Switz. Receives Formal Extradition Papers From U.S.

By Jeralyn, Section Crime in the News
Posted on Fri Oct 23, 2009 at 10:23:43 AM EST
Tags: Roman Polanski (all tags)

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Switzerland announced last night on its website that it has received formal extradition papers from the U.S., seeking the return of Director Roman Polanski.

The US extradition request is based on a warrant issued by the Superior Court of the State of California for the County of Los Angeles on 1 February 1978, on which date Polanski had failed to appear before the judge as was required by his bail conditions. During the US criminal investigation, Polanski had admitted to having unlawful sexual intercourse with a minor. He is wanted by the US authorities with a view to passing sentence for this offence.

There will be a hearing at which Polanski's lawyers can submit argument. [More...]

In case extradition is considered to be admissible Polanski will have the option of appealing against the FOJ's decision before the Federal Criminal Court and the Federal Supreme Court as the court of last instance.

The process could take years, but Polanski would have to remain in jail if he doesn't get his bond ruling overturned.

The U.S. case is: Polanski v. Superior Court of Los Angeles County, B217290, California Court Appeals, 2nd Appellate District (Los Angeles).

His lawyers disagree on the best strategy for Polanski, with one thinking acceding to the extradition request is the best option, while another favors fighting it.

Here is the 1995 U.S. - Swiss Extradition Treaty. Here is the 1998 version, as amended.

The LA Times reports Switzerland says Polanski could receive two years in prison if he is returned.

Legal experts, however, said Polanski has options beyond begging for leniency. There are a number of legal maneuvers, such as withdrawing his guilty plea, that could result in the case being dropped entirely or in a sentence of no prison time.

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Switz. Receives Formal Extradition Papers From U.S. | 41 comments (41 topical)

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Two years? (none / 0) (#1)
by eric on Fri Oct 23, 2009 at 10:30:22 AM EST

I don't think they would limit themselves to that. I would put my money on the prosecutors making an example of him. If Polanski goes to California without a pre-arranged deal, he will be in for an elaborate show trial and he will be sent to prison for the rest of his life.

Not possible. Unless Polanski (5.00 / 1) (#2)
by oculus on Fri Oct 23, 2009 at 10:32:10 AM EST

moves to set aside his plea of guilty.


Why? (none / 0) (#4)
by eric on Fri Oct 23, 2009 at 10:41:53 AM EST

is there some cap of two years? The judge wasn't shy about rejecting the proposed deal the first time, what would stop a judge from giving him life?


The extradition papers (none / 0) (#5)
by Steve M on Fri Oct 23, 2009 at 10:44:34 AM EST

need to specify the offense. If the papers only identify the lesser offense that he already pleaded guilty to, then the plea bargain effectively becomes binding.

If California had any interest in trying him on the original rape charges, they would have to say so in the extradition papers, and the maximum penalty would obviously be more than two years.


True. But, even so, only Polanski can (none / 0) (#6)
by oculus on Fri Oct 23, 2009 at 10:46:07 AM EST

move to set aside his plea. Not the DA's office.


Hold on here (none / 0) (#8)
by eric on Fri Oct 23, 2009 at 10:56:10 AM EST

Are you guys telling me that all these years later the State is only seeking a maximum of two years and would still honor the plea bargain? Didn't the fact that he fled to Europe change things? Can't they nullify the deal? Furthermore, they aren't going to charge him for fleeing?

I know that here, in Minnesota, if one were to take a plea and then take off before sentencing, there is a good chance that the plea would be off.


According to Bloomberg, the Swiss (none / 0) (#9)
by oculus on Fri Oct 23, 2009 at 11:01:47 AM EST

spokesperson stated Polanski can only be "tried" on the crime for which he is extradited, i.e., PC 261.5, which has a max. prison term of 2 years, per the extradition docs. filed by LA Co. DA's office. Not sure what will become of the failure to appear, but max sentence on that is probably also two years or, at most, three. Could be consecutive to sentence on 261.5, but not at full term.


As I recall (none / 0) (#10)
by Steve M on Fri Oct 23, 2009 at 11:04:31 AM EST

no one has ever provided an explanation of why Polanski was never charged with a separate crime for fleeing the jurisdiction, but whatever the reason, it seems to be true.

