What California Law Does and Doesn’t Say About Roman Polanski

It’s been two days since Roman Polanski was arrested in Switzerland and I still can’t let go of the subject. The firestorm of comments and opinions has been understandable. A 43 year old man, as Polanski was in 1977, had sex with a 13 year old girl, the age Samantha Geimer (then Gailey) was at the time. This cannot provoke anything but heated reactions, especially in light of what actually transpired in Jack Nicholson’s house. 32 years ago. But what fascinates me most about this story is not the passionate reactions or the moral dilemmas about art vs. monstrous human behavior, but that what Polanski actually did is not what he is legally accountable for.

Before I keep going, I should point out the following: I’m not a lawyer, and my understanding of the law is based on what I’ve been able to research and read up on since Polanski was arrested, If I’ve made some wrong assumptions, I happily welcome corrections. But much of the media, blog and Twitter reaction has been by those who are also not lawyers, nor terribly familiar with the case details. It seems to me that looking at the law is a better guide to why certain things happened the way they did, and why other things did not.

When Polanski was originally arrested, he was charged with several very serious counts: rape by use of drugs, perversion, sodomy, lewd and lascivious act upon

a child under 14, and furnishing a controlled substance (methaqualone)

to a minor. The day before he was due to stand trial, his lawyer, Douglas Dalton, brokered a plea agreement with the prosecutor, Roger Gunsen, after receiving word from the Gailey family’s lawyer, Lawrence Silver, that the girl did not want to testify. So the charge Polanski pled guilty to, and was awaiting sentencing for, was “unlawful sexual intercouse with a minor.”

Legally, this is where things become a little murky, because of the way the charge is specified on the books for potential sentencing guidelines under section 261.5© of the California Penal Code:

Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. (emphasis added)

When a crime can be classified in either of the two categories – misdemeanor or felony -  it is known as a “wobbler”. See also see the U.S. Court of Appeals, 8th Circuit, in relation to Lorenzo Viezcas-Soto, for how the “wobbler” designation for this particular crime affected sentencing on a later conviction.

The maximum allowable sentence for this particular charge is now 48 months, or four years (see section 261.5(d) of the California Penal Code) but in 1977 the upper limit was indeterminate – which meant imprisonment for up to 50 years. But recent precedent had those convicted of unlawful sexual intercourse with a minor get probation, as was recommended by the psychiatrist who evaluated Polanski and evaluators at Chino State Prison, where Polanski was remanded to for what was supposed to be a 90-day period (he was released after 42 days.)

The 2008 documentary Roman Polanski: Wanted or Desired may have some bias issues, but it does rightfully point to how the legal waters were muddied by the late Judge Laurence J. Rittenband’s actions. The plea agreement meant that legally, he should only have certain latitude on punishment. The indeterminate upper limit meant he could impose a stricter punishment, but at the expected cost of appeals that may well have gone all the way to the State – or even the Federal – Supreme Court. Though it appears to be inappropriate in hindsight, Rittenband turning for advice to another prosecutor and a court reporter on how to sentence Polanski is understandable in light of the intense media scrutiny and pressures he faced.

Now, 32 years later, Polanski is in Switzerland, fighting extradition. I don’t condone what he did; not in the slightest. His past is tragic and devastating but is in no way an excuse for his actions. But from a legal standpoint, this isn’t, say, an open-and-shut case of unlawful flight from prosecution on the original, far more criminally grave charges. He fled after pleading out on a lesser, more criminally ambigious charge that could have been interpreted as a misdemeanor or a felony depending on who was making the interpretation at a given time. And should efforts to stop extradition fail and Polanski returns to Los Angeles for sentencing on what he pled guilty to, it remains to be seen which way the law will wobble.

One more thing: if the charge Polanski pled guilty to stands (if I’m reading this right) he would not have to register as a sex offender in California under Section 290 (2)(D)(iii)(II) of the state’s penal code.

(Slate’s The Explainer also addresses some related questions on the Polanski case.)

UPDATE: The Smoking Gun posts Polanski’s 1977 plea agreement, which clarifies a number of things I had brought up and wondered about.  The “wobbler” designation may not actually apply because Polanski pled guilty to the felony charge of unlawful sexual intercourse with a minor (even though Judge Rittenband had the power to determine if the sentence would be for either a felony or misdemeanor charge.) The maximum sentence at the time – at least that Polanski was aware of – was “one to fifteen – twenty years in State Prison.” The agreement also plainly spells out that Polanski’s guilty plea was not binding, “that the Court may, at the time set for hearing on the applicatioin for probation or pronouncement of judgment, withdraw its approval, in light of further consideration of the matter.”

