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10.02.09

The Lost Polanski Transcripts

The idea that Roman Polanski was done in by an unscrupulous judge is a myth. Marcia Clark studies the startling transcripts from his 1977 guilty plea.

Ever since he fled Los Angeles for Europe, Roman Polanski and his defenders have been putting out a story: he had to run because Judge Laurence Rittenband, after having promised not to impose any jail time past a 42-day psychiatric evaluation for having sex with a 13-year-old girl, had changed his mind and intended send him to state prison. It’s a myth.

How do I know this? From Roman Polanski.

“What is the maximum sentence for unlawful sexual intercourse?” asked the prosecutor.

“It’s one to fifteen – twenty years in State Prison,” responded Polanski.

The transcript of Polanski’s August 8, 1977 courtroom guilty plea is one of the lengthiest, most thorough pleas I’ve ever seen. Reading it allows one to literally travel back in time to the Carter years, and hear all the players—Judge Rittenband, prosecutor Roger Gunson and, yes, Polanski— in their own exact words. No interpretations, no spin.

First, Gunson read out the litany of charges Polanski initially faced:

“Mr. Polanski, you are charged in Information A-334139 with the crimes of Furnishing Drugs to a Minor, Lewd or Lascivious Acts upon a Child under 14 year of Age, Unlawful Sexual Intercourse, Rape by Use of Drugs, Perversion, and Sodomy, all felonies committed on or about March 10th, 1977.”

The single crime Polanski pled guilty to, unlawful sexual intercourse, was the lightest of the charges filed against him. But even so, because the victim was so young, the judge had the power to require Polanski to register as a sex offender, something Gunson was quick to remind the director.

Full coverage: The Polanski Scandal

Marcia Clark: Polanski’s Lost Alibi

Robert Goolrick: Polanski’s Victim and Me
“Mr. Polanski, because this offense involved a girl under the age of 14, it is mandatory that MDSO proceedings be instituted. MDSO means Mentally Disordered Sex Offender. If you are found to be an MDSO, you would have to register that fact with the law enforcement officer of the community in which you resided.”

Gunson then went on to ask: “….on March 10, 1977, the day you had sexual intercourse with the complaining witness, how old did you believe her to be?”

Polanski conferred with his lawyer and then answered: “She was 13.”

Gunson: “Did you understand that she was 13 on March 10, 1977, when you had sexual intercourse with her?”

Again, Polanski conferred with his lawyer, then answered: “Yes.”

So Polanski knew he faced the possibility of becoming a registered sex offender and admitted in open court that he was subject to that penalty because he knowingly had sexual contact with a girl who was 13 years old.

He also knew the sentence Polanski he was facing: “What is the maximum sentence for unlawful sexual intercourse?” asked Gunson.

“It’s one to fifteentwenty years in State Prison,” responded Polanski.

“Do you understand it is also possible that you could be placed on probation, with or without being required to serve up to one year in the County Jail?” the prosecutor next asked

“Yes,” responded Polanski.

Twenty years in prison—or zero. Felony with registration as a Mentally Disordered Sex Offender—or a misdemeanor with probation. Polanski knew the entire range of sentences he faced. And who did Polanski explicitly acknowledge had the sole power to decide which it would be? That’s what Gunson wanted to know:

“Mr. Polanski, who do you believe will decide what your sentence will be in this matter?”

Polanski: “The Judge.”

Polanski didn’t respond, so Gunson repeated this critical question: “Do you understand that the Judge has not made any decision?”

“Yes,” said Polanski.

Gunson next asked: “Who do you think will decide whether or not you will get probation?”

Polanski: “The Judge.”

Gunson: “Who do you think will determine whether the sentence will be a felony or a misdemeanor?”

Polanski: “The Judge.”

Gunson: “Do you understand that at this time, the Court has not made any decision as to what sentence you will receive?”

Polanski didn’t respond, so Gunson repeated this critical question: “Do you understand that the Judge has not made any decision?”

“Yes,” said Polanski.

Could this be any clearer? This exchange proves unequivocally that no sentencing promises had been made and that the judge would decide what Polanski would get. Then Gunson made it clear that this would be no lay-down by the prosecution either:

“Mr. Polanski, do you understand that at the time of probation and sentencing, the prosecutor may argue that you should be sentenced to State Prison, or be incarcerated in the County Jail?”

Polanski: “Yes.”

Gunson then elicited from Polanski that he was pleading guilty freely and voluntarily, after full consultation as to all the possible consequences of his plea with his lawyer, which included the “possible sentences, the possible MDSO procedures, and the possible deportation.” Gunson then went on to state: “The District Attorney will make a motion to dismiss the remaining pending charges after sentencing. Other than that promise, has anyone made any promises to you, such as a lesser sentence or probation, or any reward? Immunity? A court recommendation to the Immigration and Naturalization Service, or anything else, in order to get you to plead guilty?”

