier? It’s awesome (but irrelevant to this thread).
September 30, 2009, 8:31 amAJK says:
I agree with the principle completely, just not the application here: I don’t think a convicted rapist has a human right to avoid punishment.
September 30, 2009, 8:38 amCash says:
Martinned,
NYT reported this morning that Reid Weingarten, Polanski’s new lawyer (and AG Holder’s best friend — talk about complicating DOJ’s moves in the matter) tion ), will argue that since the original plea bargain was for a 45-day sentence, Polanski cannot be sent back to Los Angeles because Swiss law requires a sentence of at least a year (as you cited) for him to be extradited.
September 30, 2009, 8:49 amMartinned says:
No, but he does have the right not to be executed.
September 30, 2009, 9:01 amMartinned says:
That sounds funky. The plea bargain wasn’t entered yet, right? So he hasn’t been sentenced to any penalty yet, there’s only a bargain. Surely that means that the normal rule still applies, which makes the extradition request depend on the maximum penalty that can be imposed? And if not that, surely the Swiss will let the US put in a second extradition request for the charge of fleeying justice?
September 30, 2009, 9:05 amSebastian says:
“The real crime now is not what a precocious young lady with a pimp for a mother suffered at the hands of a man who thought she was of consenting age”
Your whole comment is crazy, but this is factually untrue. According even to HIS version of the story, he knew the girl’s actual age was 13. Whether or not she looked 25 (I tend to think she looked very young actually) he had actual knowledge of her age.
September 30, 2009, 11:58 amPerseus says:
We do not put rights up for a vote.
Sure we do. In the U.S. it may require a super-majority for U.S. Constitutional rights or a simple majority in states such as California for state constitutional rights, but all civil rights are ultimately up for a vote.
September 30, 2009, 12:49 pmMaureen001 says:
Look, I’m not saying there was no crime done by Polanski and I’m sure not defending his sexual practices. What I’m saying is folks NOW are looking at a long-ago crime through today’s eyes and judging it without taking into consideration the events surrounding the crime. I lived in southern California when Polanski was arrested and charged for this crime. There were photos of the young lady in question. Initially the media got the story wrong (unbelievable, I know) and said she was 17. She still looked to be in her mid-20s. News anchors all over TV in LA asked each other if they would have suspected her age. Then when it was revealed that she was 13, people were really amazed. The photos disappeared as a result, but they had already been circulated. One reason some folks today are inclined to look with leniency on Mr. Polanski is because it was impossible to see a 13 year old in the photos circulated at the time; there was also residual sympathy because of what he had experienced over his wife’s and unborn baby’s deaths.
In view of the judge’s behavior, Polanski may be considered justified (not necessarily right) to have fled and to have remained away. He made restitution to his victim. He has already begun negotiations to try to resolve the issue through his attorneys. He does not fit into the drug-crazed rapist category he has been depicted in the past several days. He is human and he screwed (pardon the pun) up royally, but I don’t think there is enough information to conclude he is Evil Incarnate like so many of you do.
I guess that’s why there are defense lawyers as well as prosecutors, eh?
October 1, 2009, 12:07 amMark Field says:
There are multiple flaws in Maureen’s latest post, but I’ll mention only a couple. First, Polanski knew her age, so her looks are irrelevant. Second, while each person can of course judge age by pictures, there is no way IMO that she looked older than 17.
As for fleeing, there is no question that Judge Rittenband behaved badly. While that makes the flight humanly understandable (just as most criminals have incentive to flee), that doesn’t in any way excuse it.
The “facts” stated in Maureen’s original post are absurdly false. To the extent that these may be coloring her assessment, that assessment is based on falsehoods.
October 1, 2009, 12:53 amDuffy Pratt says:
People claim that Polanski knew the girl’s age because of the testimony at the plea hearing. Read it. It’s pretty obvious that he was lying to get the plea deal through. He first admitted that she was 13. Then asked again whether he knew she was 13, he paused a bit, consulted with his lawyer, and finally agreed that he did know. I don’t think that’s at all dispositive about whether he actually knew or not. He said what his lawyers told him to say to get the plea deal done. I also don’t think he’s the first guy to lie about the factual basis for his plea. I’ve seen it happen several times.
His not returning to the U.S. was completely understandable. It’s pretty clear that he cut an under the table deal with the prosecutors, and that he had good reason to think that the government would renege on the deal. Given his history, with the Tate murders, with the Soviets, with the Nazis, I think he had ample reason to distrust government.
Maureen may be overstating the case, but the times and attitudes were much, much different then. And, as I remember, she at least has accurately stated both the initial reactions to the incident, and then again the reaction to his failure to return to the country.
October 1, 2009, 3:56 pmDavid Nieporent says:
Duffy, he had no reason to lie about that; knowledge wasn’t an element of the crime he pleaded to. And he did know that she was underage, because he had to deal with her mother, not her, for the issues related to the photoshoot, and he knew she couldn’t even drive.
As for the rest, no, he didn’t cut an “under the table deal,” but an over the table one, and the prosecutors couldn’t and didn’t “renege” on it. The judge may have been planning to reject it, but that’s not reneging. And no, it’s not understandable. The LA County DA was not the Nazis. They had already given him a sweetheart deal and treated him very very well.
October 1, 2009, 4:44 pmDuffy Pratt says:
David:
Knowledge of her age was not an element. But they made a big deal of it at the plea hearing. I’m not sure, but my guess is that it might have had something to do with whatever triggered the psychiatric evaluations. Anyway, from the transcript, it’s pretty clear he was reluctant to admit that he knew that she was thirteen. It’s entirely possible he knew she was underage. Again, that would have been irrelevant as a legal matter.
The deal was over the table. But, it’s also pretty clear that Polanski and his lawyers were expecting something that could not be promised in open court. This sort of thing happens all the time in all sorts of contexts. People get told what they can “expect,” and are all but promised something. I think it’s perfectly plausible that Polanski got some assurances of probation or other lenient treatment.
And of course, the LA County DA were not the Nazis. But, if I had gone through what Polanski had gone through in his life, I don’t think I would be very trusting of any legal process whatsoever.
October 1, 2009, 7:19 pmMark Field says:
I agree with DMN’s last 2 posts.
October 1, 2009, 11:22 pmJanine Brei says:
There is no more desirable approach to view Gstaad and the adjacent regions than from high in the skies in a hot air balloon. This is usually a stunning approach to capture the village, snow peaked mountain tops and the valleys. This can be a getaway of a lifetime that you will always bear in mind.
August 28, 2010, 5:26 am