Looks like Polanski will get away again.
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DC
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yes i have
Silly Green Monkey
Cowardly Lurking in the Shadows of Greatness
I've not, what are the specifics?
It's interesting that you bring this up in the example. If you read the treaty under discussion here, you will note that in fact an extradition is only possible when the crime under consideration is a crime in both countries. This is pretty standard.
So, assuming the Netherlands extradition treaty is equivalent, in fact the Netherlands would not extradite for drug and prostitution crimes.
You appear to believe that an extradition treaty is entirely about the law of the requesting country. In fact, the extradition treaty is about extending the arm of the law in situations where the laws of both countries actually match.
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DC
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I posted a link to it a bit earlier in this thread.
The swiss have latched on a technicality to keep a predator free and give the finger to the USA. Shameful.
And that is why the Swiss were trying to process the extradition, the type of crime Polanski is guilty of is obviously also a serious crime in Switzerland.
(Just a speculation but I would be surprised if the Swiss officials were not disappointed that because of the USA actions they couldn't extradite him so he could face justice.)
What is the nature of this technicality?
Failure of the prosecution to provide anything other than their unsupported word.
QFT. In this case, the problem is that the laws match (which is why the Swiss bothered to have the extradition hearing in the first place, instead of simply telling the US to bugger off as they historically have done with cases of suspected tax evasion), but the procedures don't. There are procedural safeguards in place in Switzerland to protect the rights of the accused from being tricked into a bait-and-switch plea bargain, safeguards that do not exist in the United States.
... and that's more or less exactly what Polanski is claiming happened.
Under "normal" circumstances (if this weren't such a high-profile case), I suspect that the case would have ended there. The Americans on this thread seem pretty unanimous that, yes, American law does not provide equivalent safeguards. That means cases of this sort are unfair under Swiss law and no extradition should be expected. The extradition hearing should have taken about twenty minutes and resulted in a quick and simple "no."
If the Swiss had really "not wanted" to extradite him, it would have ended there. Hell, if they really didn't want to extradite him, they could simply have made a statement that "we find that extraditing Mr. Polanski is not in the Swiss national interest" and that would have closed the file.
As far as I can tell, the Swiss were bending over backwards to permit the United States ample opportunity to rebut Polanski's claims (with evidence), or failing that, to give an undertaking that the Swiss procedural safeguards would be respected in this case (i.e. that the plea bargain would be respected in this case even if it wasn't "binding").
The United States decided -- unilaterally -- that it did not want to provide the necessary rebuttal evidence and that it wasn't willing to give the undertaking.
ingoa
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If this does not make some people understand the issues, nothing else will.
Thumbs up!
Any simpler explanation would require the use of cartoon figures and one syllable words.
ZirconBlue
Sole Survivor of L-Town
If we still have an extradition treaty in place with Drkittenia, then I have to say yes. (Of course, we shouldn't have a treaty with such a country, and this would be a good opportunity to back out of that treaty.)
Does the UK has extradition treaties with any countries that have such laws?
That's interesting. Thank you for the correction.
Well, I'm talking about how, in my opinion things should work, not how they are currently set up. Basically, I think that if you sign an extradition treaty with another country you should, in general, have trust in that country's legal system. If there are specific cases where you won't extradite - such as death penalty cases, then that should explicitly be spelled out. But, a blanket, "we can question anything and everything" clause is not appropriate, in my opinion.
And, again, I acknowledge that we did agree to this treaty, and it is therefore binding.
I'll have to give that some more thought, and withdraw that portion of my post.
But, in this particular case, it's not a question, since the act is a crime in both countries.
I would be surprised if we didn't, although not the example I used but I know we do have an extradition treaty with the USA but we won't (and legally can't) if there is the possibility of the death sentence being imposed extradite someone under the the treaty.
To expand on this the UK has an extradition act that provides the framework for extraditions, see: http://www.opsi.gov.uk/acts/acts2003/en/ukpgaen_20030041_en_1.htm for more details.
The bathwater-to-baby ratio of that answer is a little high.
Remember that if you back out of the extradition treaty, then you won't be able to get any extraditions. So you'll essentially establish Drkittenia as a haven for US criminals -- any drug dealer or tax dodge who can get a visa to Drkittenia will be safe from US prosecution forever, no matter what kind of case you can present.
On the other hand, if you try to extradite, the defendant is quite likely to be able to sue to prevent extradition under the US constitution; even if he doesn't win, the political fallout will be unpleasant.
