LOS ANGELES COURT TO POLANSKI PROSECUTORS: CUT A DEAL

In a highly unusual and lengthy (70 page) slip opinion, the California Court of Appeal for the Second Appellate District in Los Angeles has declined to overturn a trial judge’s refusal to entertain award winning director Roman Polanski’s bid to dismiss the 32 year old pending “statutory rape” conviction against him due to his fugitive status.

However, the appellate court to the stars (the same court that will be weighing convicted music producer Phil Spector’s fate in late 2010) suggested that Polanski allow himself to be sentenced without returning to the United States and could then raise his claims of prosecutorial and judicial misconduct at the time of sentencing—without ever setting foot back on US soil.

The director is currently being held in a gilded cage: He is is under “house arrest” in his fabulous villa in ultra-exclusive Gstaad while a Swiss court decides whether to ship Polanski back to Los Angeles to face the charges he fled over three decades ago.

The court of appeal panel also emphasized the substantial evidence identified by the trial court supporting the serious prosecutorial and judicial misconduct that the famous fugitive has alleged:

“The trial judge now presiding over the matter, Judge Espinoza, has already indicated that at a sentencing hearing Polanski would be able to fully litigate the allegations of misconduct and a prior pledge by Judge Rittenband as to Polanski's punishment: At the same hearing at which Judge Espinoza ruled that he would not entertain Polanski's section 385 request, he also stated, “[H]aving reviewed all of the evidence in this case, notwithstanding the People's assertion that the misconduct that occurred is still in dispute, there was substantial, it seems to me, misconduct that occurred during the pendency of the case which will be among the many factors that would be considered by me and any other court that would sentence Mr. Polanski. He had a plea agreement with Judge Rittenband. Unfortunately, Judge Rittenband is long since deceased, but the terms and conditions of that plea agreement are well known.”

The panel went on to comment:

“We are disturbed by the district attorney's refusal in the briefing submitted to this court to address or consider what appears to be an admission by a former member of the district attorney's office that he: engaged in highly improper ex parte communications with a judge about a pending matter; recommended the misuse of a sentencing tool as a punishment; deliberately provoked the judge against a defendant based on a newspaper photograph and no further information; and pursued a personal agenda against a defendant. Such profoundly unethical conduct, if proven to be true, strikes at the heart of the prosecutor's role as a guardian of systemic integrity.”

But the appellate court saved the best for last, all but instructing prosecutors to cut a deal with the fugitive director:

“We exhort all participants in this extended drama to place the integrity of the criminal justice system above the desire to punish any one individual, whether for his offense or for his flight. As Justice Murphy wrote in dissent in Eisler, supra, 338 U.S. at pages 194 and 195, “Our country takes pride in requiring of its institutions the examination and correction of alleged injustice whenever it occurs. We should not permit an affront of this sort to distract us from the performance of our constitutional duties.” We encourage all participating parties to do their utmost to ensure that this matter now draws to a close in a manner that fully addresses the issues of due process and fundamental fairness raised by the events of long ago.”

Therefore, while Polanski did not obtain the outright dismissal he sought, the 70 page appellate decision was clearly a victory for the fugitive director. Los Angeles prosecutors have been ordered to investigate the alleged misconduct of one of their own, and if found to be true, to ask the trial judge to dismiss the case.

In any event, the court of appeal has instructed "all participants" (read as judge and prosecutors) to place the interests of the intgrity of the justice system over punishing Polanski for his crime--or even his flight from justice 32 years ago.

Polanski v. Superior Court (2009) __Cal.App.4th__, 2009 WL 4894667