From the Archives: Defense strategies could keep Polanski out of prison

» UPDATE: March 20, 2017 — The legal team for Polanski — who has been a fugitive from U.S. justice for nearly four decades — has asked a judge to rule that their client has served more than enough time in custody for having had sex with a minor in the spring of 1977.

Roman Polanski rushed up to the British Airways counter at LAX in late January 1978 with an American Express card and an urgent desire to get out of town. He bought the last seat on an overnight flight to London and 15 minutes later, he wrote in his autobiography, watched Los Angeles gradually disappear out a jet window.

The criminal case that Polanski was fleeing never went away, as his recent arrest in Zurich attests. But how a Los Angeles court would restart the case if Switzerland extradites the film director, 76, is a question complicated by the passage of decades and recent allegations of judicial misconduct.

The district attorney’s office contends the yellowing case file only needs dusting off and proceedings should pick up exactly where they left off in 1978 -- with a judge sentencing Polanski for a statutory rape charge. “He will appear before the court and the court will decide what his sentence is,” said Sandi Gibbons, a spokeswoman for the district attorney’s office.

Legal experts, however, said Polanski has options beyond begging for leniency. There are a number of legal maneuvers, such as withdrawing his guilty plea, that could result in the case being dropped entirely or in a sentence of no prison time.

“This is an interesting case of strategy from the defense side,” said veteran defense attorney Harland W. Braun. “It’s going to get very complicated.”

Before he became a fugitive, a grand jury indicted Polanski, then 43, on six felonies, including rape and sodomy, for an assault on a 13-year-old girl. Prosecutors agreed to a plea deal because the victim’s family did not want to subject her to the trauma of testifying at trial.

Under the terms of the deal, Polanski pleaded guilty to unlawful intercourse with a minor in exchange for the other charges being dismissed. He agreed that Judge Laurence Rittenband would determine the sentence. Rittenband sent the filmmaker to the prison in Chino for a 90-day “diagnostic evaluation” that he said would “enable the Court to reach a fair and just decision.”

Prison officials released Polanski after 42 days and advised the judge that testing indicated his sentence should not include additional prison time. Rittenband labeled the prison report “a whitewash” and said he planned to send Polanski back to prison for an additional 48 days if he voluntarily agreed to deportation. Informed of this by his attorney, Polanski left the country, seeking refuge in France.

If he is returned to Los Angeles, Polanski’s first move would probably be requesting that all charges be tossed because of alleged judicial and prosecutorial misconduct, said Loyola Law School professor Laurie Levenson.

“Bring that motion first and try to get the entire case dismissed,” said Levenson, a former federal prosecutor.

The misconduct allegations would rest on interviews in a 2008 HBO documentary -- “Roman Polanski: Wanted and Desired” -- in which the original prosecutor, retired Deputy Dist. Atty. Roger Gunson, and defense attorney Douglas Dalton detailed improper and unethical conduct by the judge, who died in 1993.

The men said in the film and reiterated in court declarations this year that Rittenband improperly sent Polanski to Chino for the purpose of punishment rather than testing. The judge, they said, had agreed to set Polanski free after that stay, but reneged and decided to imprison the director again at his official sentencing in what amounted to a second round of punishment.

“I told Judge Rittenband that the diagnostic study was not designed to be used as a sentence, but [he] said . . . he was going to do it anyway,” Gunson wrote in an August declaration in appellate court.

In the documentary, retired L.A. County prosecutor David Wells recalled giving Rittenband the idea of using the diagnostic testing as punishment during backroom conversations about the case. Wells recanted that statement Wednesday.

Polanski’s attorneys presented evidence of misconduct by Rittenband and Wells to the Superior Court’s supervising criminal judge, Peter Espinoza, last year, but he refused to consider their arguments because the defendant was still a fugitive. Espinoza, who could preside over Polanski’s case in the future, noted, however, that he found evidence of “substantial . . . misconduct.”

If Polanski’s lawyers can establish that Rittenband went back on his word, they could argue that the director has already served his prison time and should now be placed on probation. That would mean his immediate release.

There is precedent for such a move in the case history. In 1997, when Polanski’s lawyer quietly approached Judge Larry Paul Fidler about resolving the case, the judge agreed to a plan in which the director would return to the United States and immediately receive a sentence of probation. According to a court declaration by Dalton, the judge faulted Rittenband’s actions in a meeting in chambers, saying the judge should have honored his pledge to release Polanski after his imprisonment in Chino.

Another defense strategy could be seeking to withdraw Polanski’s 1977 guilty plea. Voiding the plea deal would open the door to a trial on all six felonies originally charged, including more serious counts such as rape and sodomy, and the possibility of a much longer prison sentence.

But, longtime defense attorney Roger Jon Diamond said, “it could be good for him because the victim is not going to cooperate with the prosecutor.”

Samantha Geimer, now a married mother living in Hawaii, has repeatedly said Polanski has been punished enough and demanded that the case be dropped. Earlier this year, she accused prosecutors of victimizing her anew by mentioning “lurid” details of her assault in court papers.

“Theoretically, they could proceed without her, but it makes it very difficult for them,” Diamond said. Under California law, sexual assault victims cannot be jailed for refusing to testify.

Still, getting a conviction without the victim is possible if prosecutors rely on incriminating statements Polanski made in interviews, to police and probation officers, and in his autobiography as well as other evidence, said Robin Sax, a former Los Angeles sex crimes prosecutor. She said withdrawing his plea would be a dangerous gamble for Polanski.

“He got a celebrity deal at the time,” Sax said. “It doesn’t make sense for him to go to trial.”

If the defense strategies fail or if Polanski -- who almost certainly would be denied bail in Los Angeles -- opts for a quick resolution, the case would proceed to sentencing. He faces a maximum of 16 months behind bars, an official with the state Department of Corrections and Rehabilitation said Wednesday.

Prosecutors declined to say whether they would seek to charge Polanski in connection with his flight from the court.

The plea agreement called for the judge to decide punishment based on the arguments of attorneys and a probation officer’s report. That report recommended no time behind bars, citing in part Polanski’s mother’s death in the Holocaust as well as the murder of his pregnant wife by members of the Charles Manson gang.

“It is believed that incalculable emotional damage could result from incarcerating the defendant whose own life has been a seemingly endless series of punishments,” a parole officer wrote.

The victim and her family also pushed for a sentence without incarceration. The prosecution asked that “Mr. Polanski be placed in custody,” but did not specify a length of time.

The district attorney’s office declined to say what they would request at a new sentencing hearing.

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