"I. Information Established by the Documentary Record, 1977-1978
The limited documentary record of the proceedings in this case furnishes little insight into the serious issues presented by this matter. Roman Polanski was indicted by a grand jury in March 1977 on six counts: furnishing a controlled substance to a minor (Health & Saf. Code, § 11380, subd. (a)); a lewd or lascivious act on a child under the age of 14 (Pen. Code,2 § 2883); unlawful sexual intercourse (§ 261.54); rape by use of drugs (§ 261, subd. (3)5); perversion6 (§ 288a, subds. (a) & (c)); and sodomy (§ 286, subds. (a) & (c)7). Polanski initially pleaded not guilty.
The district attorney's office agreed to a plea bargain with Polanski at the request of the family of the victim, Samantha Geimer,8 who was 13 years old at the time of the offense. In light of Geimer's age and fears about the trauma that an extremely high profile trial would cause for her, Geimer's family, through counsel, advocated strongly for a plea bargain to protect her from further harm. On August 8, 1977, Polanski changed his plea from not guilty to guilty on count 3, unlawful sexual intercourse. In the course of his plea, Polanski acknowledged that the trial court would determine whether he would receive a felony or misdemeanor sentence; that his punishment could range from probation, to up to one year in county jail, to 20 years in state prison; and that the judge would not determine Polanski's sentence until he had received a report from the Probation Department and heard the arguments of counsel."
4 This statute has been substantially revised since 1977 [Fassung gültig zur Tatzeit, März 1977]. Were Polanski charged under the current statute, based on his age and the victim's age, he would presumably be charged under current section 261.5, subdivision (d) [jetzt gültige Fassung].
"Without returning to the United States or dropping his battle against extradition, Polanski may, through counsel, request that the trial court conduct the never-yet-held sentencing hearing in absentia pursuant to section 1193. If the trial court approves this request, then Polanski, through his counsel, will be able to obtain the evidentiary hearing that is so urgently required to establish the facts of what occurred in 1977 and 1978. The trial judge now presiding over the matter, Judge Espinoza, has already indicated that at a sentencing hearing Polanski would be able to fully litigate the allegations of misconduct and a prior pledge by Judge Rittenband as to Polanski's punishment: At the same hearing at which Judge Espinoza ruled that he would not entertain Polanski's section 1385 request, he also stated, “[H]aving reviewed all of the evidence in this case, notwithstanding the People's assertion that the misconduct that occurred is still in dispute, there was substantial, it seems to me, misconduct that occurred during the pendency of the case which will be among the many factors that would be considered by me and any other court that would sentence Mr. Polanski. He had a plea agreement31 with Judge Rittenband. Unfortunately, Judge Rittenband is long since deceased, but the terms and conditions of that plea agreement are well known.” While Judge Espinoza has expressed the view that Polanski is required by section 977 and the bench warrant to be present at any proceeding regarding his case, on this record it does not appear that he has ever been asked to release Polanski from that obligation, as he is authorized to do by section 1193." (S.55/56)
As we have already discussed, even without appearing in California courts Polanski may request to be sentenced in absentia. (§ 1193.) While the trial court would have to consent to this request, if it agreed, this would resolve the disentitlement problem that Polanski has encountered in the trial court and would afford him the evidentiary hearing that he so urgently seeks to support his allegations of misconduct. Judge Espinoza has already indicated on the record his opinion that the misconduct alleged by Polanski and the issue of the original trial court's sentencing commitment are relevant to and may be explored at a sentencing hearing. Polanski, therefore, still holds in his hands the potential means to hold the trial court to the commitment it allegedly made to him in 1977. As we have expressed elsewhere in this opinion, if Polanski presents admissible evidence leading the trial court to conclude that Judge Rittenband committed to the diagnostic study as Polanski's entire punishment, it is difficult to imagine that the trial court would not honor that commitment today." (S.57)
"C. The People
We are disturbed by the district attorney's refusal in the briefing submitted to this court to address or consider what appears to be an admission by a former member of the district attorney's office that he: engaged in highly improper ex parte communications with a judge about a pending matter; recommended the misuse of a sentencing tool as a punishment; deliberately provoked the judge against a defendant based on a newspaper photograph and no further information; and pursued a personal agenda against a defendant. Such profoundly unethical conduct, if proven to be true, strikes at the heart of the prosecutor's role as a guardian of systemic integrity. “In all [a prosecutor's] activities, his [or her] duties are conditioned by the fact that he [or she] „is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . [Citations.]” (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266, superseded on other grounds by statute as stated in People v. Conner (1983) 34 Cal.3d 141, 147; see also People v. Dehle (2008) 166 Cal.App.4th 1380, 1388 [it is appropriate for a prosecutor to want to bring a defendant to justice with respect to the charged crime, but a prosecutor is not disinterested if he or she has an axe to grind against the defendant].)
