No matter how you slice it, Roman Polanski is a divisive figure. I blogged about his detainment by the Swiss police last fall {that post details the case}, when the Los Angeles District Attorney was angling for extradition. I should add that like I said in my earlier blog, I’m not a Polanski apologist and my concerns have to do with civil liberties. The story stirred up quite a bit of emotions with the anti-Polanski camp calling him a child rapist, the victim wanting the whole affair to go away, and his Hollywood supporters making pleas to sway public opinion. Today, the Swiss Justice Ministry refused to extradite Polanski, citing that the LA prosecution failed to provide enough evidence, among other factors. There is no expectation that U.S. authorities will appeal and he’s a free man.

First, I think it should be addressed why the Polanski affair angers so many people. It’s a reminder of an ugly chauvinistic past and the seeming existence of a two-tiered justice system that a CBC article summed it up quite well last fall::

“…For generations, women have suffered unfairly in rape cases, particularly at the hands of the courts. The onus of guilt was often shifted to the woman under the phrases ‘she should have known better’ or, even worse, ‘ she asked for it.’

These ugly phrases and the often lack of support from the police and courts caused untold numbers of women to suffer in silence rather than seek justice in a public forum.

Fortunately, things are changing, but not far enough nor fair enough. Polanski’s efforts to avoid prison —coupled with all the prominent people who are rushing to support him — are a reminder to many women of the unfairness of both public sentiment and the legal system.”

In my previous blog on Polanski, I called into question issues of due process and prosecutorial misconduct. On a Facebook wall, my arguments were reduced to saying that I was equating his crime with possible misconduct::

“[Kenneth Kambara] is trying to equate purported legal misconduct with admitted statutory rape. I think the latter is proven–by admission–and the former possible but unproven. And the efforts to prove it cannot be attempted from Europe.

Polanski wanted to return to the US, that’s why his lawyers were pushing this issue. If extradition is achieved, he will get his wish. He has nobody to blame but himself.”

I must admit I found this to be a curious statement, as in my mind it highlights how the public wants justice and may not have the patience for due process. The above statement refuses to acknowledge that flaws in procedure matter, regardless of the crime and how reprehensible it might be. Nevertheless, being a stickler for due process can upset the sensibilities of fairness when someone who seems dead-to-right guilty gets away with punishment by faulty due process. Yet, without upholding due process, what kind of legal system would there be?

In 1986, Chief Justice of the California Supreme Court, Rose Elizabeth Bird {appointed by Jerry Brown}, and several other “liberal” justices were not confirmed in the general election. One of the major issues was the death penalty and how she overturned cases. The reason? Due process. Bird argued in several capital cases that there were flaws in procedural due process and to try again without the flaw. This holds police and the judicial system to a high standard of conduct, in order to limit the incarceration or death of the wrongly accused. I think this can be frustrating to those thinking that this is a travesty of justice, but it goes back to what type of legal system do the people want.

The Swiss Justice Ministry claimed that they didn’t consider Polanski’s crime, but the LA court’s procedures. The ministry requested documents from the meeting where Polanski’s lawyers met with the original 1977 judge, Laurence Ritterband. The U.S. Justice Department refused, citing confidentiality. Arguably, those documents may have proven embarrassing to the California court and harmed the case. The Swiss threw out the extradition request, which only occurs 5% of the time, citing a lack of support for the request and the fact that it came years after U.S. authorities knew Polanski had a residence in Gstaad since 2006, but failed to act until 2009.

I think FoxNews Entertainment hit the nail on the head on how the State of California managed to look like the bad guy in a child rape case::

“…And [Robert] Reuland [a New York City-based criminal defense attorney] says that while California is probably embarrassed by Switzerland’s decision, this could also be the end of their efforts to pursue Polanski, which is probably costing millions and millions of dollars.

‘At some point, California prosecutors have to decide whether they want to keep at something that is taking so much effort and cost. His public nature plays a big role in why they have pursued it for so long now. But after a certain point, California starts looking like the bad guy in a severely botched case,’ he said.

It’s pretty hard to look like the bad guy in a child rape case, but somehow California managed to do it.”

Song:: Echo & the Bunnymen-‘Do It Clean’

Twitterversion:: [blog] Why the Polanski affair is such a hot topic & the intersection of fairness & due process. #ThickCulture @Prof_K