And perhaps this exchange seems a little ironic:

GUNSON: Since you are not a citizen of the United States, a possible consequence of your plea of guilty today may be that you would be deported and excluded from this country. Do you understand that the decision to deport and exclude you from the United States is made by the Federal Government? That is, the Immigration and Naturalization Service?


GUNSON: Do you understand that although Judge Rittenband may recommend to the INS that you not be deported, the Judge has not made that decision, and will not make that decision until the probation and sentence hearing?


GUNSON: Do you understand that Judge Rittenband may not make such a recommendation?


UPDATE 2: Peter Arenella, a professor at UCLA's Law School and a former criminal defense attorney, writes in with his observations about the case (which he has no connection to) and comments on my post:

While you correctly point out that the plea bargain included language noting that the bargained agreement between the defense and the prosecution could not force the judge to accept the probation recommendation, such language is “boiler plate” language which states the obvious to any attorney working in the criminal justice system. However, the plea bargaining system would fail if judges, after deciding not to accept the sentencing bargain agreed to by the parties, also then refused to allow the defendant to withdraw his plea and go to trial. The legal injustice here is not that the judge ultimately concluded that probation was an insufficient sentence for polanski’s egregious conduct; that decision lies within his discretion as the sentencer.

But, this judge then did the unthinkable by refusing to allow Polanski to withdraw his plea and go to trial. In short, he gave the state what it bargained for, the certainty of conviction while avoiding a contentious trial, yet the judge did not give the defendant what he was entitled to if he rejected the probation recommendation, the right to withdraw the plea and go to trial. Thi
s was outrageous judicial conduct then, and illegal in most jurisdictions today. If one were to put themselves in Polanski’s shoes at this juncture, the decision to flee the jurisdiction, while not the legally appropriate way to challenge the judge’s rulings, becomes understandable because of the clear message that the judge was sending: “I am willing to violate the law to ensure you get what you deserved for the rape of a minor, your real conduct, but not the far less serious crime to which you pled guilty.”

TV legal pundits have noted that the appropriate way to challenge the judge’s misconduct was straightforward: Polanski should have gone to jail and had his attorney challenge the judge’s misconduct on appeal. Such observations ignore the bad choices Polanski was then facing: should he trust a legal system to correct a gross injustice that the very same system had just committed by going to jail and hoping that the appeal will be resolved in his favor[a process that might take years] or should he flee the system’s jurisdiction. I want to be clear as a former criminal defense attorney that I do not approve of his decision to flee; nor do I view him as the “victim” then or now. However, his outrageous conduct towards his 13 yr old victim in no way justifies the legal system’s failures in this case.

Two additional observations: The Slate writer you refer to in your blog focuses on the “real conduct” that Polanski engaged in at the time of his crime to point out correctly that Polanski isn’t the victim here. True, but she ignores the fact that his legal guilt was for a plea to a much less serious crime than the facts she relied on. The Slate writer insists that the “law” demands a particular result [his incarceration] and then proceeds to ignore completely the difference between polanski’s moral guilt for raping a minor and his legal guilt for a less serious crime that usually triggers probation for first time offenders. As the father of three teenage daughters, I can readily understand why so many of the commentators in this case have insisted that the bargained for probation sentence depreciated the seriousness of his “real” crime. However, the less serious crime to which he pled guilty ordinarily triggered probation for first time offenders in that era.

Final irony: the public understands that celebrities frequently get breaks from the legal system that the average citizen would never receive; yet this case illustrates the other side of that coin-ask yourself if some average citizen was the defendant in this case with the same facts who fled the country to escape the judge who seemed so hell bent on giving him at least ten years-do you think that 32 years later the district attorney’s office would seek that person’s extradition from a foreign country when this fugitive committed no new crime in that 32 year period? I don’t think so. In making this point, I am not trying to offer some excuse for what Polanski did: he had no excuse for his behavior. Nor am I suggesting that a prison sentence for his crime would be unjust or that the mere passage of time combined with the offender’s good behavior is relevant to what sentence he deserves for his crime. I am simply pointing out that the practical realities of law enforcement sometimes favor celebrity defendants; but sometimes one’s celebrity status cuts the other way.