Polanski’s attorney seeks dismissal

Calls case an 'astonishing record of misconduct'

An attorney for Roman Polanski sought a dismissal of the 32-year-old case on Thursday, telling the California state Court of Appeal that such an action is warranted because of “a remarkable, astonishing record of misconduct” on the part of the judge back then.

The three-judge panel in the state Court of Appeal in downtown Los Angeles did not issue a ruling, but their decision could come before Polanski’s extradition or before it makes it way through Swiss courts.

Polanski was arrested in Switzerland in September, but was released to his Swiss chalet on bail last week pending extradition to the United States. The case stems from accusations that Polanski raped a 13-year-old girl during a photo shoot in 1977.

Having originally faced six felony counts, Polanski pled guilty to a lesser charge of unlawful sexual intercourse with the girl, and he was sent to prison for a 90-day evaluation by a psychiatrist. He was released after 42 days, but the judge in the case, Laurence Rittenband, was ready to send the director back to jail to serve the remainder of the sentence. Polanski, however, fled the country before he was to face formal sentencing on Feb. 1, 1978.

A 2008 HBO documentary, “Roman Polanski: Wanted and Desired,” raised new questions about Rittenband’s conduct and fairness, suggesting that he was coached by a prosecutor and engaged in other indiscretions. Rittenband died in 1993.

Even before Polanski’s recent arrest, as he was on his way to the Zurich Film Festival, his attorneys had sought a ruling before a lower court to have the case dismissed, citing the documentary and other evidence. But in May, Los Angeles Superior Court judge Peter Espinoza, while acknowledging that it was “hard to contest” some of the claims made in “Wanted and Desired,” ruled that he could not throw out the conviction without Polanski’s presence in the courtroom.

One of the questions asked by justices of the Court of Appeal was why Polanski back in 1978 sought no other remedy than to flee. Presiding justice Dennis M. Perluss suggested that the idea that “no one in the L.A. court system was ready to follow the rule of law” was a “leap” to make in this case.

Chad Hummel, Polanski’s attorney, acknowledged that such a question “needs a hearing,” but that Polanski and his attorneys back then “could not have exposed the extent of the misconduct if he had asked for a hearing in 1978.”

“Was there a realistic alternative at the time? I don’t know,” Hummel said before the justices and a crowd of about two dozen members of the media. Also present was Jeff Berg, Polanski’s agent.

In defending Espinoza’s refusal to dismiss the case, the Los Angeles District Attorney is relying on a legal doctrine called “fugitive disentitlement,” which says that defendants who flee the law cannot then seek relief from the court.

Deputy District Attorney Phyllis Asayama said “fugitive disentitlement” was a “100-year-old doctrine for which this defendant fits.”

“Do we say to everyone that flight is an option?” she asked. “I think not.”

She also argued that the reasons for Polanski’s flight were “secondary” to the fact that he is not present for a hearing. “He has to be here, especially in an instance like this,” she said.

The victim, Samantha Geimer, now 45, has since gone public and has repeatedly argued that the case should be dismissed, wary of all of the new attention focused on her. Her attorney, Lawrence Silver, argued that state Proposition 9, passed last year, gives victims more rights and say in the disposition of a case and provides for “privacy and dignity.” “People don’t necessarily like to spend their days in court,” Silver said.

Geimer sued Polanski more than 15 years ago, and the director settled the suit for a reported $500,000 in 1993.

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