Your Secretary of State begs to point out that it took a hell of a lot of work to get the extradition treaty in place in the first place, and that it's quite acceptable to simply say "no" on a case-by-case basis.
Yes. Examples include Brunei, Malaysia, and Botswana.
Well, that's not how diplomacy works. In practical terms, it's not how diplomacy can work. Negotiating an actual treaty is a hell of a lot of work and not to be undertaken lightly; on the other hand, laws governing crimes and criminal procedures can and do change in a day. The extradition treaty between Switzerland and the United States is something like 30 years old. We do, in general, have trust in the Swiss legal system (and vice versa), but that doesn't mean that all the minutiae line up.
If you had to explicitly spell out every possible difference between Swiss law and US law, the treaty would be thousands of pages long,.... and out of date before the Senate finished ratifying it.
Instead, what treaties typically do is establish a framework for extradition, and each case is examined individually. Normally it's no problem to establish that the defendant, for example, received an American trial that the Swiss would have considered to be fair. If there is any question, the Swiss will investigate as far as they need to to make sure whether this particular case involved any elements that the Swiss would consider dodgy, unfair, or unjust. And the treaty provides for exactly that possibility by allowing them to ask for whatever information they need.
Especially since most of the time these minutiae don't come up. In the absence of the plea bargain, this would have been an open-and-shut case for extradition. But the plea bargain introduces an element that would have been controlling under Swiss law, and that the US is not willing to deal with in a manner the Swiss find appropriate.
No. No treaty is ever binding; the Swiss can simply say "Huh. Funny old world. Sucks to be you, nicht wahr?" But what the treaty did say is that if the Swiss need more information to make their decision, the US will provide it. If the US fails to provide the information, the Swiss have correctly opted not to extradite.
ddt
Mafia Penguin
For anyone curious, here is the prosecution's reasoning for opposing the release of the sealed testimony. It is very detailed
You really should have advertised that more, because it's more than that. It contains the transcript of the 19 September 1977 court session, where the recent (sealed) testimony of Gunson was about. After reading that, I'm a bit at a loss why the Swiss authorities would need Gunson's testimony.
For who is interested in reading through that, it contains:
- pp. 1-14: the 6 May 2010 request of LA County DDA Walgren to keep Gunson's testimony sealed;
- pp. 15-31: a 9 October 2009 affidavit of the same Walgren in support of the extradition request;
- pp. 32-49: the transcript of the 19 September 1977 court session;
- pp. 50-51: two recent newspaper clippings.
Walgren's affidavit gives an overview of the facts in the case, and explanation of the legal ramifications.
The timeline of (legal) events in 1977/8 that emerges is as follows.
10 March 1977: Polanski commits his crime(s) against Samantha Gailey (now Geimer), and is arrested the next day.
24 May 1977: a Grand Jury indicts Polanski on 6 counts.
8 August 1977: plea bargain by Polanski on 1 count, unlawful intercourse with a minor, California Penal Code 261.5. Transcript here. Judge Rittenband orders a report from the Probation Office and "outpatient evaluation" by two court-appointed psychiatrists, Doctors Davis and Markman - they are to determine specifically whether Polanski is a Mentally Disordered Sex Offender.
19 September 1977: court hearing. The reports of Davis and Markman (2 resp. 3 pages) advise that Polanski is not Mentally Disordered Sex Offender. Judge Rittenband goes along with that. As to the sentencing, the Probation Office report recommends probation. Dalton, Polanski's attorney, also pleads for probation. He claims that in 1976, none of the 44 people convicted of this in LA County have gone to State Prison. DDA Gunson pleads that Polanski should do time, without specifying how much. Judge Rittenband mentions that Penal Code 264 sets a maximum sentence of 1 year (sic) in County Jail or State Prison. He decides on the psychiatric evaluation pursuant to Penal Code 1203.03, clearly stating:
In other words: the study is clearly not the sentence, but a means to advise the Court on sentencing. The 90 days is only an upper limit on the length such a study can take.
Dalton asks for a 90 days stay before the study begins because Polanski is working on a film and this would inconvenience hundreds of coworkers. Rittenband grants the stay.
16 December 1977: Polanski checks in at Chino Prison for the psychiatric evaluation and is released 42 days later (27 January 1978). The report recommends probation.
30 January 1978: Judge Rittenband meets with parties and expresses dissatisfaction with the report. He wants Polanski to do time. Dalton asks for a 2 days stay.
1 February 1978: instead of appearing in court, Polanski flies to the UK and from there to France.
What happened on 8 August and 19 September is supported by official transcripts. That Polanski completed the psychiatric evaluation is not in dispute; nor that he should have appeared in court on 1 February and fled.
