LOS ANGELES COURT TO POLANSKI PROSECUTORS: CUT A DEAL

In a highly unusual and lengthy (70 page) slip opinion, the California Court of Appeal for the Second Appellate District in Los Angeles has declined to overturn a trial judge’s refusal to entertain award winning director Roman Polanski’s bid to dismiss the 32 year old pending “statutory rape” conviction against him due to his fugitive status.

However, the appellate court to the stars (the same court that will be weighing convicted music producer Phil Spector’s fate in late 2010) suggested that Polanski allow himself to be sentenced without returning to the United States and could then raise his claims of prosecutorial and judicial misconduct at the time of sentencing—without ever setting foot back on US soil.

The director is currently being held in a gilded cage: He is is under “house arrest” in his fabulous villa in ultra-exclusive Gstaad while a Swiss court decides whether to ship Polanski back to Los Angeles to face the charges he fled over three decades ago.

The court of appeal panel also emphasized the substantial evidence identified by the trial court supporting the serious prosecutorial and judicial misconduct that the famous fugitive has alleged:

“The trial judge now presiding over the matter, Judge Espinoza, has already indicated that at a sentencing hearing Polanski would be able to fully litigate the allegations of misconduct and a prior pledge by Judge Rittenband as to Polanski's punishment: At the same hearing at which Judge Espinoza ruled that he would not entertain Polanski's section 385 request, he also stated, “[H]aving reviewed all of the evidence in this case, notwithstanding the People's assertion that the misconduct that occurred is still in dispute, there was substantial, it seems to me, misconduct that occurred during the pendency of the case which will be among the many factors that would be considered by me and any other court that would sentence Mr. Polanski. He had a plea agreement with Judge Rittenband. Unfortunately, Judge Rittenband is long since deceased, but the terms and conditions of that plea agreement are well known.”

The panel went on to comment:

“We are disturbed by the district attorney's refusal in the briefing submitted to this court to address or consider what appears to be an admission by a former member of the district attorney's office that he: engaged in highly improper ex parte communications with a judge about a pending matter; recommended the misuse of a sentencing tool as a punishment; deliberately provoked the judge against a defendant based on a newspaper photograph and no further information; and pursued a personal agenda against a defendant. Such profoundly unethical conduct, if proven to be true, strikes at the heart of the prosecutor's role as a guardian of systemic integrity.”

But the appellate court saved the best for last, all but instructing prosecutors to cut a deal with the fugitive director:

“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. As Justice Murphy wrote in dissent in Eisler, supra, 338 U.S. at pages 194 and 195, “Our country takes pride in requiring of its institutions the examination and correction of alleged injustice whenever it occurs. We should not permit an affront of this sort to distract us from the performance of our constitutional duties.” We encourage all participating parties to do their utmost to ensure that this matter now draws to a close in a manner that fully addresses the issues of due process and fundamental fairness raised by the events of long ago.”

Therefore, while Polanski did not obtain the outright dismissal he sought, the 70 page appellate decision was clearly a victory for the fugitive director. Los Angeles prosecutors have been ordered to investigate the alleged misconduct of one of their own, and if found to be true, to ask the trial judge to dismiss the case.

In any event, the court of appeal has instructed "all participants" (read as judge and prosecutors) to place the interests of the intgrity of the justice system over punishing Polanski for his crime--or even his flight from justice 32 years ago.

Polanski v. Superior Court (2009) __Cal.App.4th__, 2009 WL 4894667

MERRY CHRISTMAS BLOGONAUT READERS

We will be back after the Holidays. Enjoy yours—no matter which religious holiday that you celebrate!

VICTIM’S ATTORNEY: DISMISS ROMAN POLANSKI CASE

AP hearing video link, above.

Courtesy of the New York Times, we have learned additional details about last week’s Los Angeles hearing before a California appeals court: The now 46 year old victim addressed the court—which is considering Polanski’s bid to compel the trial court to consider his long-distance motion to dismiss the charges—and through her attorney has demanded dismissal of the charges.

As observed by the Times:

“Roman Polanski is getting help from his victim in a bid to have sex misconduct charges against him dismissed.

“The attorney for Samantha Geimer, who long ago publicly identified herself, argued for an end to the 32-year-old case on Thursday, saying she has repeatedly said she wants it dropped.”

The times reported:

“Geimer's attorney, Lawrence Silver, argued for dismissal on grounds of a recently adopted law allowing victims to have a say in cases.

“Justice Fred Woods responded that when the law was passed, ''No one could have anticipated the facts of this case.''

“Silver added, ''No one in this room would say the proceedings were fair. Thirty-two years is enough.''”

This request for dismissal by the now adult victim adds an additional dimension to an already interesting and unique set of circumstances: The very rare instance (at least in non-domestic violence cases) where the criminally accused is aided in his defense by the alleged victim.

