US judges offer Roman Polanski a possible way out

A California appeals court yesterday dismissed a plea by Roman Polanski to have his 1977 child-sex prosecution case thrown out. But behind the headline decision there is some potentially good news for the 76-year-old filmmaker.

In what could prove to be a remarkable breakthrough for the fugitive director and his lawyers, the court suggested a solution which could mean Polanski will not have to serve any more time behind bars or be required to return to the American justice system he fled three decades ago.

Polanski, who is currently under house arrest at his Swiss chalet (above), is fighting extradition to the US over the statutory rape case which has hung over him for 32 years despite his 13-year-old victim, Samantha Geimer, requesting more than once over the intervening years that the case be abandoned so that she could get on with her life.

Yesterday the Californian 2nd District Court of Appeal rejected Polanski's attempt to have the case overturned. But in a unanimous ruling, the court's three justices said that Polanski could ask to be sentenced in absentia. This would see a Los Angeles County judge evaluate Polanski's allegations of prosecutorial and judicial misconduct in the original handling of the case. Polanski would not be required to attend the hearing.

If the evidence was persuasive, the justices wrote, "we are confident that the trial court could fashion a legal sentence that results in no further incarceration for Polanski".

Polanski spent 42 days behind bars back in the 1970s while he underwent diagnostic tests. In return for a promise that he would serve no further time in jail beyond the 42 days, Polanski pleaded guilty not to statutory rape but to a lesser charge of unlawful sex with a minor.

However, on the eve of his sentencing, his lawyer warned him that Judge Laurence J. Rittenband was planning to renege on the deal and send him back for more prison time. Polanski made an instant decision to flee to France where he enjoyed dual nationality which meant he could not be extradited. He has lived there ever since, never setting foot again in America.

A documentary broadcast last year, Roman Polanski: Wanted and Desired, contained hearsay evidence that Rittenband, who died in 1993, planned to go back on the deal after a former prosecutor, David Wells, who had nothing to do with the Polanski case, persuaded the judge to give the filmmaker a harsher sentence.

Wells, who risks being reported to the state bar for disciplinary action all these years later, has since said that he lied to the documentary makers and never persuaded Rittenband to break his promise to Polanski.
 
But the appellate justices made it clear yesterday that they were troubled by the allegations of misconduct. "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 offence or for his flight," the justices wrote.

American legal experts were frankly surprised by the justices' remarks. "This is much more hands-on than we expect," Loyola Law professor Laurie Levenson told the Los Angeles Times. "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 ball is now in Polanski's court. He has to write a letter asking Judge Peter Espinoza to proceed without him. But his lawyers need to be sure that the LA County judge will be persuaded by the evidence of prosecutorial and judicial misconduct. ·