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At a public hearing yesterday in Los Angeles County Superior Court, Chad Hummel, the lead defense attorney in Roman Polanski’s criminal matter, wanted it known that although he had recently asked for an in-chambers meeting to confer about one particular issue of “great sensitivity,” he had never suggested anything else shouldn’t be discussed in open court.
Judge Peter Espinoza didn’t seem to regard the issue as all that sensitive, and revealed Hummel was alluding to a witness who soon might become unavailable to testify. Other than Espinoza suggesting the unnamed person’s testimony could be recorded “for posterity,” thus dismissing Hummel’s contention that an evidentiary hearing needs to be scheduled as soon as possible, nothing else was mentioned about the mystery witness before court was adjourned.
Later I spoke with Larry Silver, the attorney for Polanski’s victim, Samantha Geimer, who confirmed the mystery witness is “gravely ill.”
In general, Silver seems much more forthcoming than Hummel or Hummel’s co-counsel, Douglas Dalton (Polanski’s 1977 lawyer, still part of the team) and Bart Dalton (Douglas’s son). Silver told Larry King in 2003 that Laurence Rittenband, the controversial, now-deceased judge who originally presided over the case, had not only reneged on a plea deal, but had informed the lawyers he was going to give Polanski the maximum sentence:
“Well, what the judge did was frankly outrageous. We had agreed to a plea bargain…And then frankly the day before he called us in the chambers and said he was getting a great deal of pressure and…was concerned about criticism of him in the press. And he was going to sentence Polanski rather than to time served, which is what we agreed to, to 50 years. That’s a long — big difference… And he told us other things. He directed Mr. Dalton, Polanski’s lawyer, to say certain things during court. He directed the prosecutor, Mr. Guncin [sic], to say certain things the next day. Directed me to do things. This is unheard of.”
Marcia Clark, best known for her unsuccessful prosecution of OJ Simpson, is another person who appreciates how the maximum sentence is a vital consideration for anyone who pleads guilty, and how important it is to make sure at a plea hearing that such a defendant understands the potential consequences he or she is facing. In a recent article she wrote for The Daily Beast, Clark said Polanski is a dead duck because of how explicitly and thoroughly he had been informed of the time he could be forced to serve for his confessed crime.
Clark insisted Polanski “knew the sentence he was facing…Twenty years in prison–or zero…Polanski knew the entire range of sentences he faced…Few defendants were ever more thoroughly warned of the sentence they faced and the power of the judge to impose it as Roman Polanski.”
That’s some recognition! According to Clark, Polanski was one of the most well-informed defendants in the history of jurisprudence.
As anyone who peruses the transcript of Polanski’s testimony can see, the questioning was indeed extensive and seemingly scrupulous. But Clark’s reasoning is nonetheless severely flawed, because Polanski actually misstated what the maximum sentence was, and nobody in the courtroom mentioned it at any time during the plea hearing. Moreover, no attorney or judge who is or was connected with this never-ending case, has ever publicly acknowledged the glaring and major discrepancy between what Polanski believed he faced, and what he really faced.
When she thought it represented a nail in Polanski’s coffin, Clark emphasized how exhaustively the defendant had been schooled about the potential duration of his confinement. Now that her misinterpretation has been disclosed, let’s see how long it takes Ms. Marcia to issue a statement saying Polanski’s guilty plea is invalid because he was not advised of his punishment. Doing so would kind of kill the whole premise of her article, but I have a feeling Clark already cashed the check Tina Brown gave her for the privilege of publishing the famous prosecutor’s valuable analysis.
Because Papa Dalton is still on the case, Polanski’s dream team might not be eager to call attention to the now elderly attorney’s possible failure to properly advise his client in 1977. But Silver told me he agrees the issue constitutes “possible grounds for withdrawing the plea.”
As I’m not really sure whether it would help or hurt Polanski for his plea to be withdrawn, it was only in the interest of justice I passed a note to Judge Espinoza yesterday via the court clerk who later confirmed she gave it to him. Above my name and phone number I had written:
Judge Espinoza,Polanski testified at his plea hearing that he believed the maximum sentence was 20 years, even though it was really 50 years, and nobody corrected him.
I leave it to you to judge the significance of this issue.