Although the district attorney's office dismisses the allegations concerning the conduct of former Deputy District Attorney Wells with the assertions that “[i]t is unknown at this time whether statements made during a heavily edited documentary reflect actual circumstances, opinions, or exaggerated braggadocio” and that Polanski is not entitled to a hearing on the merits until he returns, the district attorney's office has an interest in ascertaining whether, in fact, one of its former members committed unethical acts interfering with a criminal case. The prosecutor's responsibility to ensure that justice is done (People v. Conner, supra, 34 Cal.3d at p. 148) is not extinguished by a litigant's bad behavior: While Polanski's unclean hands may disentitle him from requesting relief, the need remains to investigate and take appropriate curative action in response to Wells's admissions that he engaged in prosecutorial misconduct in the Polanski matter.
Similarly, although Judge Rittenband's alleged transgressions cannot be attributed to the district attorney's office, former Deputy District Attorney Gunson has declared under penalty of perjury that the trial court engaged in misconduct. “Prosecutors play a dual role in the criminal justice system; they are advocates, but they are also administrators of justice. [Citation.] „“[I]t is their sworn duty to see that the defendant has a fair and impartial trial . . . .”[Citation.]” (People v. Bryden (1998) 63 Cal.App.4th 159, 182.) This role as an administrator of justice should prompt the district attorney's office to internally investigate whether the allegations of judicial misconduct are substantiated and whether Polanski was subjected to unethical and unjust proceedings.
We cannot know what a thorough, neutral investigation may reveal.33 However, if the district attorney finds that the allegations of prosecutorial and/or judicial misconduct advanced by Polanski are substantiated, we expect the district attorney's office both to consider whether to refer former Deputy District Attorney Wells to the State Bar of California for disciplinary proceedings and to seek condign remedies for the misconduct. Should the misconduct be found by the district attorney's office to have tainted the proceedings against Polanski to the point that justice would be furthered by a dismissal of the entire prosecution, the district attorney's office is empowered to and should apply to the trial court for a dismissal of the action under section 1385. Alternatively, if the district attorney's office finds that misconduct occurred after the taking of the plea and with regard to the sentence only, the district attorney's office could request that the court set a sentencing hearing in absentia and that Polanski be sentenced only to time served.
33 The investigation of the alleged misconduct should occur immediately, regardless of Polanski's custody status, because further delay threatens to frustrate the determination of the veracity of Polanski's allegations: The original trial judge has died; the two prosecutors involved in the matter have retired; and the memories of witnesses may lose precision over intervening decades. Moreover, the absence of finality here continues to injure Geimer." (S.61)
"35 Polanski has never had a formal sentencing hearing. His own counsel has observed that Polanski, having pleaded guilty in August 1977, was next scheduled to be sentenced: Dalton declared that September 19, 1977, was the date set for the “Probation Hearing and Sentencing.” We know from the record of that hearing that the court ordered Polanski to undergo the diagnostic study and then to return to court “for further proceedings.” In the absence of the imposition of sentence at the September 19, 1977 hearing—and whatever agreements Judge Rittenband may have made in secret, on the record he did not impose sentence on Polanski—procedurally, the next hearing for Polanski remained, and remains to this day, a sentencing hearing." (Fussnote, S.64)
... We exhort all participants in this extended drama to place the integrity of the criminal justice system above the desire to punish any one individual, whether for his offense or for his flight. (S.67)
Zur Verjährungsfrist nach kalifornischem Recht
Penal Code Section 799-805
Zur Rechtswirkung einer Nichtwahrnehmung eines Gerichtstermins
Penal Code Section 853.7 (bisher keine andern Hinweise gefunden)
Any person who willfully violates his or her written promise
to appear or a lawfully granted continuance of his or her promise to
appear in court is guilty of a misdemeanor, regardless of the
disposition of the charge upon which he or she was originally