October 6, 2009
Legal Department
Polanski Questions
About the only good thing I can think about in the whole Polanski fooforaw is that it gives folks who wouldn't otherwise have had one an easy opportunity to stake out a not particularly morally difficult or brave position against middle-aged guys raping young girls, and in favor of said assholes being given appropriate punishment for it.
Miami lawyer Brian Tannebaum takes a little time out from both what is apparently a very successful legal practice (as well as endless fascinating with moderately expensive wine and an obsession as to which group of men is marginally better at transporting an oblate spheroid constructed of a fragment of inflated swine's epidermis in an arbitrary direction) to point out some obviousnesses; Brian has, from time to time, a keen eye for the obvious.
A lot of folks have been blogging about Polanski. I'll join in, perhaps, but . . . I'd like to know a little more, before I start flogging my own keen eye for the obvious.
Which leads to my questions -- which aren't of the hypothetical of "What sort of rope would, in a saner society, be used to execute the 'suspended sentence' that the bastard deserves?" as easy and tempting a target as that might be.
Nah. Realistically -- and forgetting about what should or shouldn't be done -- what sort of sentence would a guy who doesn't have a plea bargain be likely to face, today in California, for the offense Polanski pleaded guilty to? (I'm not asking about what somebody who pled out recently would get; the law may have changed in CA in the ensuing decades, and I'm assuming -- although certainly willing to be corrected -- that he'd be sentenced based on what the law was then, as opposed to now.)
Also: on the flight charge or charges, what would the CA crimes be that he's at least possibly going to be prosecuted for violating by his flight? And what, should he be charged and convicted, would he likely to face in terms of time for those?
I'm not asking any lawyer to put his law license into the pot for the purposes of satisfying my curiousity, but if anybody -- with or without a law degree -- has any knowledge on the subject that they'd care to share, I'd love to see it in the comments.
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Remember McMartin and Little Rascals, both of which were bogus prosecutions, but also what's been happening in the American Catholic Church over the past ten years?
What would have happened to Polanski 30 years ago frankly isn't as interesting as what's going to happen to him (hint: without consulting the California code ca 1978, I suspect it isn't as bad as the sentence he'd get under a modern statute), but what is interesting is that by fleeing, Polanski by all accounts threw away a pretty sweet plea deal. Today he'll get as much real time as the judge can give him, not to mention additional charges for his flight, because judges, even appointed judges, are politicians. He can't OJ his way out of this one. There aren't enough Slavic Jews in Los Angeles for that, and for that matter apart from Harvey Weinstein most of them are probably as disgusted with Polanski as, say, Chris Rock.
The Swiss court with jurisdiction over extradition denied Polanski bail this morning, finding him a flight risk despite his lawyer's assurance Polanski would return to court.
Imagine that.
Yup. I'm not sure it's a great advertisment for the American criminal system -- "Look at what we do to folks who didn't do anything; imagine what we might to do you if you actually do something wrong" -- but it is a clear sign that the society is not exactly tolerant of child rape.
And I'm guessing that you're right -- that the CA criminal code as of 1978 is what's going to determine his sentence -- which will probably be the maximum allowable under the '78 rules, whatever they were.
IANAL, and all, but after a guy's pled guilty, the issue of what the jury would have said or might have said doesn't much matter.
And, yeah, if the victim can be deterred from talking/cooperating before the matter gets to court, there's some leverage, but as we've seen with those Catholic priest cases that do get in front of a judge and jury, sentences tend to be serious.
About the only leverage, I see, from this POV, that Polanski and his lawyers have is to try to get testimony from the victim as to the sentence -- their argument, perhaps, being absent the victim's testimony under cross examination as to Polanski's actual conduct, the only issues that can properly be considered when a sentence is imposed involves the plain facts of his knowingly (check; Polanski said so in court, last time around) having had sex with a minor unable to technically give consent, rather than what, well, he actually did. (And I'm not sure that's unfair, actually.) He's in an awfully weak position to argue that he's repented, given his interviews; maybe they'll be able to keep the grand jury testimony out of the record, although I can't see how they can keep that out of the judge's brain.
My guess is that we're talking years, in practice, but I'd like to know. Ditto for the flight charges.
As to the flight risk, that was a no-brainer. They guy took off, thirty years ago, out of (an apparently entirely credible) fear of having to serve less than two months more time; no reason to think he'd be less footloose now, when he's facing years, and possibly the rest of his life, in some environment even more oppressive than the French Riviera
Seems to me that, in principle, a lawyer should be able (although not required) to say, "Sure -- my client will show up, and I'm willing to be held in his place until he does." But I'm guessing that that's not an option and that, if it was, his lawyer might choose to decline.