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.
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