Polanski case may hinge on 19th-century legal doctrine


As Roman Polanski enters his second week under house arrest at his Swiss chalet today, his American legal team is scheduled to face off with the prosecutors seeking his extradition in a downtown Los Angeles courtroom.

The issue before a state appellate court predates Polanski’s September arrest in Zurich and concerns the nuances of a 19th-century legal doctrine. But if the three-judge panel sides with Polanski, the ruling could set the stage for the possible dismissal of the director’s 1977 case and his release from detention.

The question before the 2nd District Court of Appeal is whether Polanski, 76, should have been permitted to ask a judge in L.A. to toss out his case on the grounds of prosecutorial and judicial misconduct earlier this year when he was still a fugitive. In February, the supervising judge of the L.A. County Superior Court’s criminal division declined to entertain the request as long as the director refused to return to the United States, where he faced immediate arrest.


Judge Peter Espinoza agreed with Polanski’s attorneys that there was evidence of “substantial” misconduct in the original handling of the case but said the principle of fugitive disentitlement barred him from convening a formal hearing or otherwise taking action. The doctrine, which dates to the 1800s, holds that defendants who flout the law by fleeing a jurisdiction cannot then call upon the court for help.

Polanski’s lawyers appealed, saying that actions of a judge and prosecutor were so alarming that whether the director was physically present in court or not, the judge “should address the misconduct . . . in the interests of maintaining the integrity of the state’s criminal justice system.”

The appellate justices took the case and ordered the lower court to explain its ruling. Prosecutors from the L.A. County district attorney’s office, who will argue on behalf of the court, maintain that the fugitive disentitlement doctrine applies to Polanski. In a court filing, two prosecutors contend his allegations of wrongdoing in the legal system were matters of convenience rather than conscience for the director.

“It is not his desire to have the case formally end because of concerns for the integrity of the judicial system. . . . His ultimate goal is to have the case dismissed,” the prosecutors wrote.

In 1977, a 13-year-old girl accused Polanski, then 44, of raping and sodomizing her. He pleaded guilty to a single statutory rape count after the girl’s parents urged prosecutors to settle the case to spare her the ordeal of a trial. Polanski spent 42 days in prison but fled to Europe after his attorney told him the judge planned to give him additional time behind bars at his formal sentencing.

He later settled a civil suit with the victim. She publicly forgave him and has castigated prosecutors for not dismissing the case. Her attorney filed papers last week indicating that he would cite her rights under the state Victim’s Bill of Rights in asking the appellate justices to rule in Polanski’s favor.

A court administrator said a decision by the appellate justices will probably come in the next month, well in advance of the final decision about extradition by Swiss courts.