The Polanski Endgame

The fugitive director will likely never return to the U.S., and surely avoid jail, write noted trial lawyers Mark Geragos and Pat Harris. Inside Roman Polanski’s unusual legal options.

09.29.09 6:46 AM ET

A new report claims Roman Polanski was nabbed after he said the D.A. had given up on getting him. But the fugitive director will likely never return to the U.S., and surely avoid jail, write noted trial lawyers Mark Geragos and Pat Harris. Inside Roman Polanski’s unusual legal options.

While California’s financial crisis deepens to the point where Gov. Schwarzenegger is auctioning off every state asset not nailed down, including Alcatraz Island, California continues its dogged pursuit of a 31-year-old case involving a 76-year-old supposed fugitive and an alleged victim who has repeatedly begged authorities to be left alone. In a bizarre twist, the U.S Government has apparently adopted a tactic normally reserved for deadbeat dads on Superbowl Sunday. Talk about This is Your Life.

Swiss officials have put themselves in the rather unenviable position of angering the U.S. if they do not proceed or angering the European community if they do.

On Sunday, Swiss police arrested internationally noted film director Roman Polanski on a fugitive warrant in Zurich, hours before he was to be honored at the Zurich Film Festival with a lifetime achievement award on the red carpet. In spite of numerous previous trips to Switzerland and a very public invitation to honor him, Polanski now remains detained in a Swiss jail awaiting possible extradition to the United States.

Don’t bet on Polanski ever returning. There are more outcomes that wind up with the famed director of Chinatown, Rosemary’s Baby and The Pianist free in Europe than imprisoned in America.

To understand why, remember the background. Polanski pled guilty yet was never sentenced to one count of unlawful sexual intercourse with a 13-year-old girl in 1977. After the plea was taken, he was sent to prison for psychiatric testing. He remained there for 42 days. Before he was referred for this evaluation, commonly referred to as a 1203 report, the judge, prosecution and the defense agreed that at the time of his actual sentencing he would receive no additional jail time.

Unfortunately, after a notoriously publicity-driven judge made it clear that he was not going to go “soft” on Polanski and raised the specter of reneging on his word and instead sentencing the director to a life term, the director flew to France, never to return to the U.S.

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Here’s why that return will likely never happen: For openers, the Swiss Justice Ministry must first examine the U.S request for transfer and approve it. The approval process could take months. Given the European uproar over Polanski’s arrest, it seems highly likely they may simply deny the transfer. Swiss officials have put themselves in the rather unenviable position of angering the U.S. if they do not proceed or angering the European community if they do. The answer may well come down to who exerts the most pressure and it is not clear that the U.S. has that great a desire to become embroiled in this mess. One can imagine that Obama and Hillary may be a little more preoccupied with Iran nuclear programs and health-care reform rather than a 30-year old case that is likely to be dismissed if Polanski sets foot on U.S soil.

There are more scenarios that could result in Polanski never being returned to the U.S. One is that Polanski will be granted bail. Extradition proceedings can often take months and in some instances even a year or more. Bail is an option although even that request, if made by Polanski’s lawyers, could take some time. As a bail condition he would almost certainly be required to stay in Switzerland (perhaps even under home monitoring), but that apparently does not pose a problem since it is well-known that he lives part-time in a ski chalet in the Aspen-like community of Gstaad. It is one of the more interesting elements of his arrest that Polanski has been virtually a full-time winter resident of Switzerland with the Government turning a blind eye.

Another possibility is that Polanski’s attorneys in the U.S. can now ask the L.A. Superior Court judge to dismiss the case. Prior to the arrest, his U.S. lawyers requested the charges be dismissed based upon prior prosecutorial misconduct. Judge Espinoza stated that it was apparent that serious misconduct had occurred but refused to dismiss the case because Polanski had to be in custody to have the hearing for dismissal. Basically the judge said he must return to California to face the music.

We were faced with this very issue less than six months ago in the case of California vs. Miura. In that case, the judge ruled, over the prosecutions vehement objections, that our client, a Japanese citizen was deemed to be in custody for all purposes after his arrest in Saipan and prior to his extradition to the U.S.

Judge Steven Van Sicklen agreed with our argument that the accused may assert his rights prior to extradition because an actual restraint has occurred due to his arrest. It seems axiomatic that now that Polanski is in custody, he can reassert his rights to have the hearing on prosecutorial misconduct heard, before extradition, and ask for dismissal of the charges.

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Another option is for Polanski to simply waive the extradition hearings and agree to be brought to the U.S. There are no guarantees about the eventual outcome (as Polanski well knows since that is what led to his fugitive status) but it is certainly within the realm of possibility that he would not be sentenced to any additional jail time. The hearing to dismiss the charges based upon prosecutorial misconduct is a strong one and the judge has already indicated that he is troubled by what he has characterized as misconduct. Even if sentencing were to proceed, it is unlikely that the judge would sentence him to any additional jail time for Polanski given the misconduct, the original plea agreement, his advanced age, the overcrowding of California jails and the most notably the request by the victim to be done with this saga.

In short, if Polanski doesn’t readily agree to come back to California all the options indicate a long, drawn out and yes, expensive, process to bring Polanksi back to Los Angeles for what very well may result in nothing more than a dismissal of the charges or a time served sentence. All the while the auction continues for California properties, parks and monuments that were once reserved for the public trust.

Mark Geragos is a noted trial lawyer whose clients have included Michael Jackson, Scott Peterson, Winona Ryder, Gary Condit and Susan McDougal.

Pat Harris is a trial lawyer and the New York Times bestselling author of The Woman Who Wouldn't Talk.