Roman Polanski: Should the Swiss Deny Extradition?

Now that the Judge has refused Roman Polanski's request to be sentenced in absentia, the Swiss will act on the extradition request. Can they refuse it? Do they have to refuse it as being legally insufficient? What is Polanski's best argument?

Roman Polanski's lawyers say LA prosecutors misled the Swiss in making the request for Roman's extradition by omitting to inform them that Polanski was not facing a sentence of a year or more upon his return.

Lawyers for Mr. Polanski have argued that the judge who originally handled the case, Laurence J. Rittenband, who has since died, never intended to jail him for more than 90 days. They contend that a sentence that short would not qualify Mr. Polanski, who has been held in Switzerland since September, for extradition to the United States under a treaty between the two countries.

...Action by the Swiss is anticipated within weeks, although Mr. Polanski’s lawyers have said in court that officials in Switzerland had been waiting for more clarity about Mr. Polanski’s possible sentence.


Here's the 1996 Senate Report explaining the 1990 treaty between the Swiss and the U.S. It begins:

On November 14, 1990, the President signed an extradition treaty with Switzerland. The Treaty was transmitted to the Senate for its advice and consent to ratification on June 12, 1995.

Section VII contains an explanation of the treaty's provisions. First, it applies to people who have been found guilty but not been sentenced. To make that clear, it avoids using the word "convicted."

Article 1--Obligation to extradite...formally obligates each Contracting Party to extradite to the other pursuant to the provisions of the Treaty persons charged with or found guilty of an extraditable offense, or subject to a detention order in the Requesting State. The term ``found guilty'' was used instead of ``convicted'' because in Switzerland, a person is not considered convicted until a sentence has been imposed, whereas in the United States, a sentence is ordinarily not imposed on a convicted person until after a presentence report has been prepared and reviewed. The negotiators intended to make it clear that the Treaty applies to persons who have been adjudged guilty but flee prior to sentencing.

Article 22 says the treaty applies to offenses committed before its enactment.

Article 2 addresses what constitutes an extraditable offense:

Article 2, sometimes referred to as a dual criminality clause, defines extraditable offenses as offenses punishable in both contracting states by prison terms of more than one year.

....[A]n offense is extraditable if it is punishable under the laws of both parties by a prison term of at least one year....If the extradition request involves a fugitive, it shall be granted only if the remaining sentence to be served is more than six months. (my emphasis)

...In order to ensure that extradition is not requested for minor offenses, paragraph 1 requires that if the person has already been sentenced, the person must have at least six months of that sentence still to serve.

The Swiss Federal Office Of Justice explains it a little differently:

Old extradition treaties contain a list of offences for which provision for extradition is made. More modern treaties, however, such as the European Convention on Extradition, provide for extradition if the alleged offence is punishable by a custodial sentence of a certain minimum duration (one year), or if a sentence of a certain minimum duration (four months) has been imposed.

Here are the Swiss Extradition Guidelines.

Further, it appears since the extradition request does not seek extradition for a new charge of fleeing to avoid sentencing, and no such charges are pending against Polanski, such an offense, even if it could be added in the U.S. now, cannot be considered by the Swiss.

Under the principle of speciality, the extradited person may be prosecuted, held in custody or extradited on to a third state only for those criminal offices that were committed prior to their extradition and on the basis of which the extradition was approved. Once extradition has taken place, the requested state may nonetheless approve further prosecution on the basis of a subsequent application.

So here's the rub: At yesterday's hearing, Judge Espinoza said:

“Nothing precludes the possibility that Judge Rittenband’s promise will someday be enforced,” he said. And, he added: “I don’t disagree that the intended sentence was” the time Mr. Polanski already spent in a state prison under psychiatric evaluation. (my emphasis)

According to the LA Times, Espinoza was even more specific:

Espinoza appeared to agree, saying of the 42 days Polanski spent in the state prison in Chino, "It's clear to me that was the intended sentence."

But, he added, since the director skipped town on the eve of the hearing, sentencing was never formally imposed and the case remained open.

The Swiss may have to decide whether Roman, having already served 42 days of a promised and intended but not fully imposed 90 day sentence, before becoming a fugitive, fits within the section that allows extradition "only if the remaining sentence to be served is more than six months." If they decide he doesn't, it can and should refuse extradition.

