By David Coleman
Should a crime be viewed through a lens adjusted to the era during which the crime was committed—or viewed through a lens conformed to a later time, after social values and laws have changed?
This seems like an easy question to answer when the adjustment in the view of the crime’s seriousness is downward.
Take, for example, marijuana. Thirty years ago, possession of marijuana in California was punishable by a sentence to state prison. That was a sentence sometimes—even if infrequently—imposed. People who possessed marijuana for personal use in the ’70s were sent off to prison to serve “hard time” in comparison to a probationary, local county jail sentence.
Today, of course, one cannot be sentenced to prison in California for possessing marijuana for personal use. Indeed, since the passage of Proposition 36, a marijuana user cannot be sentenced to a day in jail. A fine of $100 is the maximum punishment. And if enough voters in California express a preference in November to legalize possession of marijuana, no punishment whatsoever will be exacted.
Now, test your opinion about bringing Roman Polanski to further justice with this mind experiment: Imagine that his doppelganger, let’s call him Truman Polanski, was arrested and an old, outstanding arrest warrant was found. Lo and behold, assume it was discovered that Truman had not served his prison sentence for a conviction of marijuana possession imposed 40 years ago!
Would the public, would the Los Angeles district attorney, would conservative law-and-order advocates argue that Truman Polanski should serve a prison term for the drug crime he committed—but has not as yet been punished for—under the law as it existed in 1978?
I think you know what the answer would be. And that answer frames the Polanski sentencing problem.
The 34-year-old lens through which we view Roman Polanski’s crime is clouded because society’s viewpoint about his “sex crime” has swung in the opposite direction from that of a drug crime. Standards for evaluating whether sex occurred consensually have evolved in the past four decades on campus, in the workplace and in the law.
Even the language employed to discuss serious crime has changed. Despite the fact that the same office he now heads agreed to a plea of a charge of having underage sex, or statutory rape as it was then called, Los Angeles District Attorney Steve Cooley now describes the case as one where, “Mr. Polanski [was] … convicted of serious child sex charges.”
Really, Mr. Cooley? That does not appear to have been the view of your office in 1978. The Los Angeles district attorney’s office agreed to a plea deal then that probably would result in a probationary sentence for what Cooley now calls a “serious child sex” offense.
The facts of the case haven’t changed. But attitudes, language and the politics of crime have escalated quite drastically when a sexual offense is involved. Thus, the question remains: If society’s view of the crime changes, should the offender be punished under the new, more condemning view or the more tolerant one prevalent at the time of the crime?
What would have happened in 1978 in adjudication of Polanski’s case?
I was a new deputy public defender in a Northern California county in 1978 when Polanski was charged. I have recently read the police reports, including that of a Sgt. Phillip VanAtter, who was last heard from as the investigating detective in the O.J. Simpson case and who, Zelig-like, seems to crop up in every notorious West Los Angeles crime investigation.
On the one hand, based on the facts from that investigation that the prosecutor could prove beyond a reasonable doubt, sex with an underage girl (aka statutory rape) would have been a slam dunk. On the other hand, what about sex with a precocious teenager in Jack Nicholson’s hot tub when the girl’s mother had encouraged Polanski to use her daughter for a risqué photo shoot? Based on any theory of criminal liability—other than that it was a crime to have sex with a girl of her age—it was far from a slam dunk. A trial would have produced the exact outcome the DA obtained by agreement: a conviction on the underage sex charge and nothing more. Everyone, including the DA and the judge, would have shared that opinion.
What role did Polanski’s celebrity play then?
An indigent public defender client with no sex offense record would most likely not have been sent to prison on an underage sex conviction plea in 1978. Need I say that an award-winning Hollywood director—who barely escaped the Holocaust and whose pregnant wife, Sharon Tate, was slain in the Hollywood Hills by the Manson family—is far from the profile of a defendant who would have been sent to prison in 1978 for the crime of statutory rape?