Polanski: “No.”

Gunson then asked Polanski’s lawyer, Douglas Dalton, whether he was aware of any promises made to his client that hadn’t been stated on the record in open court that day, and the attorney confirmed that there hadn’t been, and he consented to the plea. At that point, the Judge Rittenband stopped the proceedings just before Polanski entered his plea:

“I must advise the defendant, under section 1192.5 of the Penal code, that the approval of the Court to the plea is not binding on the Court; that the Court may, at the time set for hearing on the application for probation or pronouncement of judgment, withdraw its approval, in light of further consideration of the matter; and three, in such case, the defendant shall be permitted to withdraw his plea, if he desires to do so. Now, Mr. Polanskiand the Court will also make a finding at this time that the plea was freely and voluntarily made, and that there is a factual basis for it. You may now proceed to take the plea.”

And so Gunson asked: “Mr. Polanski, to Count III of indictment number A-334139, which charges you with the commission of Unlawful Sexual Intercourse on March 10th, 1977, a felony, how do you plead?”

Polanski: “Guilty.”

Bottom line: Polanski’s story about getting sold a bill of goods so the judge could sell him down the river is bunk. Few defendants were ever more thoroughly warned of the sentence they faced and the power of the judge to impose it as Roman Polanski.

The next step was for Polanski to undergo psychological assessment by two psychiatrists to determine whether he was a MDSO—Mentally Disordered Sex Offender. At the same time, a probation report was prepared—routinely done prior to sentencing in all cases.

On September 19, 1977, court again convened. The psychiatrists both reported that Polanski was not an MDSO and no one argued to the contrary. So the judge agreed that he would not have to be registered as a sex offender, and they moved on to the sentencing.

Dalton, Polanski’s lawyer, started out conciliatory, stating “no reasonable person would stand here and argue to you that Mr. Polanski is entitled to any special consideration,” but that he shouldn’t be treated more harshly either, then went on to say:

“This particular offense doesn't have the connotation of rape. It's not even an offense, a criminal offense, in about 13 of our states and in many places of the world… this is a crime that's been committed by policemen; it's been committed by probation officers assigned to counsel girls at a detention school; it's a crime that's been committed by people that have a far higher trust to their victims than did Roman Polanski… I feel he is a criminal only by accident; and that there are many complex social and psychological factors that were involved in this situational event which otherwise was a complete departure from his normal mode of conduct.”

He’d come to rue those last words. When prosecutor, Roger Gunson stood up to speak, he put all the pieces together, giving a complete view of the case that has not, until now, been fully revealed. Gunson began by referring to the report of one the psychiatrists, one with a poor reputation among Los Angeles district attorneys, Dr. Alvin Davis:

“Doctor Davis seems to misunderstand the underlying circumstances, when he indicates that the offense occurred as an isolated instance of transient poor judgment and loss of normal inhibitions, in circumstances of intimacy and collaboration in creative work; and with some coincidental alcohol and drug intoxication.

He also indicates that the sexual activities occurred naturally and mutually.”

“Naturally and mutually.” A 44-year-old man who dopes, rapes and sodomizes a 13-year-old girl. Gurson went in for the kill:

“From the testimony at the Grand Jury and from the Grand Jury transcript, we know that not to be true. We know from the probation report that—from letters sent in that Mr. Polanski is of very high intelligence. One friend indicates that Mr. Polanski is almost a teetotaler. And we also have information in the probation report that Mr. Polanski has received a prescription for 150 milligram quaalude, for jet fatigue in his travels throughout the world. However, the evidence indicates that if Mr. Polanski is of high intelligence, and if he is next to a teetotaler, and if he was not a user of drugs, then why do we have a—the situation that we have in this case?”

Gurson’s implication: Polanski that Champagne so he could pour it down his victim’s throat? As for the 150 milligram Quaalude:

“And that's it: We have Mr. Polanski coming to the family, showing them an elaborate, slick paper magazine—Paris Vogue—with beautiful photographs of beautiful girls and scenery and background…. Mr. Polanski shows these articles and this issue of Paris Vogue to the family and asks if their daughter, the complaining witness, in this case, who he has been told is 13 years old, if she would like to be photographed for a future article in that same magazine. The family agrees, and Mr. Polanski comes back at a later time, and there is a photo session at that time….”

“In addition to that, there has been some indication that there is some blame to be put on the mother for allowing the daughter to go. However, it appears from the testimony at the Grand Jury—and also from the probation report—that the mother asked to go on that photo assignment, and it was Mr. Polanski who suggested and who indicated that the mother should not go, because it would—it might inhibit the girl in the photo session.”

So it wasn’t just a stage mom who said, “Sure, take my daughter.” This mom wanted to be there, and it’s a fair bet that mom would’ve “inhibited” her daughter right out of there the minute Polanski told her to take her shirt off.