I might be in disagreement with oculus in that I find it hard to believe the DA is still bound to the deal even after the guy's been a fugitive for decades. But they seem to be agreeing to honor it, whether they're bound to or not.


Change of plea transcript states no (none / 0) (#12)
by oculus on Fri Oct 23, 2009 at 11:08:19 AM EST

agreement re sentencing. So no "deal" there. IMO all sentencing options are open at this point.


Yes (none / 0) (#15)
by Steve M on Fri Oct 23, 2009 at 11:11:15 AM EST

but they are still limited to pursuing only the statutory rape charge, if that's what they sought extradition on. That element of the deal is what they're stuck with.


it's not statutory rape (5.00 / 1) (#33)
by Jeralyn on Fri Oct 23, 2009 at 01:11:59 PM EST

It's sexual intercourse with someone under 18 who is not your wife. He didn't plead to rape, the rape count was dismissed.


I am not sure (none / 0) (#35)
by Steve M on Fri Oct 23, 2009 at 01:59:00 PM EST

why the renaming of the offense has significance, but the California courts refer to it as statutory rape all the time. It's certainly not an offense separate and apart from statutory rape.


Wrong, the law was amended in 1970 (5.00 / 1) (#37)
by Jeralyn on Fri Oct 23, 2009 at 02:23:53 PM EST

to separate statutory rape from unlawful intercourse with a minor, expressly recognizing that a minor could consent to intercourse and it wouldn't be rape.

Before 1970, rape was defined to include "an act of sexual intercourse
accomplished with a female not the wife of the perpetrator, . . . [¶] (1) where the
female is under the age of 18 years; . . ." (Stats. 1913, ch. 122, § 1, p. 212.) Thus,
a minor who voluntarily engaged in sexual intercourse with an adult was deemed
unable to give legal consent to such an act, and actual consent was no defense to
rape or related crimes.
In 1970, the Legislature enacted section 261.5, which defines the crime of unlawful sexual intercourse with an individual under the age of 18 years. (Stats.1970, ch. 1301, § 2, p. 2406.)
At the same time it enacted section 261.5, the
Legislature amended section 261 to eliminate from the definition of rape an act of sexual intercourse with an individual less than 18 years of age. (Stats. 1970, ch.1301, § 1, p. 2405.)
Under the amended statutory scheme, all sexual intercourse with a minor is unlawful pursuant to section 261.5, but such intercourse does not
constitute rape pursuant to section 261 unless it is accomplished under the circumstances specified therein.

: Okay, well (none / 0) (#38)
by Steve M on Fri Oct 23, 2009 at 03:34:47 PM EST

I really don't think the term was used improperly here, as demonstrated by the following cases:
M. v. Superior Court, 450 U.S. 464, 494 (1981) ("Until very recently, no California court or commentator had suggested that the purpose of California's statutory rape law was to protect young women from the risk of pregnancy. Indeed, the historical development of § 261.5 demonstrates that the law was initially enacted on the premise that young women, in contrast to young men, were to be deemed legally incapable of consenting to an act of sexual intercourse.")
People v. Osband, 13 Cal. 4th 622, 734 (1996) ("'Statutory rape' is commonly understood to be the offense of unlawful sexual intercourse with a minor (§ 261.5), and we believe that the jury would so understand the term.")
Adoption of Michael H., 10 Cal. 4th 1043, 1067 (1995) ("Because our law deems unlawful sex with a minor to be 'nonconsensual' (see Pen. Code, § 261.5 [defining statutory rape])...")
In re Reed, 33 Cal. 3d 914, 919 (1983) ("On the other hand, sex-related crimes for which registration is not required include: section 311.4 (child pornography); section 261.5 (statutory rape); section 281 (bigamy)...")
M. v. Superior Court of Sonoma County, 25 Cal. 3d 608, 617 (1979) ("Neither the Attorney General nor the majority offer any support for their theory that the prevention of pregnancy is or even was among the purposes of section 261.5, and both the history and wording of the statute lead to a contrary conclusion. As presently codified the section proscribes the conduct commonly referred to as statutory rape.")
People v. Atchison, 22 Cal. 3d 181, 184 (1978) ("In one sense, it is incorrect to state sections 261.5 (statutory rape) and 288 are based on different public policies...")

