The Defenses to the Polanski Arrest Are Irrelevant

One can certainly understand why friends and colleagues of Roman Polanski would be upset by his arrest and possible extradition after all of these years, but the opponents of his arrest have merged arguments against his extradition with those that should be made if and when he is extradited and faces a United States court.

We must start with the fact that he is guilty of a serious crime and is a fugitive. It is alleged that his motive for flight was because the presiding judge "reneged" on the plea bargain respecting his sentence and threatened to impose a longer sentenced than agreed. I do not know what happened here, but judges are not usually parties to plea agreements. I accepted pleas for 15 years, and in each and every instance, the defendant was advised that the court was not bound by any agreement and the sentence was in the sole discretion of the court. Pleas were then entered and accepted on that basis. My guess is that the judge here indicated informally that he was not going to follow the recommendation of the parties, and then Polanski skipped. Certainly this scenario is not a defense to extradition.

There is also a suggestion that there was some misconduct on the part of the judge in respect to the sentencing. That, of course, is a matter that could be presented to the court, although it is difficult to understand how it would affect a sentence that was not imposed or served. Polanski's lawyers attempted to present this claim of misconduct, but it was denied based upon Polanski's refusal to appear. The court concluded that he could not avail himself of the system while defying it. He can raise that claim by presenting himself to the court.

The extradition is also opposed by his supporters on the grounds of delay. At first blush this has a great deal of appeal, until the argument is examined. It would mean that the fugitive who is most successful in eluding capture gains an advantage over one who is less successful, which, in turn, would mean that the wealthier criminal would have a greater chance of avoiding extradition than the poorer one. I had a case in which a bank robber sued the FBI for injuries he sustained in a shoot-out, claiming that the FBI should have arrested him sooner and the injuries would have been avoided! The same argument is being made here -- that Polanski should have been arrested sooner, and since he was not, he can avoid extradition.

It is also pointed out that the victim does not wish the charges pursued. Here again, this is an argument to be made in respect to the future sentence, not the arrest and extradition. One can well understand her desire to put the matter to an end.

Polanski's supporters point to his great works over the years, the tragedies in his life and the lack of any subsequent wrongdoing. Likewise, all of these matters are appropriate considerations for sentencing or subsequent proceedings, but they cannot serve to dismiss the charges for which he has pleaded guilty and for which he is now a fugitive.

In today's New York Times, Robert Harris asks in an op-ed piece in respect to the proceedings against Polanski "So cui bono -- who benefits?" The answer is the judicial system. Roman Polanski committed a serious crime and then escaped punishment. Everything that he has done since that day is relevant in enhancing or reducing his punishment, but none of it warrants dismissal. To do otherwise would put things backwards -- it would reward the successful fugitive and punish the legal system.

Comments

[djcrsn]

wow--we agree on something,

[mikesw]

I appreciate your clarifications on this. I suspect you have served as a very fine judge.

There is one issue that those criticizing Polanski's arrest have pointed to which you haven't addressed: the conspirato­rial-sound­ing, but still interesting question of why now?

If I am not mistaken, some 40,000 convicts have been recently released from prison without having served their full sentence due to the California budget crisis. It would seem therefore that spending hundreds of thousands of dollars on one fugitive, who fled justice 30+ years ago and poses no threat to the people of California, is a curious priority.

While I entirely agree that the legal system involves the impartial application of specific procedures, to what extent does the discretion of the DA in setting prosecutorial priorities play a part in those procedures?

[Marcospinelli]

A study of the sentencing process and plea bargaining, specifically as it existed in Southern California in 1977, speaks directly to the myth about judges as mainstays of the sentencing process:

"[The] data and analyses contradict the traditional view of the judge as the chief decision-maker in the sentencing process. A more correct view apparently is that the judge is merely the main "broadcaster" of sentencing decisions reached by probation officers. One logical implication of the very high agreement between judges and probation officers is that one of these two categories of participants in the sentencing process is redundant. Since it is the probation officers who make the decisions and the judges who are paid farmore, it would seem that the judges are better candidates if the redundancy is to be eliminated."

Coincidentally, the study examined the Polanski case closely and comment about it: "[T]he judge gave a press conference in his chambers, an inter-view to People magazine, and generally seemed to respond to such an extent to the publicity aspects of the case and to the "hate mail" concerning Polanski he was receiving that both the defense attorney and the prosecutor requested that the case be taken away from this judge (the prosecutor was presumably motivated by the desire to avoid grounds for a successful appeal)."

