03/18/2010 05:12 am ET | Updated May 25, 2011

Polanski Lawyer Says Client Will Face Only One Charge if He Returns to LA

"Fundamental fairness and justice in our criminal justice system are far more important than the conviction and sentence of any one individual." - California Court of Appeal, Polanski v. Superior Court of Los Angeles County, 12/21/09

Demonstrating the same lack of self-esteem as prisoners who beat up child molesters, noisy segments of the American population continue to hyperventilate over Roman Polanski as if the sexual abuse of minors were not already sufficiently condemned by our society. Among those who believe there is compelling evidence Polanski committed the various offenses (such as rape, sodomy and furnishing a minor with drugs) he was initially charged with, few express criticism of the Los Angeles County District Attorney's Office for its decision not to prosecute the defendant for those alleged crimes. Instead, the mob irrationally directs its wrath almost exclusively at Polanski, even though he has no control over what DA Steve Cooley does. But no matter how terrible a person he might be, it is not Polanski's fault he can't be punished for what Cooley and his predecessors have chosen not to pursue.

The offense for which Polanski's extradition from Switzerland is sought is barely considered a crime in Europe, where the age of consent is as low as 13. Polanski's French attorney, Georges Kiejman, told me: "I can confirm that the request of taking him into preventive custody only concerns the charge of unlawful sexual intercourse." That's a key point, because the extradition treaty between Switzerland and the United States stipulates "a person who has been extradited shall not be detained, proceeded against, or sentenced for any offense committed prior to surrender other than that for which extradition has been granted...unless...the competent authorities of Switzerland consent."

Therefore, Polanski is not likely to be charged for having fled 32 years ago when he became alarmed by apparent judicial misconduct now accepted as virtual fact. However, if Polanski returns to the United States, 45 days after he becomes a free man here, the treaty would no longer bar American authorities from prosecuting the filmmaker for any chargeable offense he might have committed before (or after) his extradition.

If Polanski could be nailed for nothing else, would Cooley actually try to hold Polanski accountable for the defendant's 1977 failure to appear (punishable by a year in prison, a $10,000 fine, or both)? That's hard to predict, as the DA has recently refused to comment on the case after he foolishly boasted to a reporter, "The plea is airtight." Soon thereafter, Cooley was informed the plea could actually be withdrawn since Polanski apparently didn't understand the potential consequences of pleading guilty when he did so. As I previously reported, Polanski testified that he believed the maximum sentence he faced was 20 years, even though it was really 50, and nobody corrected him at any point in the plea hearing.

Just a few months ago, the 8th Circuit Court of Appeals, in United States of America v. Edward L. Gray, ruled in favor of Gray, who argued his guilty plea should be withdrawn because a lower court had failed to inform him what punishment he was facing.

Peter Espinoza, the judge who is currently handling the Polanski case, has the authority to withdraw the Court's approval of the defendant's guilty plea whether or not Polanski requests or even wants him to do so. Which is not to say a plea withdrawal wouldn't benefit Polanski. It would, and it would be a huge setback for Cooley, because it would leave the DA with only two options - drop the case altogether, or get busy preparing for a trial - neither of which would expose Polanski to any punishment beyond the sentence he might now receive as a result of his guilty plea.

Regardless of how one feels about Polanski or his confessed/alleged crimes, guilt or innocence should be determined by actual evidence, not mere perception. Despite Samantha Geimer's grand jury testimony, Polanski denies he committed any crime except unlawful sexual intercourse, and the public isn't privy to enough information to decide whose story should be believed. Neither the medical report nor eyewitnesses indicate forcible sex occurred, and it's not insensitive or unfair to recognize that victims and alleged victims sometimes lie, misremember or miscommunicate.

Just because a lot of pathetic people need to dwell on the director's supposed indecency to make themselves feel decent in comparison, doesn't mean that normal evidentiary standards should be abandoned in the Polanski matter. Unlike certain judges and prosecutors, Polanski nowadays poses no threat to anybody.