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

Polanski Lawyers Cite Dying Witness as Reason to Hold Hearing Soon

At a public hearing yesterday in Los Angeles County Superior Court, Chad Hummel, the lead defense attorney in Roman Polanski's criminal matter, wanted it known that although he had recently asked for an in-chambers meeting to confer about one particular issue of "great sensitivity," he had never suggested anything else shouldn't be discussed in open court.

Judge Peter Espinoza didn't seem to regard the issue as all that sensitive when he nonchalantly revealed Hummel was alluding to a witness who soon might become unavailable to testify. Other than Espinoza suggesting the unnamed person's testimony could be recorded "for posterity," thus dismissing Hummel's claim an evidentiary hearing must be scheduled as soon as possible, nothing else was mentioned about the mystery witness before court was adjourned.

Later I spoke with Larry Silver, the attorney for Polanski's victim, Samantha Geimer, who confirmed the mystery witness is "gravely ill."

In general, Silver seems much more forthcoming than Hummel or Hummel's co-counsel, Douglas Dalton (Polanski's 1977 lawyer, still part of the team) and Bart Dalton (Douglas's son). Silver told Larry King in 2003 that Laurence Rittenband, the controversial, now-deceased judge who originally presided over the case, had reneged on a plea deal, and informed the lawyers he was going to give Polanski the maximum sentence:

"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...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 [sic], to say certain things the next day. Directed me to do things. This is unheard of."

Marcia Clark, best known for her unsuccessful prosecution of OJ Simpson, is another person who appreciates how the maximum sentence is a vital consideration for anyone who pleads guilty, and how important it is at a plea hearing to make sure a defendant understands the potential consequences he or she is facing. In a recent article she wrote for The Daily Beast, Clark said Polanski is a dead duck because of how explicitly he had been warned about all the time he could serve for his confessed crime.

Clark insisted Polanski "knew the sentence he was facing...Twenty years in prison--or zero...Polanski knew the entire range of sentences he faced...Few defendants were ever more thoroughly warned of the sentence they faced and the power of the judge to impose it as Roman Polanski."

That's some recognition! According to Clark, Polanski was one of the most well-informed defendants in the history of jurisprudence.

As anyone who peruses the transcript of Polanski's testimony can see, the questioning was indeed extensive and seemingly scrupulous. But Clark's reasoning is nonetheless flawed, because Polanski actually misstated what the maximum sentence was, and nobody in the courtroom mentioned it at any time during the plea hearing. Moreover, no attorney or judge who is or was connected with this never-ending case, has ever publicly acknowledged the glaring and major discrepancy between what Polanski believed he faced, and what he really faced.

When she thought it represented a nail in Polanski's coffin, Clark emphasized how exhaustively the defendant had been schooled about the duration of his confinement. Now that her misinterpretation has been disclosed, let's see how long it takes Ms. Marcia to issue a statement saying Polanski's guilty plea is invalid because he was not advised of his punishment. Doing so would pretty much kill the whole premise of her article, but if she already cashed Tina Brown's check, Clark needn't worry.

Because Papa Dalton is still on the case, Polanski's dream team might not be eager to call attention to the now elderly attorney's apparent failure to properly advise his client in 1977. But Silver told me he agrees the issue constitutes "possible grounds for withdrawing the plea."

As I'm not really sure whether it would help or hurt Polanski for his plea to be withdrawn, it was only in the interest of justice I passed a note to Judge Espinoza yesterday via the court clerk who later confirmed she gave it to him. Above my name and phone number I had written:

Judge Espinoza,

Polanski testified at his plea hearing that he believed the maximum sentence was 20 years, even though it was really 50 years, and nobody corrected him.

I leave it to you to judge the significance of this issue.

The issue is significant, which is why the Federal Rules of Criminal Procedure prohibit a judge from accepting a guilty plea without informing the defendant of the punishment he or she faces. Rule 11 states: "Before the court accepts a plea of guilty...the court must inform the defendant of...any maximum possible penalty, including imprisonment, fine, and term of supervised release."

Although Rule 11 applies to only federal courts, the same principle applies to all plea hearings in all courts. That is, the defendant must know what could happen as a result of pleading guilty.

It's only basic fairness, and the principle isn't normally open to question. But when it comes to Polanski, it somehow doesn't even exist.

Court opinions about the importance of verifying that a defendant understands the consequences of pleading guilty, can be viewed here and here.

Hummel yesterday handed the judge a letter from Polanski asking to be sentenced in absentia. A hearing on that request is scheduled for Jan. 22.

Will Judge Espinoza be the first jurist in over 32 years to affirm it matters that nobody said a word when Polanski testified, incorrectly, his maximum sentence was only 20 years?