At this point we don't know enough to determine who was at fault. Right now, there are 3 possibilities:
- The U.S. falsely withheld documentation. This seems to be the position that many of the "free polanski" group has taken (and, as I stated above, I have problems with that since the documentation asked for doesn't seem to be relevant to what the Swiss courts should deal with)
- The Swiss didn't actually ask for the documentation (as the article I stated above suggests might have happened)
- The U.S. withheld the documentation, but it was justified in doing so
Let's try to piece the facts together.
Polanski entered into a
plea bargain on August 8, 1977. This plea bargain was entered with the DA, Roger Gunson, and with consent of the victim of Polanski's statutory rape. At that meeting, it was made clear that the judge, Laurence Rittenband, was not bound by this plea bargain, but initially, the judge was of mind to honour it.
According to the plea bargain, Polanski would go into 90-days psychiatric unit detention. He got a stay to delay this due to filming obligations in Europe. He returned from Europe, reported for the psych unit detention, and was released of this after 42 days by the psychiaters.
Some time later Rittenband changed his mind, precipitated by seeing newspaper photos of Polanski at the Munich Oktoberfest in the company of (young?) girls. In a 2008 documentary, another DA, Webb, was on film saying he gave the newspaper photos to Rittenband, advising him how to change the sentence; later Webb stated that was a lie. Polanski fled the US on February 1, 1978.
Cue to the present.
Polanski was arrested September 2009 in Switzerland and has been jailed/under house arrest since, pending the extradition request.
Before that, in July 2009, Polanski
filed in LA court a case to dismiss the case against him, partially on grounds of Webb's statements in the documentary. This
request was denied December 21, 2009, by judge Espinoza.
Thereupon he requested the court to be tried in absentia, on January 6, 2010. (
wiki). Wiki says the hearing for this case took place January 25; the
NY Daily News article, however, is dated January 22 and implies the hearing was January 15. The hearing was presided by the same judge Espinosa. He denied the treatment in absentia. DA Walgren, who argued against it, has apparently never heard of "innocent until proven guilty":
Espinoza, however, interrupted Walgren as he began to denounce the director as "this criminal, this fugitive, this child rapist."
More interesting is, however, what Polanski's lawyers argued and what judge Espinoza said:
His attorneys said the judge's promise is binding and Polanski has served his full sentence. They have asked Espinoza for a full hearing with witnesses about allegations of judicial and prosecutorial misconduct.
Espinoza added another twist in his remarks from the bench by saying he believes Rittenband originally intended to sentence Polanski to a maximum 90-day period of incarceration for the diagnostic study but never officially imposed the penalty in court.
Then let's now turn to the Swiss press release:
In the framework of the extradition proceedings, on 3rd March 2010, the Federal Office of Justice (FOJ) asked the USA authorities to substantiate the extradition request by supplying the records of a hearing carried out on 26th January 2010 by the public prosecutor, Roger Gunson, who was in charge of the case in the seventies. The records should prove that, in a meeting held on 19th September 1977, the judge in charge at the time had expressly assured the representatives of the parties that the 42 days of detention spent by Roman Polanski in the psychiatric unit of a Californian prison represented the whole term of imprisonment he was condemned to. If this were the case, Roman Polanski would actually have already served his sentence and therefore both the proceedings on which the US extradition request is founded and the request itself would have no foundation.
The request of the FOJ to supply the records was rejected by the US Justice Department on 13th May 2010 due to a court ruling, according to which the records had to be kept secret. In these circumstances it is not possible to exclude with the necessary certainty that Roman Polanski has already served the sentence he was condemned to at the time and that the extradition request is undermined by a serious fault. Considering the persisting doubts concerning the presentation of the facts of the case, the request has to be rejected.
Apparently there has been a hearing on January 26, where the DA from 1977, Roger Gunson, has given testimony about a meeting in September 1977 - a month after the plea bargain - where judge Rittenband promised to Polanski that the psych unit detention was to be his whole punishment.
The court proceedings I cited above suggest to me that this hearing has been a result of the January 15 session. It must also be clear to anyone involved that the contents of this hearing could be material to the extradition request to Switzerland. Nevertheless, some court on someone's request decided to that the proceedings of this hearing must be kept secret.
We don't know by whose request. If Gunson's testimony is as is alleged, then certainly not Polanski's, as it would absolve him of further punishment and certainly make the extradition request fail.
If Gunson's testimony was different, it could be a brilliant ploy by Polanski's lawyers to sow doubt to the Swiss so they'd negate the extradition request. However, would then not the US Justice department file a request to overturn the secrecy on grounds of major state interest or some such?
In any case, above all I see the US Justice shooting themselves majorly in the foot by not providing these proceedings. Gunson's testimony affects, as far as we know, only himself, judge Rittenband and Polanski and his lawyers. I can hardly imagine there would be no legal grounds to overturn the secrecy in favour of other judicial proceedings, in this case, the extradition request.