No title on 261.5, but text includes phrase (none / 0) (#36)
by oculus on Fri Oct 23, 2009 at 02:08:13 PM EST

"unlawful sexual intercourse."


lawyer talk (none / 0) (#40)
by diogenes on Fri Oct 23, 2009 at 08:49:13 PM EST

Do you think that he forcibly raped the 13 year old, notwithstanding the plea deal? The victim gave clear statements; victims often agree to plea deals to keep from being dragged through court, but that does not diminish the moral culpability of Polanski even if the justice system in it's wisdom hands him a lesser charge.


Don't know the answer. Apparently (none / 0) (#20)
by oculus on Fri Oct 23, 2009 at 11:17:02 AM EST

court issued a warrant for failure to appear at sentencing hrg. But it doesn't appear DA's office ever filed a complaint as to that FTA. I guess the court could punish Polanski for contempt of court.


That is the part (none / 0) (#21)
by eric on Fri Oct 23, 2009 at 11:22:31 AM EST

that is scary. Once the TV news trucks line up outside the courthouse and people find out that this judge is only going to give this horrible rapist two years, all bets are off. Next thing you know, there are new charges, new penalties, book deals for the prosecutors, a judge giving interviews to the media, and Polanski gets screwed.


Well, the max on 261.6 is 2 years. (none / 0) (#30)
by oculus on Fri Oct 23, 2009 at 11:51:09 AM EST

Maybe a lynching?


: 261.5 (none / 0) (#31)
by oculus on Fri Oct 23, 2009 at 11:54:18 AM EST

So instead of doing an (none / 0) (#22)
by MO Blue on Fri Oct 23, 2009 at 11:27:17 AM EST

additional 48 days back in 1978, Polanski could now do 2 or 3 years. Hmm, not a good decision IMO.


Just asked my wife (none / 0) (#17)
by eric on Fri Oct 23, 2009 at 11:13:25 AM EST

who practices the criminal law and she thinks that since the plea was accepted, the best the state can get is the maximum. Sure, the prosecutor can refuse to honor any "deal" for less than that, but once the plea is entered and accepted, it sticks. It is pretty much a straight plea at this point.

I had thought that perhaps even the plea could be vacated because of a failure to show up for sentencing.

I still don't know any of this for sure, though.


That's right (none / 0) (#32)
by Jeralyn on Fri Oct 23, 2009 at 01:08:20 PM EST

Under California Penal Code Section 1192.5, referred to at Polanski's plea hearing, the Judge cannot sentence him to more than what he plead to without allowing him to withdraw his plea, and his failure to appear at sentencing doesn't change that. The crime he plead to carried a possible sentence of 1 to 20 with possible probation, and had he been found to be a MDSO, indeterminate commitment to the State Hospital.

The Judge deferred final acceptance of the plea agreement until sentencing. Polanski was told in court (as is required under 1192.5 that if the Judge rejected the plea agreement, calling for him to plead to that one charge of unlawful sex with a minor, carrying 1 to 20, he would be allowed to withdraw his plea. )

Also,if the court won't go along with the plea bargain, the defendant is entitled to withdraw his plea even if he doesn't appear for sentencing, unless he waives that right at the time of the plea. See, In People v. Cruz, supra, 44 Cal.3d 1247, 1249, we held that a defendant who fails to appear for sentencing does not lose the protections of section 1192.5. Also, People v. Masluski.

We held in Cruz that a defendant who fails to appear for sentencing does not breach the terms of the plea agreement, "but commits a separate offense of failure to appear. (See §§ 1320 and 1320.5.)" (People v. Cruz, supra, 44 Cal.3d 1247, 1253.) Accordingly, we held, as noted above, that a defendant who fails to appear for sentencing does not lose the protections of section 1192.5.

The DA told Polanski the acceptance of the plea that day was not binding on the court, and if at sentencing, the Judge rejected the plea agreement (allowing him to plead only to that one charge) he could withdraw his plea. (Page 16).

(Also, Section 1192.5 and cases interpreting it make plea agreements unenforceable prior to final judicial approval. As to withdrawal, see People v. Johnson (1974) 10 C3d 868; 519 P.2d 604; 112 CR 556).)


