9-15.620 Extradition From a Third Country

If the fugitive travels outside the country from which he or she is not extraditable, it may be possible to request his or her extradition from another country. This method is often used for fugitives who are citizens in their country of refuge. Some countries, however, will not permit extradition if the defendant has been lured into their territory. Such ruses may also cause foreign relations problems with both the countries from which and to which the lure takes place. Prosecutors must notify the Office of International Affairs before pursuing any scenario involving an undercover or other operation to lure a fugitive into a country for law enforcement purposes (extradition, deportation, prosecution).

9-15.630 Lures

A lure involves using a subterfuge to entice a criminal defendant to leave a foreign country so that he or she can be arrested in the United States, in international waters or airspace, or in a third country for subsequent extradition, expulsion, or deportation to the United States. Lures can be complicated schemes or they can be as simple as inviting a fugitive by telephone to a party in the United States.

As noted above, some countries will not extradite a person to the United States if the person's presence in that country was obtained through the use of a lure or other ruse. In addition, some countries may view a lure of a person from its territory as an infringement on its sovereignty. Consequently, a prosecutor must consult with the Office of International Affairs before undertaking a lure to the United States or a third country.

So, was Polanski lured to Switzerland through the film award invitation? Possibly, if the Swiss Government was involved in the Zurich Film Festival. Unfortunately for Polanski, the U.S. Attorney's Manual is not binding on the courts. But if so, this extradition request is even more objectionable.

It was not the LA District Attorney's office that set this in motion. It was the Department of Justice's Office of International Affairs:

Acting either directly or through the Department of State, OIA initiates all requests for provisional arrest of fugitives pursuant to extradition treaties. Neither prosecutors nor agents are permitted to contact their foreign counterparts to request the arrest of a fugitive for extradition. Unauthorized requests cause serious diplomatic difficulties and may subject the requester to financial liability or other sanctions.

To debunk another frequently reported statement: Despite the fact that Polanski pleaded guilty, according to law, he has not been convicted because sentence wasn't imposed:

If the defendant fled after the verdict but before sentencing, he or she has not been convicted, and the prosecutor must supply the affidavits described in this Manual at 608, unless the treaty specifically equates conviction with a finding of guilt.

Since Polanski was not convicted, the U.S. has to supply an affidavit establishing the commission of the offense. That means not just probable cause, but a prima facie case.

However, in the United Kingdom, Canada, and most other common law countries, the documents in support of extradition must establish a prima facie case. A prima facie case is established when the evidence submitted to the foreign magistrate would, if standing alone, justify a properly instructed jury in returning a verdict of guilty. Further, those countries, the United Kingdom, Canada, and other common law countries, do not accept hearsay in affidavits submitted in support of requests for extradition.

....Each affiant should state clearly and concisely the relevant facts, avoiding hearsay if possible.

Grand jury transcripts are not favored for establishing the crime:

Grand Jury Transcripts. A second, less-preferred means of establishing the crime involves attaching copies of grand jury transcripts to the prosecutor's affidavit. This method causes problems because some countries refuse to accept grand jury transcripts or may require an affidavit by the witness adopting them as true in the present time; they tend to be less concise than affidavits (resulting in higher translation costs); they are not accorded the same weight as affidavits in some countries;

Then there's the Rule of Specialty under which Polanski can only be prosecuted or punished in the U.S. for the crime for which extradition was sought. I assume that's unlawful sexual intercourse with a person under 18 -- not rape or the other crimes with which he was originally charged:

Every extradition treaty limits extradition to certain offenses. As a corollary, all extradition treaties restrict prosecution or punishment of the fugitive to the offense for which extradition was granted unless (1) the offense was committed after the fugitive's extradition or (2) the fugitive remains in the jurisdiction after expiration of a "reasonable time" (generally specified in the extradition treaty itself) following completion of his punishment. This limitation is referred to as the Rule of Specialty. Prosecutors who wish to proceed against an extradited person on charges other than those for which extradition was granted must contact the Office of International Affairs (OIA) for guidance regarding the availability of a waiver of the Rule by the sending State.

It seems to me Polanski has an argument he was lured to Switzerland which would violate DOJ policy. And, it's possible the only valid extradition request would be one for the offense to which he pleaded guilty -- unlawful sexual intercourse with a person under 18, unless they have presented "a prima facie case" consisting of more than hearsay and the accuser's grand jury testimony. I'm assuming that's a crime in Switzerland, because if it isn't, it wouldn't be an extraditable offense.

I think I'll search out the treaty between the U.S. and Switzerland and answer some of my own questions. If you have others, feel free to add them. Keep in mind this post is speculation, since I haven't seen the actual extradition request specifying the offense for which extradition is being sought, the supporting documents, the US-Swiss treaty or documents setting forth the connection between the Swiss Government and the Festival (although I think it's the Ministry of Cultural Affairs.)