[Marcospinelli]

This is what researchers studied and what they concluded:

In 1976 and 1977, there were more than 24,000 felony arrests in San Diego County. Of these, only about 20% reached the Superior Court. (The remaining cases were resolved by actions such as release by the police, dismissal in lower-court review, the prosecutor's refusal to file a felony complaint, or a misdemeanor conviction in a lower court.) Of the cases that did reach the Superior Court, 7.44% were dismissed by a judge, 1.22% acquitted by a jury, and 91.17% convicted. The vast majority of convictions were obtained through a plea of guilty (85.54% or a no-contest plea (6.12%); 8.15% were convicted as aresult of a trial (by a jury, 6.77%; or by a judge, 1.38%).

One consequence of the very high frequency of plea bargaining is that charges for which offenders are convicted often bear little resemblance to charges for which they were arrested. Another consequence is that in a typical case the sentencing judge has a very limited familiarity with the case (as there has been no trial). The sentencing hearing occurs several weeks after the defendant has been convicted of a felony.

[Marcospinelli]

In the meantime, a probation officer investigates the case and presents to the judge an 8—15-page report. The report typically contains a wealth of information, varying from the description of the crime, arrest, charges, and post arrest events (bail, plea-bargaining activity, etc.), to a summary of the interview with the defendant and information obtained from other sources (family members, employers, neighbors, psychologists), to an evaluation by the probation officer of the totality of the facts of the case.

The report, significantly, concludes with a detailed recommendation regarding the sentence to be imposed. Sentencing hearings themselves are typically very brief and consistof an informal discussion among the judge, the prosecutor, and the defense attorney (the defendant and the probation officer are also present, but rarely speak). Judges typically explain the sentence to the defendants, after insuring that the defendants understand their rights (especially when a plea of guilty is involved).

[JShankel]

Is there any way to double-fan someone? There should be.

[JShankel]

Thank you Judge Sarokin, for both your public service and your clarifying points on this case. So nice to have an adult with actual expertise in this conversation.

And thank you for weathering the coming storm of experts who will no doubt explain to you how you're wrong about the facts of the case, the nature of plea bargains, American jurisprudence and the semiotics of _Knife in the Water_.

[Jeff Norman - Huffpost Blogger]

Judge Sarokin, why do you agree with the ruling that Polanski is required to show up to make his argument about the plea agreement? Why shouldn’t his lawyers handle it?

Larry Silver, the girl’s lawyer who was in on all the discussions with the judge, told Larry King that a deal had been made to sentence Polanski to time already served.

Whether or not Polanski shows up or should show up, what do you think about what Silver says happened? It seems to me that if Polanski had been lured into pleading guilty only because the judge said he’d sentence him to time already served, the guilty plea shouldn’t stand. Is my logic flawed?

Here’s what Silver said:

http://transcripts.cnn.com/TRANSCRIPTS/0302/24/lkl.00.html
“Well, what the judge did was frankly outrageous. We had agreed to a plea bargain...And then frankly the day before he called us in the chambers and said he was getting a great deal of pressure and a great deal -- he was concerned about criticism of him in the press. And he was going to sentence Polanski rather than to time served, which is what we agreed to, to 50 years. That's a long -- big difference... And he told us other things. He directed Mr. Dalton, Polanski's lawyer, to say certain things during court. He directed the prosecutor, Mr. Guncin, to say certain things the next day. Directed me to do things. This is unheard of.”

[Judge H. Lee Sarokin - Huffpost Blogger]

Jeff Norman - I agree with the requirement that Polanski be present only because he is a fugitive. His presence obviously is not necessary for resolution of the motion, but the court ruled that in view of his fugitive status he could not avail himself of the process while flaunting it. If the scenario outlined by Mr. Silver is accurate (and I have no reason to doubt it) Polanski could have moved to vacate the plea, but he did not. He had a legal remedy but he chose not to utilize it. I am certain that there were other remedies available as well, i.e. such as a motion to recuse the judge, particularly in the face of such outrageous conduct as outlined by Mr. Silver.

[jackbutler5555]

His presence wasn't necessary. So, on what legal basis, do you reach the conclusion he ought to be there anyway? Or was this just personal?

[Jeff Norman - Huffpost Blogger]

Thank you for your response.

It seems the logic behind requiring Polanski to be present, is based solely on what the court believes the defendant deserves. But isn’t it in the interest of the public to get to the bottom of this situation, regardless of what Polanski deserves? Shouldn’t prosecutorial decisions and priorities be guided, at least partly, by what plea agreement was made, and by what the status of that agreement is now?

You say Polanski “could have moved to vacate the plea...” Does that mean he can no longer do so? If not, might he be able to accomplish the same thing by other means?