: I agree with your comment, but point out (none / 0) (#34)
by oculus on Fri Oct 23, 2009 at 01:13:11 PM EST

Swiss spokesperson says docs. requesting extradition state max. is 2 years due to amendment to PC 261.5 in 1978. [Change of plea transcript states max. is 20 years, but that was before the amendment.)

Polanski's attorneys (none / 0) (#3)
by Steve M on Fri Oct 23, 2009 at 10:38:54 AM EST

need to get on the same page. How embarrassing.

You don't think it is a negotiating tactic? (none / 0) (#7)
by oculus on Fri Oct 23, 2009 at 10:46:33 AM EST

Never heard of that one (none / 0) (#11)
by Steve M on Fri Oct 23, 2009 at 11:05:31 AM EST

maybe it's good cop bad cop, but it smacks more of the Keystone Kops to me. I don't see how you get a negotiating advantage by creating the impression that the defense lawyers don't have their story straight.


: I read a post on a lawyer blog (none / 0) (#14)
by oculus on Fri Oct 23, 2009 at 11:11:01 AM EST

yesterday as to who represents Polanski at this point. Looks like entertainment lawyers as to CA representation. Should have an excellent criminal defense lawyer who is on speaking terms with DA/DA's office and who is savvy on extradition procedure. I still think Polanski will waive extradition. Well, unless he has decided his conditions of confinement are better in Switzerland's custody and that of LA County Sheriff or CA Dept. of Corrections and Rehabilitation.

: Or, perhaps, Polanski (none / 0) (#18)
by oculus on Fri Oct 23, 2009 at 11:14:00 AM EST

is a "difficult" client?

Sounds like there's nothing to be gained (none / 0) (#13)
by andgarden on Fri Oct 23, 2009 at 11:09:59 AM EST

from fighting extradition--unless they believe that the US sentence will be much longer than what I'm seeing predicted here.

IMO, this is another example of multi- (none / 0) (#16)
by oculus on Fri Oct 23, 2009 at 11:12:43 AM EST

faceted chess. Polanski's lawyers are probably speaking with the LA DA's office even as we type.


The thing to be (none / 0) (#19)
by eric on Fri Oct 23, 2009 at 11:16:29 AM EST

gained is being free of the California prison system.


How confident are you (none / 0) (#23)
by andgarden on Fri Oct 23, 2009 at 11:27:50 AM EST

that he can avoid extradition? If the answer is "not very," then what's the point in waiting for years in a Swiss jail and then going to the California prison system?


He might... (none / 0) (#24)
by kdog on Fri Oct 23, 2009 at 11:30:53 AM EST

be able to drag it out long enough to die in a Swiss prison...or Red got him a rock-hammer and he's begun tunneling.


: heh (none / 0) (#25)
by andgarden on Fri Oct 23, 2009 at 11:33:47 AM EST

: And then: the movie! (none / 0) (#27)
by oculus on Fri Oct 23, 2009 at 11:38:00 AM EST

Polanski is entitled to credit for (none / 0) (#26)
by oculus on Fri Oct 23, 2009 at 11:37:35 AM EST

time served in Switzerland against any time he is ordered to serve by LA County Superior Court on the PC 261.5 conviction.


Then his best play (none / 0) (#28)
by eric on Fri Oct 23, 2009 at 11:42:27 AM EST

is to fight extradition and try to work a deal at the same time. If it is true the max he could get is 2 years, then he only needs to fight for 2 years. If he has to do the full two, better to do them in Switzerland.


That changes things entirely (none / 0) (#29)
by andgarden on Fri Oct 23, 2009 at 11:47:06 AM EST

delay and deal seems like the right strategy.


: Agreed (none / 0) (#39)
by Bosiul on Fri Oct 23, 2009 at 04:31:23 PM EST

I'm sure he'd prefer custody in Swiss hands over US prison time. Right now, I get the impression that LADA would already be more than content if he ever actually shows up in the US.

In new AP article, CDCR spokesperson (none / 0) (#41)
by oculus on Fri Oct 23, 2009 at 11:21:53 PM EST

says she doesn't know if Polanski will get credit for time served in Switzerland. Surprising.