What happened on 30 January 1978 is not completely clear. It's not even clear from the various renderings whether this was an open court session or happened in chambers. All parties involved - including Silver, Geimer's attorney - agree that the judge wanted to have Polanski do time. This is also probably the reason he ordered the psychiatric evaluation in the first place: at the 19 September session, the probation report recommended probation only, and IIRC, the 2 psychiatric reports also recommended against jail time.
Silver stated on Larry King that Rittenband threatened with a 50 year sentence. This LA Times article says that Rittenband wanted Polanski to do 48 days, i.e., the time the psychiatric evaluation had fallen short of its possible maximum. Other accounts, e.g., that of Wells, the DA who lied about himself having influenced Rittenband, suggest also that Rittenband somehow regarded the psychiatric evaluation as part of the punishment.
As to the possible sentencing, there are conflicting accounts. Rittenband said in the 19 September session the maximum sentence is 1 year. Walgren's affidavit says that prior to 1 July 1977, the maximum sentence was 50 years. However, the statute was changed on 1 July 1977 and changed the maximum sentence for crimes committed before 1 July into 2 years.
However, the reason given by the Swiss pertains specifically to what happened on 19 September:
However, the transcript of the open court session of 19 September makes it crystal-clear that Judge Rittenband did not order the psychiatric evaluation as a sentence, but as a study to help in sentencing. Rittenband did not give assurances, in open court, that he would follow the recommendations of the psychiatric evaluation unreservedly.
The only way I see that this could be true is if Rittenband did indeed give such assurances to counsel in chambers. Silver, Geimer's attorney, stated on Larry King that Rittenband liked to perform plays with counsel, instructing them to state things in public while he already had made up his mind.
DC
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Polanski or his lawyers told the swiss authorities that on a hearing on 26. Februar 2010, it was made clear that it was assured to Polanski that the 42 days is all the jail he gets. If that is true, that would mean that he has no jail time left anymore, and thus an extradition would be unlawful. Thus the swiss requested the protocol of said hearing to check if that is true. as the USA denied that protocol, the swiss authorities had no other choice as to deny the extradition request.
ddt
Mafia Penguin
Yes, I quoted that. It was alleged that DDA Gunson, the prosecutor in 1977, had testified on 26 February 2010 that Judge Rittenband had assured to parties on 19 September 1977 that that psychiatric evaluation would be all.
On 19 September 1977 there was an open court session. I - or rather ARubberChickenWithAPulley - gave a link to the transcript of that session. The transcript makes it crystal clear that the psychiatric evaluation was not ordered as a punishment, but as a means to determine punishment.
I would be surprised if the US DOJ had been so stupid not to put that transcript in the paperwork of the extradition request.
Certainly, the Swiss court system also has such psychiatric evaluations that advise the judge in sentencing. I'm not acquainted with Swiss legal matters, but I can imagine that legal matters proceed differently. For instance, in Holland such psychiatric evaluations are typically performed during pre-trial custody. Holland also makes no difference between the guilty/non-guilty verdict and sentencing, that's one - whereas in the US, those are two stages.
One scenario I could envisage that makes the request for Gunson's testimony relevant is the following. Before the 19 September court session, Rittenband calls DA Gunson and lawyer Dalton into chambers. He says to them: "guys, I'm not content with only probation. I'm gonna order a psychiatric evaluation. But rest assured, after that it will be over. Now let's go into the courtroom, and put on your show as if you had heard nothing here."
From the accounts we've read about Judge Rittenband's behaviour, that could be the case.
However, the press communiqué as released by the Swiss authorities does not give details as to when Rittenband allegedly gave these assurances.
Do you have a link to the official verdict on the extradition by the Swiss authorities?
ddt
Mafia Penguin
As others already mentioned, extradition is only done for acts that are considered a crime in both countries. Extradition from the Netherlands for prostitution would therefore fail, as that is not a crime here. Drug possession is a crime in the Netherlands, but then you bump into another standard proviso in extradition treaties: the sentence must be more or less the same. So, the Netherlands is unlikely to extradite someone to, say, Thailand, for drug possession as the sentence would be much higher there - or for that matter, in any case for possession of 25 grams weed, as that is still a crime in NL but not prosecuted.
As to the death penalty, earlier discussed: the landmark case in extradition from Europe to the US is Soering vs. UK. It also established that assurances of the US federal DOJ are not enough, but that the US state that is to be judging the extraditee - in Soering's case, Virginia - has to give assurances it will not seek the death penalty.