As the sole witness seems unwilling to cooperate, if the plea agreement is invalid, wouldn’t prosecutors be left with essentially nothing?

[lynnn]

Thanks for the logic, and the hard dis-passionate rationale.

[Judge H. Lee Sarokin - Huffpost Blogger]

lynnn - Thank you

[WiseLonghorn]

Awesome...

[Judge H. Lee Sarokin - Huffpost Blogger]

WiseLonghorn -Thanks

[DC]

Thank you Judge Sarokin for your rational consideration.

I hope you post here more often!

[Judge H. Lee Sarokin - Huffpost Blogger]

Thanks. I hope to do more. The encouragement helps.

[theaterdoc]

Thank you for a brilliant piece! You stated succinctly what has bothering me all along about the discourse surrounding the Polanski case: he cannot avail himself of the legal system while defying it. If he wants to contend there was judicial misconduct, he must appear in court and present his case. That strategy would legitimize his claim, in my view.

[Judge H. Lee Sarokin - Huffpost Blogger]

theaterdoc - Thanks. That issue is now on appeal but I think both you and the trial judge who refused to hear the motion were right. You cannot thumb your nose at the system and then asks for its help.

[jackbutler5555]

He didn't flee justice. He fled injustice.

[SaddieMcCall]

Thank you for your wise comments. It is very disturbing to me to see the flood of stories in the defense of Roman Polanski, with many rationizations as to why Polanski deserves to be set free. I also read this one, http://www.dailykos.com/storyonly/2009/10/1/788389/-Tragic-Lessons-Learned-from-the-Defense-of-Roman-Polanski which makes similar points as you did.

[Judge H. Lee Sarokin - Huffpost Blogger]

SaddieMcCall - Thank you

[annis]

Not "Sen. Lee" - I meant Judge Sarokin! (Don't know how that happened!)

[annis]

Really really good piece from Daily Kos.

And, thank you, Sen. Lee.

[strangelet]

As usual, you have a grip on reality. Why the heck did you leave the bench?

[Judge H. Lee Sarokin - Huffpost Blogger]

strangelet - Thanks for your kind comments. Leaving- Burn out. The volume made it almost impossible to deal with all of the cases in a thorough and fair manner.

[DMSmith]

There is one critical problem with the Judge's case put forth here: He very seriously mis-states what takes place with plea agreements. It is true, as he says, that the defendant testifies that he has not been offered any deals. It is also true that a judge will not say under oath that he's made a deal.
However, I've been there. I've been charged with a felony and been in chambers with a judge and my attorneys. Everyone was open about the fact that we were making an agreement about sentencing and verdict, and that we all knew that regardless of it being bunk, that we would testify under oath that there had been no deal. The testimony the judge refers to was an agreed-upon lie by all parties. It was obvious to me that this was how all cases are handled.
When that judge - who was about to run for office - notified my attorneys that he had decided not to honor the agreement I was jolted and shocked and scared to death of what might happen to me.
I understand why he might have fled. I have no judgement about his guilt or innocence but I understand how this situation may have made him fearful that he was not being treated fairly while on trial, and that he had to flea rather than be mistreated by the legal system.

[Judge H. Lee Sarokin - Huffpost Blogger]

DMSmith - I don't doubt that the scenario you have outlined happens often. The decision to flee may be understandable, but the motive cannot serve to wipe out the crime and the punishment for it. That's the question now: assuming his fear was justified, should that relieve him of appearing and answering to the charges---for which he pleaded guilty?

[DMSmith]

I fully agree, but I also think two important things are true.
1 - given this misconduct on the part of the court, he should not be punished seriously for fleeing a botched case.
2 - given this misconduct, can we trust that the entire case was handled properly. It should be at least reviewed for this reason, is not dropped.
Otherwise, you're right of course.
Misconduct on the part of a judge - even if common - should not be allowed in a case. Cases are often dropped for less than that.

[PWM]

One should keep in mind that a judge need not accept a plea bargain, but in that case a trial must be held unless the accused confesses.

[brodiesgirl]

I've posted the link here for clarification of the law and some facts to many more incendiary blogs -

Unfortunately, posted are happier arguing without facts or basic information

Thank you so much for both

[tigerlille]

Thank you, Judge Sarokin, for clarifying the legal aspects of this case. What a well written analysis. You are a breath of fresh air.

[Judge H. Lee Sarokin - Huffpost Blogger]

tigerlille - Thank you. I am certainly enjoying it and am thrilled at the thoughtful and respectful responses rather than what usually shows up in response to blogs