Polanski Guilty Plea Could Be Withdrawn
Wed, Dec 9, 2009 by Jeff Norman
When Emily Bazelon of Slate.com recently asked Los Angeles County District Attorney Steve Cooley about the Roman Polanski case, “Cooley’s deputy tried to shush him.” But the DA was apparently in no mood to remain silent.
According to Bazelon: “Cooley wanted to hammer home the simple point that Polanski cannot escape the guilty plea he made 30 years ago. ‘The plea is airtight,’ he said. ‘The plea is the Bible.’”
Cooley was referring to Polanski’s decision to plead guilty in 1977 to the charge of unlawful sexual intercourse. Roger Gunson, the DA at the time, had agreed to drop the other charges - including rape and sodomy - Polanski was facing, in exchange for his plea.
Testifying under oath at his plea hearing, Polanski answered a series of questions designed to ensure he had been adequately counseled, and confirm he understood the potential consequences of his plea. As with any such hearing, one of the most important questions concerned how many years Polanski might spend behind bars as a result of pleading guilty. From the plea transcript:
MR. GUNSON: What is the maximum sentence for unlawful sexual intercourse?
THE DEFENDANT: It’s one to fifteen - - twenty years in State Prison.
Even though Polanski actually could have been sentenced to as many as 50 years for pleading guilty to unlawful sexual intercourse, nobody at the hearing corrected him.
Likewise, in the ensuing 32 years since Polanski pleaded guilty, nobody - until now - has publicly noted the obvious discrepancy between the maximum sentence for Polanski’s admitted crime, and what the filmmaker said he believed it was.
Loyola Law School Professor Laurie Levenson confirmed Polanski’s maximum sentence was indeed 50 years, and nobody disputes it. In “Roman Polanski: Wanted and Desired,” an HBO documentary about the case, Gunson acknowledged the judge’s sentence was unpredictable. “I’m not surprised,” he said, “that [Polanski] left the country under those circumstances.”
Furthermore, the plea testimony indicates no deal promising a light sentence had been struck:
MR. GUNSON: Do you understand that at this time, the Court has not made any decision as to what sentence you will receive?
THE DEFENDANT: (No response.)
MR. GUNSON: Do you understand that the Judge has not made any decision?
THE DEFENDANT: Yes.
The prosecutor addressed the same issue with Polanski’s attorney:
MR. GUNSON: Are you aware of any promises that have been made to your client, that have not been stated on the record and in open court today?
MR. DALTON: No.
In a future post, I’ll explore why the 30-year discrepancy has not heretofore been recognized. For now, it’s important to understand why it matters that Polanski believed the maximum sentence was only 20 years when it was really 50.
According to the decision in a 1985 Supreme Court case called Hill v. Lockhart, a defendant’s plea may be withdrawn if “counsel’s representation fell below an objective standard of reasonableness, and…there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty, and would have insisted on going to trial.”
Anybody who thinks there’s no significant difference between a 20-year and 50-year prison confinement, probably isn’t anyone who’s ever been, or is likely to be, imprisoned. But I think it’s safe to assume three decades means a lot to an individual who’ll actually be deprived of liberty after having been convicted of a serious crime. So it would be plausible for Polanski to claim he would have elected to go to trial if he knew his maximum sentence for pleading guilty was 50 years.
Moreover, it seems the apparent failure to let Polanski know what punishment he might have been forced to endure, establishes that “counsel’s representation fell below an objective standard of reasonableness.”
Former federal prosecutor Harry Litman explained, “It’s fundamental that the defendant needs to understand what sentence he might be facing in order to make a knowing plea, and in the federal system the law is very clear that the judge can’t accept a plea in the first place unless she informs the defendant, and determines that the defendant understands, what the maximum possible penalty is. If the record shows Polanski thought he was facing a much lower maximum sentence at the time of the plea, that’s a very strong argument for permitting him to withdraw the plea now, though it’s not clear whether withdrawing the plea would do much for him at this point.”
Stanford Law School Professor Jeffrey Fisher added, “It’s a well settled rule that a judge must make sure the defendant knows his rights and understands the crime he’s pleading guilty to, as well as the punishment he’s exposing himself to, by pleading guilty.”
Under California law, a plea may be withdrawn “at any time before judgment…for a good cause shown…” Levenson told me, “There is no formal judgment until sentencing.” Polanski has not been sentenced.
