A state appellate court Monday rejected Roman Polanski’s bid to have his 1977 child-sex prosecution dismissed but outlined a way that could end the long-running case without Polanski serving more time behind bars or returning to the American justice system he fled three decades ago.
In a 3-0 ruling, the 2nd District Court of Appeal suggested that Polanski ask to be sentenced in absentia for the statutory rape he admitted committing 32 years ago.
According to the three-justice panel, the sentencing hearing held in his absence would provide a forum for a Los Angeles County judge to evaluate Polanski’s allegations of prosecutorial and judicial misconduct in the original handling of the case.
If the evidence is persuasive, the justices wrote, “we are confident that the trial court could fashion a legal sentence that results in no further incarceration for Polanski.”
The opinion made clear that the justices were troubled by the misconduct allegations, enough so that they took the unusual step of injecting themselves into the details of a specific case.
“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,” the justices wrote.
The move surprised legal experts.
“This is much more hands-on than we expect,” said Loyola Law professor Laurie Levenson, who attended oral arguments. “It looked like the court really wanted to give some direction to all parties, including the lower court, as to how to finally resolve this matter.”
The court’s action comes three months after Polanski, who had lived as a fugitive in France, was arrested during a visit to Switzerland. He is under house arrest in Gstaad while Swiss courts decide whether to extradite him to Los Angeles. The resolution of that matter is not expected for some months.
His arrest sparked debate over the proper punishment for the 76-year-old director. The maximum sentence he could receive is two years in prison. Los Angeles County prosecutors have declined to say what sentence they will seek.
His supporters have said that the month and a half that he spent in state prison the year of his crime was enough and that he should be released without additional time in custody. A recent Times analysis of court records showed that most defendants in similar cases since 2004 received sentences of a year or more.
Although the district attorney and Polanski’s defense team have filed thousands of pages at the trial court and appellate levels arguing over the proper outcome, neither side has advocated publicly the prospect of sentencing Polanski in absentia.
“It’s a pretty darn good solution for Polanski,” Levenson said. “This could all go away and we would all kinda scratch our heads and wonder what has taken 30 years.”
The justices’ road map for ending what they called “one of the longest-running sagas in California criminal justice history” came in a 70-page decision that was on its face a defeat for the director. The court denied his request for a dismissal of his case on the basis of alleged wrongdoing by the trial judge, who died in 1993, and a now-retired prosecutor.
The justices upheld the ruling of a lower court judge that Polanski would have to surrender to U.S. authorities before asking for a dismissal. But they expressed dismay at the allegations of backroom dealings and broken promises by the late Superior Court Judge Laurence J. Rittenband and said they were “disturbed” that the Los Angeles County district attorney’s office had not addressed accusations of “profoundly unethical conduct” by former prosecutor David Wells.
The decision by Associate Justice Laurie D. Zelon was joined by Presiding Justice Dennis M. Perluss and Associate Justice Fred Woods.
The ruling leaves the next move to Polanski. To follow the justices’ prescription and be sentenced in absentia, he would have to write a letter asking the supervising judge of the Superior Court criminal division, Peter Espinoza, to proceed without him.
Whether Polanski wants to pursue that option is unclear. In the ruling, the justices wrote that based on comments by both sides during oral arguments Dec. 10, they expect no objection to a sentencing in absentia. But neither the director’s legal team, which has spent the last year fighting for a complete dismissal, nor the district attorney’s office, which has insisted on Polanski’s surrender, would answer questions about the decision Monday.
In a written statement, a spokeswoman for the district attorney’s office called the decision “another step” toward resolving the case, but indicated that prosecutors were still focused on getting Polanski back to the United States.
“We await a decision by the Swiss courts on his extradition to Los Angeles so all issues can be resolved by the Superior Court,” Sandi Gibbons wrote.
With their decision, the justices waded into a case that began in March 1977 when a 13-year-old girl told police that Polanski, then 43, had sexually assaulted her during a photo shoot at actor Jack Nicholson’s home.
The director was initially charged with half a dozen felonies, including rape and sodomy, but worked out a plea deal with prosecutors after the victim’s parents said they didn’t want her to testify at a trial. Under the deal, Polanski pleaded guilty to a single count of unlawful sexual intercourse with a minor, and his punishment was to be decided by Rittenband.
Polanski spent 42 days in state prison for diagnostic testing, but fled to Europe on the eve of his sentencing after his attorney told him the judge planned to send him back to prison. A 1997 deal for him to return voluntarily and be released on probation fell through, with Polanski’s side saying that they objected to television coverage of the proceeding.
An HBO documentary broadcast last year, “Roman Polanski: Wanted and Desired,” included interviews suggesting that Rittenband had reneged on an agreement that the diagnostic testing would constitute the director’s entire sentence and improperly had discussed the case with the press and with Wells, a prosecutor who was not assigned to the case. In the documentary, Wells said that in backroom conversations, he had prodded Rittenband to give the director a harsher sentence. He later recanted those statements.
In their ruling, the justices wrote that if an investigation proved that Wells did act improperly, they expect the district attorney’s office to consider reporting him to the state bar for disciplinary action.
Reached Monday, Wells said he had sent a letter to the state bar disavowing his comments.
“I lied in the documentary, and I told them that,” he said.