Did Polanski's Own Appeal Lead to His Arrest?

Did Roman Polanski's recent attempts to have a decades-old statutory rape charge dropped somehow accelerate the extradition efforts that led to his arrest in Switzerland? Earlier this year, lawyers for the fugitive Oscar-winning director filed two separate documents with the California Second District Court of Appeal asking for the dismissal of all charges and alleging that the Los Angeles district attorney's office in effect benefited from Polanski's absence, because as long as he remained a fugitive, it could dodge answering allegations of prosecutorial and judicial misconduct during the case. Indeed, the lawyers alleged in the July filing that the California authorities were not making any attempt to extradite him at all.

"I would not be surprised to learn that they stepped up their efforts to catch him once he filed that motion alleging all sorts of misconduct by the judge and by the prosecutor's office as a whole," says Jean Rosenbluth, USC law school professor and former federal prosecutor. "He put them in this position where he made all these allegations and yet they could not be adjudicated because he's a fugitive. He can't file this motion and make all these allegations and expect the DA's office to do nothing about it."

The district attorney's office denies there is any linkage between potential allegations of judicial and prosecutorial misconduct and Polanski's Sept. 26 arrest in Switzerland. It also provided a statement detailing previous extradition efforts, including an attempt to arrest Polanski, now 76, while he was in Israel in 2007. But the recent legal motions on Polanski's part seemed to have rolled into his apprehension in Switzerland, after years of apparent inactivity in a case that is far more complicated than just an unpunished sex crime, which is how it has been debated through the week.

Polanski originally faced six felony charges related to the drugging and rape of then 13-year-old Samantha Geimer in 1977. He eventually pleaded guilty to one count of having unlawful sex with a minor, but left the country in 1978 after being convinced that the judge in the case, the now deceased Laurence J. Rittenband, meant to backtrack on a plea agreement and send him back to prison. Polanski's most recent attempts to have the case dismissed faltered because of a chicken-and-egg legal loop. Polanski refused to appear in court in person for fear of arrest. Even if judges were sympathetic, most subscribe to the Fugitive Disentitlement Doctrine, which says a court will not adjudicate a claim made by a fugitive because if the fugitive loses, the court has no way to enforce its order.

Late in 2008, Polanski sought to have the charges dropped after an HBO documentary, Roman Polanski: Wanted and Desired, detailed claims of judicial and prosecutorial wrongdoing during the time of the director's original arrest. In the film, the then Los Angeles deputy district attorney, David Wells, says he met with Rittenband without the presence of defense counsel to argue for more jail time for Polanski. Wells was not himself an attorney on the case but he was a lawyer working for one of the parties, the state of California. The California Code of Judicial Ethics forbids judges to engage in ex parte communications, or discussions where only one side of a case is represented. Wells, who retired two years ago, has now recanted what he said on film, saying he "embellished" the anecdote about speaking to Rittenband about increasing Polanski's penalty. He told the Associated Press on Sept. 30 that he did so because he thought the HBO film would air only in France and not in the U.S. "It was a dumb thing to do," Wells told the AP. "I'm going to have to live with it." (The State Bar can choose to punish a lawyer found in violation of ex parte rules.)

The HBO film's allegations, however, became central to Polanski's late 2008 appeal. In February 2009, Los Angeles County Superior Court Judge Peter Espinoza, citing Polanski's fugitive status and refusal to appear in court in person, ruled against his request, but also indicated that he was open to arguments that misconduct had occurred. Laurie Levenson, a professor at Loyola Law School in Los Angeles who was at the hearing, says Espinoza "was open to the argument that Polanski should not have to do any more jail time and that the court had been wrong to renege on the prior deal." In July, Polanski's lawyers appealed Espinoza's ruling, once again alleging misconduct and claiming California was consciously avoiding extradition efforts. And then came the Swiss arrest on the decades-old outstanding warrants.

Sandi Gibbons, spokeswoman for the Los Angeles County District Attorney's office, denied that Polanski's arrest had anything to do with his recent court filings, but rather was part of an ongoing effort to apprehend him. "We've been doing this involving this particular fugitive since one day after the bench warrant was issued in 1978," Gibbons told TIME, "and we've been continuing to do it throughout that time period. There have been other efforts to arrest him, [but] they were unsuccessful. This particular effort was successful. I can't say anything more than that." Los Angeles prosecutors have confirmed that they will file an extradition warrant to enforce Polanski's return and they have 40 days to prepare it. Before the arrest, Levenson thought the courts would have been lenient: "I didn't get the impression that [Polanski] would have gotten slammed from the [Espinoza] court if he had voluntarily come back, but having been picked up the way he is I don't know what will happen. Whether the courts are going to be that generous now is unclear."

Unsurprisingly, Polanski, a French citizen, is contesting extradition in what is sure to be a lengthy appeals process. One tactic Polanski's legal team may take is to challenge the lawfulness of the arrest warrant on the basis of misconduct during the original legal proceedings. "His lawyers could argue that this is an invalid conviction because it's based on a fraud. Then you could have a Swiss court decide whether or not the proceedings here in Los Angeles were so corrupt that they invalidate the conviction," says Harland Braun, a criminal defense attorney and former deputy district attorney in Los Angeles County. Braun, who worked in Rittenband's court as a young attorney, says the judge routinely held ex parte communications with state prosecutors. "He would talk to people without the other side there, which is completely illegal. Now I didn't do it because I knew someday the proverbial thing was going to hit the fan and that it was unethical." As for Wells' recantation, Braun says, "It does surprise me now that he's said he lied. So I tend to believe his first version." Why would Wells change his story? "I don't know. Other than that it's an ethical violation for a lawyer to do that and they can be disciplined by the bar."

Geimer has also joined in Polanski's bid for dismissal, saying she wants the case to be over. She sued Polanski and reached an undisclosed settlement during the original court proceedings. Braun says that is a further argument to put before the Swiss court. "The basis for the extradition would no longer be a conviction or a plea, but whether or not there was a case against him, and there isn't a case against him because the victim has grown up and says she won't testify." Braun continues: "Or a Swiss court says we'll extradite him only on condition that Los Angeles vacates the plea and sets it for trial. But there is no trial because the victim won't testify."

Levenson doubts that the Swiss courts will intervene to that degree. "I don't think they can go behind the charges and challenge the conduct and the judge in California. They don't really have any facts to do that," says Levenson. "I think the most likely outcome is he's either coming back or he'll negotiate some kind of result with the DA's office."

If Polanski's attempts to appeal his arrest and extradition to the United States fail and he is forced back to Los Angeles, he could face up to four years in state prison for the initial crime he pleaded guilty to before fleeing the United States. He could also face a maximum of three additional years served consecutively if the courts decide to charge him under California state penal code 3059 for leaving the state without permission. "I think it would be very unlikely that he would get that, but that's probably what's possible," says Levenson.

When asked what charges Polanski might face, Gibbons of the Los Angeles County district attorney's office said in a terse e-mail, "Polanski pleaded guilty to unlawful sex with a minor. He fled the jurisdiction of the Los Angeles Superior Court before the court could sentence him. When he is returned to Los Angeles, he will appear before the court for sentencing. There is really nothing else to discuss because this is a matter that is between the fugitive and the court."