I asked Cooley if the defendant’s mistaken belief he could be imprisoned for no more than 20 years, might entitle him to now withdraw his plea. Through his spokesperson, the man who a short time ago boasted Polanski’s plea is “airtight,” issued this statement:
“While the Polanski extradition is pending before the Swiss courts, the Los Angeles County District Attorney’s Office will have no out-of-court comment on the case.”
Whether or not it would behoove Polanski to withdraw his plea, Cooley, an elected official, should explain to the public why the DA’s office should have accepted it in the first place, or concede the plea should not have been accepted.
This article was also published by The Huffington Post and The Public Record.
December 29th, 2009 at 11:33 am
Jeff writes:
Gunson acknowledged the judge’s sentence was unpredictable. “I’m not surprised,” he said, “that [Polanski] left the country under those circumstances.”
Gunson may be surprised but that doesn’t justify Polanski fleeing. A commenter on one of the Polanski blogs on the HuffingtonPost suggests that the suggestion of a possible 50-year sentence constituted “duress” which can, in certain circumstances, be a valid defense for breaking the law (ie fleeing jurisdiction).
Here is what Wiki tells us, in part, about “duress”:
In order for duress to qualify as a defense, four requirements must be met:
- Threat must be of serious bodily harm or death
- Harm threatened must be greater than the harm caused by the crime
- Threat must be immediate and inescapable
- The defendant must have become involved in the situation through no fault of his or her own
Perhaps Jeff can inquire of his legal contacts above whether Polanski’s fleeing constitutes duress.
December 29th, 2009 at 12:41 pm
Tony, I’m not sure there’s much of a reason to analyze the duress theory at this point. If Polanski uses such a defense, I suspect it will be supported with something more than the Wikipedia definition you cite.
May 10th, 2010 at 12:30 pm
re: Polanski causa
I’m not familiar with California’s legal practices & penal code (261.5), statutes of limitation (801.1), and impact of Polanski’s fleeing the US before sentencing on the applicable statute of limitations (853.7). But from readings publicly accessible from here, it looks that the 50 year maximum sentence would only have applied if no plea bargaining had occurred which I understand to be binding on all parties involved. At any rate, I’d be interested to find out urgently what legal grounds, if any, there are for the California authorities to claim that the applicable statutes of limitation have either been interrupted or have still not been terminated.
I’m the assistant to Swiss lawmakers who, with parliamentary motions, have politically intervened in the Polanski case and who introduced an amicus curiae (http://www.solami.com/polanskiac.htm). This is going on parallel to Polanski’s legal team in Switzerland and the US, with knowledge of Mr.Polanski but - also in order to retain our independence and preserve our political credibility and effectiveness - without a mandate from him, and on a pro bono basis.
I thus submit to you and your audience the following questions:
1. What were the precise terms of art.261.5 at the time of Polanski’s alleged rape of a minor in March 1977 ?
2. What, if any, statute of limitations applied then to said negotiated charge of “unlawful sexual intercourse” (261.5)?
3. In the event, does this statute of limitations apply in all cases or only as long as formal sentencing has not taken place and formal judgement pronounced?
The requested information is urgently needed because
1. the Swiss government’s extradition decision is imminent (probably in the next 10 days);
2. the US/Swiss extradition treaty of Nov 14, 1990 (SR 0.353.933.6) came in force on September 10, 1997, substituting the treaty of 1900; the latter reserved the national laws of both the requesting and the requested state also with regard to prescription of a crime (art.5), while the former (also art.5) stipulates the law of the requesting state to apply with regard to whether or not a crime is prescribed and thus no longer extradable - an apparent oversight and genuine gap in this treaty;
3. the responsible Swiss authorities have shown what many see as excessive zeal in handling this case, even before Polanski arrived in Zurich where he was arrested on September 26, 2009; the name of the unfolding game thus is likely: seeking to hide or at least not be obliged to admit past political and juridical errors through strict - even if not in the national interest and/or not in line with treaty-reserved Swiss national law - observance of treaty wording; and
4. it may provide new legal arguments - which may also have escaped Mr.Polanski’s lawyers - in favor of exercising Swiss sovereignty rights to the effect of preventing the extradition of Mr.Polanski - without violating the extradition treaty in force, that is.
Thanks in advance for your consideration and prompt assistance. Salve!