For three decades, the threat of immediate arrest has kept film director and felony fugitive Roman Polanski from setting foot in the United States. Even the 2003 night he was awarded his Oscar for directing "The Pianist," he dared not come to Hollywood to receive it in person.
It's the price he pays for having unlawful intercourse with a 13-year-old girl during a long ago Hollywood Hills party. In 1978, Polanski entered a guilty plea in Santa Monica, but fled to Europe before sentencing. A warrant was issued for his arrest, and it remains in effect to this day.
In the past, notably 1997, attorneys for Polanski have made efforts to resolve the matter so Polanski could return to America. But a sticking point has always been the requirement that before Superior Court could rule on Polanski's case, he had to submit himself to the court's jurisdiction, and appear in court, and if things did not go his way, risk being sent to prison.
But now his lawyers have deployed a groundbreaking legal strategy intended to persuade the court to take up a motion to dismiss Polanski's case, while he remains safely beyond the court's reach, in case it rules against him.
"This is a first of a kind," said Loyola Law School Professor Laurie L. Levenson. "They're attempting to make new law."
At the request of NBC Los Angeles, Levenson reviewed the documents filed Tuesday on Polanski's behalf by the law firm of Manatt, Phelps & Phillips LLP and Bart Dalton. The firm provided copies of its pleadings, along with a press release, but declined to make its attorneys available to be interviewed. Levenson noted that the document does not call itself a motion, but a "Request of defendant Roman Polanski ... for the court, on its own motion, to dismiss this prosecution." Levenson said the attorneys will argue that since it's not Polanski's motion, but would be the court's, Polanski need not be present for the court to act on it.
Polanski's attorneys cited Penal Code Section 1385 with this excerpt: "[A] judge ... may ... of his or her own motion ... and in furtherance of justice, order an action to be dismissed." But Levenson observed that this section has never been used to justify allowing a fugitive to seek a court's remedies while remaining out of its reach.
The argument for the dismissal focuses on allegations of judicial and prosecutorial misconduct raised in the HBO documentary, "Roman Polanski: Wanted and Desired." It contends that the late Judge Lawrence Rittenband, acting on the advice of a Deputy DA who was not the prosecutor, improperly punished Polanski by sending him to prison for a six-week psychiatric evaluation, then subjected him to double jeopardy by reneging on a plea agreement that involved no further prison time.
The District Attorney's office said Tuesday evening it had yet to be served with a copy of the Polanski filing, and therefore could not comment on its arguments. "However, we welcome the opportunity to litigate this, and look forward to seeing Mr. Polanski again," said DA's Public Information Officer Sandi Gibbons, who indicated her office believes dismissal should not be considered so long as Polanski remains a fugitive.
Over the years, the victim in the case, Samantha Geimer, now in her mid 40s, has publicly come forward to say she believes Polanski has not been treated fairly by the judicial system. "This should have been settled a long time ago," she told KNBC News reporter Laurel Erickson during a 2003 interview. More recently, Geimer reaffirmed that viewpoint when she appeared in the HBO documentary that Polanski's lawyers are citing.
A first court date for the Polanski "request" has been set for Superior Court Deptartment 100 next month. Levenson expects the issue of whether Polanski needs to be present will come up quickly. But don't expect Polanski himself to be there in person.