“Mr. Polanski…furnished the champagne to the 13 year old girl. He also, at a later time that evening, produced parts of a quaalude tablet, a 300 milligram quaalude tablet, and offered that to the girl, and the girl took that quaalude tablet…. It does not appear that these are the normal job or work projects involved in photographing a 13 year old girl. This does not appear to be coincidental drugs and alcohol. This all indicates that this is more than a normal course of action, a situational event. It appears that it was almost planned.…your Honor, the People are requesting that Mr. Polanski be placed in custody for a violation of Section 261.5, the offense that he has pled guilty to.”

The defense attorney replied that Gunson was taking things out of context, and reminded the judge that the victim and her family were in favor of a probationary sentence. What followed from Judge Rittenband was less a statement about the Polanski case than how, even in 1977, the “she had it coming” attitude prevailed, even on the bench:

“The probation report discloses that although just short of her 14th birthday at the time of the offense, the prosecutrix was a well developed young girl who looked older than her years; and regrettably not unschooled in sexual matters. She has a 17 year old boyfriend, with whom she had sexual intercourse at least twice prior to the offense involved. The probation report further reveals that the prosecutrix was not unfamiliar with the drug quaalude, she having experimented with it as early as her tenth or eleventh year.”

None of that is relevant to whether the girl was raped. Nowadays, a judge wouldn’t say any of it. Some people still make that kind of judgment about a rape victim—but I call it some form of progress that we at least know that kind of thinking is wrong. And the judge goes on to say as much:

“However, although the prosecutrix was not an inexperienced and unsophisticated young girl, this of course was not a license to the defendant, a man of the world, in his forties, to engage in an act of unlawful sexual intercourse with her… and it is no defense to such a charge that the female might not have resisted the act.”

Except of course, that she said she did resist. She testified to the Grand Jury: “I was ready to cry. I was kind of, I was going, ‘No. Come on, stop it.’ But I was afraid.” And being isolated up there at Jack Nicholson’s house, with no way home, how hard could she afford to fight? As she testified before the Grand Jury: “I was mostly just on and off saying ‘No, stop.’ But I wasn’t fighting really because I, you know, there was no one else there and I had no place to go.”

Nevertheless, despite the ambivalence shown in these remarks, after taking a slap at the victim’s mom, the judge decided to send Polanski to prison for a 90 day diagnostic study:

“It is the judgment of this Court that the defendant be committed to the custody of the Department of Corrections at its prison facility in Chino, California, where he will be confined for a period of 90 days and undergo a diagnostic evaluation, pursuant to the provisions of 1203.03 of the Penal Code.”

That might have been the end of it, with Polanski in and out of jail in a few short months. But then Dalton asked to let him stay out and work on a film for three months before reporting to prison:

“Mr. Polanski is presently engaged as a director of a film that is being producedthis is a film that is budgeted for many millions of dollars and involves the services of literally hundreds of people.”

Wait. Wasn’t this the lawyer who argued Polanski shouldn’t be treated any differently than anyone else? Gunson countered: “That is a movie that the defendant has contracted to make after this offense.”

The judge agreed to give Polanski three months to get his movie up and running. But even then, whatever the lawyers may have thought, the judge foreshadowed a different agenda: “The request is for 90 days, and I assume that the defendant and his counsel were optimistic about the defendant just being given probation, and probably the contract was made on that assumption. However, it was miscalculated.”

In other words, Polanski had figured he’d get out of court with no time at all. Instead, he was ordered to report to prison for diagnostic on December 19, 1977. The lawyers, interviewed after the hearing, said they didn’t think Polanski would have to do any more time after the diagnostic. But there’s no question that the transcript show that no such promise was ever made in court, which is the only thing that counts.

Nevertheless, the lawyers might have been right if only Polanski had kept a low profile. Was that so much to ask? Apparently so.

On October 24, 1977, Polanski got photographed with his arms around yet another teenaged girl, Nastaji Kinski, in a bar during an Oktoberfest celebration in West Germany. Polanski was told there’d be no further extensions and he had to report to Chino State Prison on December 19, 1977.

Polanski did 42 days of diagnostic testing in Chino before being released on January 28, 1978. During that time, Judge Rittenband, viewing the photo with Kinski, had apparently come to feel that stint just wasn’t enough.

Polanski caught wind of the attitude shift. On February 1, 1978, the day of sentencing, Polanski’s lawyer stood up in court and said: “Your honor, I received a call from Mr. Polanski advising me he would not be here this morning.”

Or any morning after for the next 32 years.

Marcia Clark, the former L.A. district attorney who prosecuted the O.J. Simpson murder case, has since served a regular legal television commentator. She has written a bestselling book, Without a Doubt, served as a columnist for Justice Magazine and is finishing her debut crime novel.