The issue is significant, which is why the Federal Rules of Criminal Procedure prohibit a judge from accepting a guilty plea without informing the defendant of the punishment he or she faces. Rule 11 states: “Before the court accepts a plea of guilty…the court must inform the defendant of…any maximum possible penalty, including imprisonment, fine, and term of supervised release.”
Although Rule 11 applies to only federal courts, the same principle applies to all plea hearings in all courts. That is, the defendant must know what could happen as a result of pleading guilty.
It’s only basic fairness, and the principle isn’t normally even open to question. But when it comes to Polanski, it somehow doesn’t even exist.
Court opinions which directly address the importance of verifying a defendant understands the consequences of pleading guilty, can be viewed here and here.
Hummel yesterday handed the judge a letter from Polanski asking to be sentenced in absentia. A hearing on that request is scheduled for Jan. 22.
Will Judge Espinoza be the first jurist in over 32 years to affirm it matters that nobody said a word when Polanski testified, incorrectly, his maximum sentence was only 20 years?
Jeff Norman is the Director of The Veterans Project, a non-profit group that promotes and supports organizations that help veterans – primarily those who fought in Iraq and/or Afghanistan – reintegrate into society when they come home. Its mission is to help remove the stigma associated with post-traumatic stress, and to raise operating funds for organizations providing psychological care and job training to veterans in the aftermath of war. He blogs at Citizen Jeff. He can be reached at jeff@citizenjeff.com.
Marsha Clark is the stupidest woman who ever lived, who was paid millions to lose the O.J. Simpson murder trial. But in America incompetent prosecutors are treated as heroes.
As for the Polanski case, it should have been dropped decades ago. This is ridiculous.
Sorry might be misreading your text, but all the legal jargon reads as if Espinoza is acting out of pure spite and vindictiveness. same might be true for others in the process that have some major anger issues because not of the crime, but because of the art. And maybe even not his (the defendent) but others, the many other artists who used his technique or concepts in their work. In a sense using him as a proxy war between two guards. It is completely false that he was informed of anything at all, he might have been in pure survival mode. But surely the judicial staff is showing their true nature, using him to extract information about who know what. Against such a disgusting background, how can there even be pretense of a fair trial? It’s all a waste of time, a bunch of leaches on all sides, compromise of the swiss-american diplomatic stability, and a huge financial burden on California, a states far too endebted to gamble.
It’s great you’re covering the trial.
California Courts are the slimiest chambers on the continent.
He might be refering to the prizes the judges and prosecutors thought they were gonna get if a) they gave the most extreme punishment ever b) while making a mockery of the process of justice. As if it’s a game, a point of pride to get away from planted errors. Pardon the worst and crush the least. Prizes like awards to society, memberships, Scalia’s lap, key to the grove, bohemian bonfires, and lures that had nothing to do with Polanski whatsoever, only, because of his entourage, and his films, they assumed he was one to crush. All at taxpayer expense of course.
This is lore. The law doesn’t have to be so petty.
It is ironic that no-one but Samantha Geimer testified decades ago — and neither she, nor her mother (who, I believe, was perfectly aware of her daughter’s sexual activities, and was, in a sense, ‘pimping’ her daughter as being older by allowing her to accompany Reb Polanski), were ever cross-examined by Reb Polanski’s legal team. With all due respect to Ms Geimer — because of her active support in having the matter dismissed and believing Reb Polanski’s apologies to her — why hasn’t there been an effort to cross-examine her mother? I believe the activities of the DA’s office smacks of antisemitism, as do the self-righteous complaints from mediasaurs (most of whom can barely phrase a sentence without moving their lips). How many of the mediasaurs have active sex with teen-agers they either pay for or are their mistresses or their S&M masters? I grew up in LA in another lifetime, and know full well the hypocrisy (and functional illiteracy) of type writers who pose as ‘journalists’.
STEPHAN PICKERING / Chofetz Chayim ben-Avraham
The rich always get a pass in cases like this. Drugging and raping a child is a minor inconvenience for a hollywood genius.
Antisemitism? Whether Roman Polanski is a Jew or a Zoroastrian, he plied an 8th-grader with booze and a dangerous drug then raped and sodomized her. Bottom line. All the lame “intellectual” excuses in the world won’t change a thing. And since the “taxpayers” favor holding Polanski accountable by an overwhelming margin, don’t worry about how much it costs. It’s their money.