The Swiss were hoping for guidance from yesterday's court hearing. If they don't feel they got it, how will they decide? Will they look to other parts of the record? For example, in addition to the Judge's comments yesterday, the California appeals court in its opinion noted:

If a hearing had been requested on the record and granted, by Polanski’s account at least three people could have testified at the sentencing hearing to the trial court’s agreement that the diagnostic study would constitute Polanski’s entire punishment: Dalton, Gunson, and probation officer Gold.

Now, with the victim's lawyer's filing this week, there are four affidavits on file all stating the Judge expressly promised not to exceed the 90 sentence for evaluation.

In a new revelation, Silver wrote in his legal filing that he witnessed Rittenband say in his chambers that no other incarceration would be imposed, only to then renege on his promise and threaten to send Polanski to an indeterminate prison sentence. Polanski fled the country soon after.

If the Swiss consider, in combination: Judge Espinoza's statement yesterday that it's clear the original sentencing judge only intended a 90 day sentence; the four sworn statements of the former case prosecutor, the probation officer, Roman's lawyer and the victim's lawyer, all attesting that the Judge promised no more than 90 days if Roman went to do the psych evaluation; that Roman, relying on that representation, agreed, and the Judge then imposed the psych evaluation sentence; that Roman complied with his end by going into prison for the evaluation and when he came out, there were less than four or six months remaining of the promised and intended 90 day sentence, will they decide the U.S. has not met the legal requirements for extradition?

More on this aspect at yesterday's hearing:

In court documents, Polanski's attorneys said the late Superior Court Judge Laurence J. Rittenband sentenced the director in 1978 to a diagnostic study at a California prison where he served 42 days.

Although the judge told attorneys that would be Polanski's full sentence, he later indicated he was going to renege on the bargain and give him a harsher sentence at a scheduled hearing. Polanski fled to France and has been a fugitive ever since. His attorneys said the judge's promise is binding and Polanski has served his full sentence.

Judge Espinoza agreed with the 90 day intent, but expressed his belief the sentence hadn't actually been imposed:

Espinoza added another twist in his remarks from the bench by saying he believes Rittenband originally intended to sentence Polanski to a maximum 90-day period of incarceration for the diagnostic study but never officially imposed the penalty in court.

The Judge's position doesn't seem reasonable considering Polanksi appeared for sentencing and was ordered to prison where he spent 42 days. Also, when Romanski pleaaded guilty, the judge said he'd make his final decision after reading and considering the evaluation report and probation report and hearing from counsel. All of which he refused to do.

Instead, after the Judge had imposed and Polanski had served the diagnostic portion of the sentence, the Judge scheduled another sentencing hearing. And days before the hearing, he told the prosecutor and Roman's lawyer he had changed his mind, he was going to impose additional time. So the judge at least partially imposed the sentence, and Roman had served it.

The way I see it, or at least the argument I'd make, is that since the sentence had partially been served, the legal question to be decided by the Swiss is not what could he have been sentenced to, but how much time remained to be served. Since everyone, including the current Judge, agrees the original Judge intended to and promised to impose no more than 90 days, and Roman served 42 of them, there is less than four or six months remaining on his sentence and the request doesn't comply with the U.S.- Swiss treaty or Swiss law.

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    The trial court ordering (5.00 / 2) (#1)
    by oculus on Sat Jan 23, 2010 at 12:59:24 PM EST
    a diagnostic study, such as the oourt ordered re Mr. Polanski, is not imposition of sentence.  A person, such as Mr. Polanski, who is confined at a state correctional facility, such as he was at Chino, is entitled to credit for time served when the court later imposes sentence or grants probation.  

    Also, since Mr. Polanski failed to appear for sentencing hrg., sentence has not yet been imposed and he could be sentenced to no more than 2 yrs. in a state correctional facility (of course also being entitled to credit for time served at Chino and possibly credit for time served in detention facility in Switzerland). Mr. Polanski stated under oath on the record in the change plea proceeding his plea was not conditioned on promise of receiving any particular sentencing disposition.  

    Thus, in my opinion, Mr. Polanski is "punishable" under California state law within the meaning of the extradition treaty.

    the judge on the record (none / 0) (#13)
    by Jeralyn on Sat Jan 23, 2010 at 02:46:44 PM EST
    said the agreement was he would decide whether the crime was a felony or a misdemeanor after he had read and considered the evaluation report and probation report and heard arguments of counsel. He refused to consider those reports and denied counsel the opportunity to present argument.

    Polanski's lawyers say it's one year not two and the prosecutors misstated it on the extradition request.

    Yes, that is your opinion, I think a case can be made for the alternative view.