Based on 35 years of experience as a California criminal defense attorney, my professionally educated guess is that the agreement between the judge, the deputy DA and defense counsel for Polanski was that he was only going to prison for a 90-day diagnostic observation period. In that era, the 90-day diagnostic was used by judges (and acceded to by prosecution and defense) to give a defendant a two-to-three-month “taste of steel,” in the criminal justice argot of the day.
But all criminal justice lawyers and judges knew that a more important reason for such a sentencing step was to convey to the public (and the defendant to some degree) that a prison sentence might be imposed. The strong expectation of all involved was usually that in 90 days, upon returning to court, the defendant’s real sentence would be a shorter county jail sentence with credit for the time served in custody during the diagnostic observation period.
Polanski’s lawyer had the resources to propose a “local diagnostic” carried out by doctors and experts in Los Angeles while he remained free. That step could have been taken—in lieu of shunting him off to prison—if there was really any need was for diagnostic, psychological review to justify (i.e. furnish “expert” cover for) not punishing Polanski as a potentially recidivist sex offender. But it wasn’t. No new information or insight was expected. Unsurprisingly, none materialized during the prison observation period.
The real need was for it to appear to the public that the judge and the DA were dealing sternly with Polanski. Undoubtedly, Polanski’s counsel told him—and he had every right to believe—that the 90-day diagnostic was almost certainly for appearances’ sake and he would most likely receive credit for the time it took, combined with a sentence of probation after the diagnostic period in prison custody ended. If that was not the expectation of Polanski and his attorney, there was little reason for him to have agreed to the guilty plea to statutory rape he entered.
Having fled, does Polanski deserve the benefit of that retro sentence?
This is a different question. This question is whether the act of fleeing itself should be punished.
If it should be punished, it should (and could) be charged as a distinct and different crime from the underage sex charge. The L.A. district attorney or federal authorities can prosecute Polanski for this separate crime of failing to appear or other crimes relating to persons who flee the jurisdiction of state or federal authorities.
But the offense of fleeing should not be conflated with the cries for Polanski’s scalp that emanate from the victim’s rights advocates and from those groups that advocate harsher treatment for any offender who commits an offense related to sex. Despite their purported victim-centric viewpoint, they overlook the inconvenient truth that the “victim” in the Polanski case does not wish to be dragged into an advocacy group’s agenda. When a convicted offender flees the jurisdiction, the “victim” is the state.
That, to be sure, is not the victim they have in mind.
The renewed focus on Roman Polanski’s immorality and karma also ought not obscure something about this case that may be fishy in California’s system of justice.
The smell may have reached Switzerland, reading between the lines of news reports of the decision.
Over the past three decades, pursuit of the extradition of Roman Polanski by the Los Angeles district attorney could at best be described as fitful. Predecessors of the current district attorney seemed to have taken the case somewhat less seriously, an observation quite apparent to the Swiss decision-makers. Whether Mr. Cooley’s imminent run as the Republican candidate for California attorney general is a factor is something that only Cooley and his staff would know. If it is, they are unlikely to say so.
Despite today’s fulminations by the L.A. district attorney and the U.S. State Department, the behavior of both prosecutors and of a now deceased judge of the Superior Court of Los Angeles has created questions about the administration of justice. There has been no coherent explanation by a series of deputy district attorneys associated with the case in 1978 about what was said privately (or not said) to the judge who would sentence Polanski. Those questions should have been resolved years ago. Or better yet, they should have never arisen in the first place.
The need for justice to be administered equally and transparently has not changed with the times. In 1978, or now, the behavior and contradictory statements of many of the public officials involved in the adjudication of Polanski’s case created questions other than the ones about the prurient Polanski behavior upon which the public and the media are fixated.
Those questions are sleeping dogs. Prosecutors and judges in the courts of Los Angeles County may take some solace from the decision not to extradite Polanski. Switzerland—the home of the St. Bernard—has given those officials room to let those dogs lie.
AP / Franka Bruns
No more chalet arrest: Director Roman Polanski waves during a media event in Berlin in October 2006.