How the prosecution can put on a 32 year old statutory rape case without the cooperation of the alleged victim is not known.

Earlier this year, Polanski's attorneys made similar arguments for dismissal in a Los Angeles court, and Judge Peter Espinoza said "substantial misconduct" did occur.

But in May, Espinoza refused to dismiss the case, saying Polanski must first surrender on the charges—leading to last week’s appeal hearing.

Video: Polanski victim requests dismissal (AP)

POLANSKI CASE HEARD BY CALIFORNIA COURT AS DIRECTOR CHILLS IN TONEY VILLA

As Oscar winning—and fugitive—director Roman Polanski hangs at his chalet (under house arrest) in ultra-exclusive Gstaad (think Prince Charles, Rodger Moore, and international royalty of all sorts)—a California court of appeal is mulling over Polanski’s bid to return his motion to dismiss the case to Los Angeles County Superior Court judge Peter Espinoza for an up-or-down determination on whether Espinoza should dismiss all charges against the director due to alleged judicial and prosecutorial misconduct.

Judge Espinoza decided earlier this year that while Polanski had presented compelling evidence that 32 years ago and before the director fled to Europe from his Los Angeles home that his original trial judge (now deceased) improperly communicated with a member of the Los Angeles County District Attorney’s Office in aid of ambushing Polanski at his stenciling hearing, the judge was powerless to decide the case since Polanski is a fugitive—albeit a sable lined fugitive.

This hearing took place yesterday, in a Los Angeles courtroom at the California Court of Appeal.

According to the Los Angeles Times:

“An attorney for Roman Polanski urged a California appeals court panel Thursday to throw out the filmmaker's 1977 child sex case, citing what he called an "astonishing record of misconduct" by the district attorney's office and the judge who originally handled the case.

”Chad S. Hummel argued that Judge Laurence J. Rittenband improperly discussed with a prosecutor how to punish Polanski and threatened to lock up the director for a longer period if his attorney challenged the judge's decision to return Polanski to prison.”"

""It sends chills up your spine what this judge was doing," Hummel told the three appellate court justices in downtown Los Angeles.”"

The court of appeal is not expected to decide the issue of whether Polanski's case should be dumped, but only whether Judge Espinoza erred when he found earlier this year that a long line of prior appeal cases prevent a fugitive defendant from challenging their criminal cases until they surrender.

Up until now the universally applied rule is that fugitive criminal defendants have no standing to appeal their convictions, which appeals have been routinely dismissed in such circumstances.

By law the court of appeal’s decision must issue within 90 days.

Meanwhile, Polanski (as with other high-profile fugitives only recently arrested after decades of flight—think Susan Olsen)—now faces a much harsher sentencing environment and political mood toward most crimes. Especially crimes of “indiscretion” involving teen girls, no matter how “experienced” the girl was at the time, or how forgiving the victim has become in her adult years.

Stay tuned folks. It’s goanna get interesting.

ABOVE THE LAW BOG’S EDGY APPEAL THREATENED BY BEAN COUNTERS

We stumbled upon this ABA Journal article presaging a possi
ble shake-up at the ground-breaking Above the Law blog.

ATL owes its caché and readership to David Lat--who has a golden history of creating , and nurturing a loyal blog readership (e.g., Beneath their Robes, Wonkette--forgive me, the three most successful niche blogs in the history of the non-Bosnian world).

That said, David Lat is above all a creative force who delivers page views by the zillions when left to his edgy best.

If anything, it has been the corporate interference of the present ownership group that has suppressed Lat’s (and therefore its portfolio of blog’s) edgy appeal.

We have no doubt that whatever David Lat is at once a brand and a creative force, and that wherever he winds up he will be on the cutting edge.

But bean counters have no place in a business model founded on edgy creativity.

And that is the ‘bottom line’.

Above the Law Gets New Management; Readers Wonder about Lat, Mystal (ABA J.)

500 POUND DEFROCKED VEGAS JUDGE HIT WITH $50,000 LIBEL JUDGMENT

Long time readers of this blog will surely remember Las Vegas Judge Elizabeth Halverson—who was removed from the bench following a long soap opera consisting of allegations that she made her bailiff rub her feet, and other petty abuses of power (in addition to dining with jurors and falling asleep on the bench).

To browse the many highly amusing Halverson related posts on this blog, see here. (Scroll down.)

And now this from Above the Law:

"A one-time legal assistant to ousted District Judge Elizabeth Halverson won a $50,000 judgment Tuesday in the defamation case she filed against Halverson in 2007. District Judge David Wall on Tuesday ordered Halverson to pay the money and to return files to the assistant, Ileen Spoor….

"Wall denied Spoor’s claim for $100,000 in punitive damages. Halverson did not attend the proceedings."

For our prior coverage of the Spoor vs. Halverson libel suit, see here (think Alien vs. Predator).