    Assuming current statute is applicalbe, (none / 0) (#16)
    by oculus on Sat Jan 23, 2010 at 03:04:26 PM EST
    low term is 2 yrs.  Could be probation of course, with max. of 1 yr. in local custody and credit for time served.

    As I read the treaty provisions, (none / 0) (#2)
    by Peter G on Sat Jan 23, 2010 at 12:59:47 PM EST
    or rather the summary of them that you so helpfully quote, RP's extradition for sentencing would be within the letter of the treaty, but against its intent or spirit.  Key to my (technical) disagreement with your reading, TL, is that I don't think it's (technically) accurate to say that RP has "served" 42 days of the sentence -- which is, after all, yet to be imposed.  Rather, if and when he is sentenced, he will be entitled to 42 days of credit against that sentence.  He is legally in a pre-sentence status, and is to be sentenced for an offense which is categorically "punishable" by (much) more than a year's imprisonment.  In his individual case, on the other hand, because of the unusual history and circumstances, we know (or think we know) that he does not really face in excess of six additional months to serve.  An intriguing little puzzle.  I wouldn't fault the Swiss authorities for interpreting the treaty either way, as applied to this particular case.

    Interesting. I note you do not (none / 0) (#3)
    by oculus on Sat Jan 23, 2010 at 01:02:16 PM EST
    refer to Roman Polanski by either of his names or as "defendant."  

    What do you find "interesting"? (none / 0) (#8)
    by Peter G on Sat Jan 23, 2010 at 01:23:43 PM EST
    ... that you and I agree on the key legal point, or that I made a letter/spirit distinction, or that I used a clear shorthand for the defendant's name, meaning nothing in particular by it?

    Letter/spirit. Plus, I must (5.00 / 1) (#9)
    by oculus on Sat Jan 23, 2010 at 01:26:33 PM EST
    admit references in the post to "Roman" grate on my nerves as a former DDA.

    As for "Roman," (none / 0) (#10)
    by Peter G on Sat Jan 23, 2010 at 01:44:19 PM EST
    ... one of the great things about my friend TL, and thus about this site, is that our esteemed hostess lays her cards on the table, not only analytically but also her POV.

    So true. (none / 0) (#11)
    by oculus on Sat Jan 23, 2010 at 01:47:17 PM EST
    Excellent research by TL, which, if Mr. Polanski's criminal defense counsel are reading, could result in a trip to Switerland.  

    thanks, Peter (none / 0) (#25)
    by Jeralyn on Sat Jan 23, 2010 at 07:38:15 PM EST
    I think you have a good point, but I also think his serving 42 days is different say, than being denied bail before pleading and then given credit against the ultimate sentence. In his case, the 42 days was a consequence of the guilty plea, so I think the Swiss could look at it as the first part of the sentence, which is why I call it a "partially imposed sentence."

    If I were writing an amicus brief for him to the Swiss, I think I would frame the issue as "When a person has pleaded guilty and served a portion of the sentence to be imposed, and the agreed upon remaining portion is less than six months, whether extradition is determined by the maximum sentence that could be imposed for the crime or the remaining amount of the sentence to be served."

    I'm sure you could say it better, but that's my point.


    Re Judge Espinoza's comments on the record (none / 0) (#4)
    by oculus on Sat Jan 23, 2010 at 01:09:44 PM EST
    yesterday about what he thinks was the intent of the now-deceased sentencing judge:  when I first read his comments, I thought he was signaling Mr. Polanski and his criminal defense counsel to encourage Mr. Polanski to cease fighting extradition and then attempt to resolve the criminal case with the DA's office.  (Wink, wink--I won't send you to state prison for 2 years.)

    I do not anticipate the California appellate (none / 0) (#7)
    by oculus on Sat Jan 23, 2010 at 01:14:40 PM EST
    court will dismiss the criminal matter outright.  The justices must stand for election.  

    No but perhaps they will (none / 0) (#15)
    by Jeralyn on Sat Jan 23, 2010 at 03:03:31 PM EST
    say the trial court abused its discretion in refusing to sentence him in absentia. His reason was Polanski was a fugitive but the statute makes no exceptions for fugitives.

    If the conviction is for a felony, the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence, and that he or she be represented by an attorney when judgment is pronounced, and the court approves his or her absence during the pronouncement of judgment...

