In a case that has polarised public passions, director Roman Polanski did not win his freedom yesterday for a 32-year-old sex offence, but an appeals court said in a strongly worded opinion there was probable judicial and prosecutorial misconduct in his case.
The opinion criticised Polanski for fleeing to his native France in 1978 but suggested two legal options that could lead to his freedom now — file a motion to be sentenced in absentia, or drop his extradition fight, return to the United States and be sentenced in person, most likely not resulting in additional jail time.
Polanski wears an electronic monitoring device while under house arrest in Switzerland, where he was arrested as a fugitive when he arrived to attend a film festival in September.
"We encourage all participating parties to do their utmost to ensure that this matter now draws to a close in a manner that fully addresses the issues of due process and fundamental fairness raised by the events of long ago," the court's opinion states.
The California 2nd District Court of Appeal rejected the request for outright dismissal, which was raised by Polanski and the attorney for his victim, Samantha Geimer, who long ago identified herself. But the justices said they were "deeply concerned" about probable misconduct by a now-deceased judge and a retired prosecutor who advised him. They urged further investigation.
The new focus on the case ignited a firestorm of public opinion worldwide. Some angrily called for Polanski to be imprisoned. Others, including some film industry colleagues, advocated for his freedom.
The appeals court faulted Polanski for fleeing the country rather than be sentenced.
"Even in light of our fundamental concern about the misconduct that has been alleged here with significant evidentiary support, flight was not Polanski's only option. It was not even his best option," the decision said.
It said his lawyers should have immediately sought to disqualify the judge and filed other motions to ensure due process. As for his current options, they suggested he can't insist on having everything his own way.
"Polanski is not without any remedy. He is only without the remedy that he prefers: complete release not only from any threat of future punishment, but also from the very charges themselves," the ruling said.
The court supported a ruling by Superior Court Judge Peter Espinoza, who refused to hear Polanski's case without the director's presence. They said that was within the judge's discretion under a doctrine that denies court processes to those who flee to avoid prosecution. They suggested it was also his decision whether to sentence Polanski in absentia if such a motion is made.
Attorneys brought the case back to court after an HBO cable television documentary disclosed alleged misconduct in the case in great detail.
The justices said they watched "Roman Polanski: Wanted and Desired" and quoted extensively from its interviews with David Wells, a retired deputy district attorney who claimed to have secretly advised the late Superior Court Judge Laurence J. Rittenband on what to do in the Polanski case.
"If Wells's account is true, Judge Rittenband was ushered along a path of iniquity by an officer of the court with a personal axe to grind and no hesitation to engage in unethical ex parte communications and devise illegal, nonappealable sentences to circumvent the defendant's due process and sentencing rights," the opinion said.
Wells did not immediately return a phone call from The Associated Press. He has since said he lied in the documentary. Polanski's lawyers, Chad Hummel and Douglas Dalton sent word they would not comment.
"The ruling today by the Court of Appeals is another step in the resolution of the Polanski sentencing," the district attorney's office said in a statement. "We await a decision by the Swiss courts on his extradition to Los Angeles so all issues can be resolved by the Superior Court."
The 70-page ruling was written by Associate Justice Laurie Zelon who had questioned a prosecutor during oral arguments about why the office had not investigated the recent claims of misconduct.
The justices returned repeatedly to the passage of time, calling it "one of the longest-running sagas in California criminal justice history."
"The passage of more time before this case's final resolution will further hamper the search for truth and the delivery of any appropriate relief, and it will also prolong the agony that the lack of finality in this matter continues to cause Samantha Geimer," the ruling said.
The justices noted they were identifying the victim because she long ago identified herself in public.
Polanski, who was famous then as the director of "Chinatown" and "Rosemary's Baby," also saw his name in headlines in one of the nation's most gruesome tragedies in 1969, the murder of his wife, actress Sharon Tate, and six others by the notorious Manson family.
The story became a sensation with its Hollywood trappings.
Polanski was accused of plying the teen with champagne and part of a Quaalude pill, then raping her during a modeling shoot at Jack Nicholson's house in 1977. Polanski was initially indicted on six felony counts, including rape by use of drugs, child molesting and sodomy. He later pleaded guilty to one count of unlawful sexual intercourse in a plea bargain. He was sent to prison for a diagnostic study. The judge, who had promised no further jail time, reneged and was planning to sentence him more harshly.
Apparently addressing the public condemnation of Polanski's acts and calls for tough penalties, the appeals court said: "Fundamental fairness and justice in our criminal justice system are far more important than the conviction and sentence of any one individual."
The appeals justices are the second court to raise concerns about Polanski's treatment. Espinoza said earlier this year there appeared to be "substantial misconduct," but that Polanski had to return to the United States to argue for the case to be tossed out.
Loyola University Law Professor Stan Goldman said Polanski most likely would have to return to the United States to have the matter resolved, even though he might be sent to jail at first.
"But it would be relatively brief and the the court is suggesting he would be free," Goldman said.