due process

Roman Polanski, circa 1970s, premiumhollywood.com

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

See update below on LA District Attorney, Steve Cooley-30 September 2009 11:25 PDT.

First off, my opinion is that director Roman Polanski is guilty of rape, a rape that took place in 1977.  A few days ago, he was arrested in Switzerland, after police there were tipped off by US authorities.  Here’s an overview::

Over on the Salon.com broadsheet, Kate Harding wants us all to remember that Roman Polanski raped a child.  I often take issue with Salon, as several times in the past they have used gender as a wedge issue, intentionally framing things so as to stir controversy.  In this case, Harding wants the Polanski case reduced to one note:: child rapist.  While this may strengthen the emotional impact of her argument, it negates and dilutes the complexity of the situation and how others involved need to be held accountable for their actions that have led us to this point.

Those wanting the lurid details can easily find them online thanks to the prosecution, so I won’t go over those here.  I will state what Polanski was initially charged with back in 1977::

“rape by use of drugs, perversion, sodomy, lewd and lascivious act upon a child under 14, and furnishing a controlled substance (methaqualone) to a minor.”

The prosecution, stating they wanted to spare the the girl the trauma of having to go through a trial, offered a plea bargain, where Polanski copped to the charge of ::

“engaging in unlawful sexual intercourse with a minor.”

So, why did he flee the country and avoid extradition back to the US for over 30 years?

Allegedly, word got out that the media hungry judge, Laurence J. Rittenband, the “judge to the stars,” was getting a sense that the public would be outraged by this plea deal and was set to throw the book at Polanski.  Polanski fled.  This judge later went on record stating that he would stay on the bench until Polanski was returned.  That didn’t happen.  He retired from the bench in 1989 and died of cancer in 1993.  When he retired, he quoted Gilbert and Sullivan stating, “I got him [Polanski] on my list.”  {Don’t get me started on crank judges quoting showtunes and Shakespeare.}  Now, echoing those statements, Los Angeles County District Attorney Steve Cooley wants justice to be done::

“He received a very, very, very lenient sentence back then, which would never be achievable under today’s laws, and we’ll see what the court wants to do in terms of the sentence and the parameters within the case settlement they had back then.”

First off, one has to be suspect of the political motives for a DA to go after such a high-profile figure, which is reminiscent of the book/film, Bonfire of the Vanities. It seems odd to suddenly be going after a 75 year old fugitive from justice.

Update:: I have found out that Steve Cooley is on his third term as District Attorney.  He will likely be seeking another term in 2012, after successfully blocking a referendum instituting term limits for the office. – more background

I think there are more dangerous criminals who, I’m just throwing this out there, are in the LA area that pose a greater threat.  So, I find this to be a curious “triaging” of pressing cases by Cooley.  Moreover, Cooley has allowed lurid details to get out and the victim herself just wants the matter dropped ::

“[The District Attorney] has, yet one more time, given great publicity to the lurid details of those events for all to read again…True as they may be, the continued publication of those details causes harm to me, my beloved husband, my three children and my mother…I have become a victim of the actions of the district attorney.”

She received a civil settlement from him and just wants to go on with her life.

Harding in Salon will have none of that::

“Shouldn’t we be honoring her wishes above all else?

In a word, no. At least, not entirely. I happen to believe we should honor her desire not to be the subject of a media circus, which is why I haven’t named her here, even though she chose to make her identity public long ago. But as for dropping the charges, Fecke [a blogger] said it quite well: ‘I understand the victim’s feelings on this. And I sympathize, I do. But for good or ill, the justice system doesn’t work on behalf of victims; it works on behalf of justice.'”

Really.  In the same article she reminds us::

“Regardless of whatever legal misconduct might have gone on during his trial, the man admitted to unlawful sex with a minor.”

So, legal misconduct doesn’t factor into justice.  This isn’t a cafeteria where one can choose aspects of the case to embrace or ignore and legal misconduct sure factors into the appeal process.  So, those hoping for a Polanski extradition should be cautious of what they wish for.  It begs the question, is this really about justice or is it about vengeance and retribution?  What precisely is the difference in a sociocultural sense of US values?  How does this relate to the feminism{s} of today?

I’m far from a Polanski apologist, but I do care about how the system of jurisprudence operates.  I dislike the reduction of complexity to catchy and emotion-stirring soundbites and I think its irresponsible and short-sighted.  I’m not for glossing over his crimes, but how about holding the judge and prosecution responsible for letting things get to this point and treading cautiously given the implications of stirring up a flawed case, despite slam-dunk evidence.  Let’s think about what was proper and improper outside of the bedroom, but in the courtroom.

Twitterversion:: #RomanPolanski faces extradition to US for sentencing of 1977 rape, but what are the stakes for due process? @Prof_K

Song:: Desperate Danger – Pray For Polanski