    The Court of Appeals also said:

    Fundamental fairness and justice in our criminal justice system are far more important than the conviction and sentence of any one individual. "[F]or my part I think it a less evil that some criminals should escape than that the government should play an ignoble part." (Olmstead v. United States (1928) 277 U.S. 438, 470 (dis. opn. of Holmes, J.).) Polanski's allegations urgently
    require full exploration and then, if indicated, curative action for the abuses alleged here.
    We exhort all participants in this extended drama to place the integrity of the criminal justice system above the desire to punish any one individual, whether for his offense or for his flight.

    I have to assume if the DCA majority (none / 0) (#17)
    by oculus on Sat Jan 23, 2010 at 03:08:35 PM EST
    thought the case should be dismissed outright w/no evidentiary hrg. re Mr. Polanski's allegations of prosecutorial and/or judicial misconduct, the DCA would have done so.  How could the Court of Appeal then find the trial court abused it's discretion in failing to dismiss outright?

    because the court said (none / 0) (#20)
    by Jeralyn on Sat Jan 23, 2010 at 03:17:09 PM EST
    it wouldn't place itself in the trial court's shoes as to whether Polanski had to be there to litigate the motion to dismiss -- that was a matter of competing interests and the court couldn't say it was an unreasonable exercise of discretion --

    but the issue of sentencing is absentia involves different considerations and since the absentia statute makes no exclusion for fugitives, the appeals court might say that ground is insufficient to deny Polanski's request.

    Remember, it's the defendant's right to be present at sentencing, and the statute allows him to waive that right.

    Gotta run now.


    Defendant may waive, but he/she (none / 0) (#21)
    by oculus on Sat Jan 23, 2010 at 03:18:57 PM EST
    has to be there unless the court, in its discretion, grants request to be absent.

    exactly (none / 0) (#22)
    by Jeralyn on Sat Jan 23, 2010 at 03:44:31 PM EST
    the court can't abuse its discretion in denying the request.

    Here is the Court of Appeal opinion (none / 0) (#14)
    by oculus on Sat Jan 23, 2010 at 03:02:40 PM EST
    denying Mr. Polanski's petition for writ of mandate:  link

    It appears the statutory mandated evaluation was to determine whether Mr. Polanski was an MDSO.  It also appears he was not in custody during this evaluation.  After the trial court received that evaluation and the probation report, court ordered the 1203.03 evaluation, which took place at Chino.  The latter evaluation was not required by statute--trial court has discretion to order it.  Neither counsel objected.

    Yes, the diagnostic study (none / 0) (#24)
    by Jeralyn on Sat Jan 23, 2010 at 07:25:06 PM EST
    was pursuant to a different statute than the MDSO study statute. I'll correct that but I think it strengthens my argument that it was punishment, and therefore, a partial imposition of sentence. From Polanski's motion to dismiss:

    In 1977, Mr. Polanski was convicted, pursuant to a plea bargain, of one count of unlawful intercourse with a minor in violation of Section 161.5 of the Penal Code, an alternative
    felony/misdemeanor. ...The plea agreement provided that the sentence in the case was to be based upon the report submitted by the Probation Department and the argument of counsel.

    It is thus clear that there were two conditions to the plea agreement. First, the Court was required to read and consider the report of the Probation....Department.   Second, the Court was required to hear and consider the arguments of counsel before making any decision regarding Mr. Polanski's sentence. But Judge Rittenband failed to heed either of these conditions.

    Instead, Judge Rittenband impermissibly sentenced Mr, Polanski to confinement in state  prison under the guise of a diagnostic study pursuant to Penal Code Section 1203.03. Both the prosecutor and the probation officer objected to the illegality of using the diagnostic study as a form of punishment, especially given the fact that the probation officer had recommended that Mr. Polanski not serve any time in prison, and the minor's family had urged the same.  But the Judge persisted, informing all counsel ahead of time that he intended to sentence Mr. Polanski under Section 1203.03 and -- in a blatant abuse of the justice system - instructing counsel to "stage" a hearing in which they would each present their designated arguments and the Judge would proceed to impose the sentence as if his ruling had not already been decided.

    When Mr. Polanski was released rom maximum-security pison after spending 42 days undergoing the unnecessary and unjustified "diagnostic study," Judge Rittenband did not conclude the case, as promised, but instead called counsel into his Chambers again to tell them that he had received "criticism" about his apparent failure to impose greater punishment on Mr. Polanski.

    Thanks for the correction.


    Not determined yet (none / 0) (#23)
    by Cream City on Sat Jan 23, 2010 at 06:23:14 PM EST
    as the sentence starts with "if."  Correct?