The Best American Crime Reporting 2010 (15 page)

Late in the fall of 1976, French
Vogue
asked Polanski to guest-edit its Christmas edition. He took Kinski to the Seychelles and used photographs taken of her there in the issue. He then secured an assignment from
Vogue Hommes
, also based in Paris, to shoot a feature on adolescent girls, to “show girls as they really were these days—sexy, pert, and thoroughly human,” he wrote in his autobiography.

Polanski headed to Los Angeles, where he was preparing to direct an adaptation of “The First Deadly Sin,” a novel by Lawrence Sanders, concerning a serial killer. He mentioned the
Vogue
assignment to a friend, Henri Sera, who suggested that the younger sister of a woman he was dating might make a good subject. This tip led Polanski to make an appointment to meet Samantha Gailey and her mother at their home in the suburb of Woodland Hills, on February 13, 1977. During the visit, Susan Gailey, a divorced actress who had played small roles in “Police Woman” and “Starsky and Hutch,” did most of the talking. Also at the meeting was Susan Gailey’s boyfriend, who was an editor at
Marijuana Monthly
. As Gailey later testified before the grand jury, Polanski showed her the
Vogue
Christmas issue and explained that his current project was to feature “young girls seen through his eyes and possibly an interview.” Gailey recalled telling Polanski that her daughter was thirteen, “because I thought maybe she was too old. I thought he might want younger girls.”

A
LTHOUGH THE LEGAL CASE
involving Polanski remains controversial and unresolved, the underlying facts are largely undisputed. Except for a few specific details, what happened between Polanski and Samantha Gailey is pretty clear.

At that first encounter with Samantha, at her home, Polanski claims to have been “disappointed” because she was “a good-looking girl but nothing sensational.” Still, Polanski arranged to return a week later to take some photographs of Samantha. He arrived at about 4
P.M.
on February 20th; Susan had laid out a selection of clothes that the girl might wear. Polanski said at first that he wanted to shoot in Benedict Canyon, but, concerned with the fading light in the late afternoon, he agreed with Susan’s suggestion that he go to some scrubby hills just behind the Gailey home. Susan asked to go along—so that she could take her own pictures—but, she testified, “He said, No, that he would rather be alone with her because she will respond more naturally.”

Polanski selected some clothes and drove Samantha to a hillside near her home. They walked and Polanski started taking pictures. He took a number of shots of her in different shirts and then, according to Samantha’s grand-jury testimony, “He said, ‘Here, take off your top now.’” She did, and they finished the session at about six-thirty in the evening, after Polanski had shot about two rolls of film. “She had nice breasts,” Polanski wrote. “I took pictures of her changing and topless.” Samantha did not tell her mother about the topless photos. When they returned to the house, Susan’s boyfriend gave Polanski several issues of
Marijuana Monthly
to give to Jack Nicholson, in the hope of obtaining an interview with him.

Polanski then flew to New York to do research on police procedures for “The First Deadly Sin.” When he returned to L.A., he made an appointment to see Samantha on March 10th. Polanski again arrived in the late afternoon, greeted her mother, and drove off with Samantha. They went first to the home of a friend, the actress Jacqueline Bisset, who lived on Mulholland Drive, in the Hollywood Hills. They took about fifty pictures, but the light was fading, and there were several guests on the premises. So Polanski called Jack Nicholson’s house, on the other side of Mulholland. He reached Helena Kallianiotes, a professional belly dancer who worked as a caretaker for Nicholson as well as for Marlon Brando, who owned the compound. She told Polanski to come over.

Kallianiotes let Polanski and Samantha in, then chatted with them in the kitchen. Samantha said she was thirsty. Polanski poured glasses of Cristal champagne for the three of them. Kallianiotes left, and Polanski began taking pictures of Samantha sipping the champagne. “I just kept drinking it for pictures,” she testified. Polanski again asked her to pose topless, which she did. “We weren’t saying much now, and I could sense a certain erotic tension between us,” Polanski wrote. Samantha dialled her mother, at Polanski’s request, and he told Susan that they would be later than expected. Susan also spoke to Samantha, who told her that she was fine.

After the phone call, Polanski asked Samantha to pose in Nicholson’s outdoor Jacuzzi. Polanski produced a yellow pill container with a quaalude broken into three parts. When he offered Samantha part of the pill, she hesitantly accepted. “I think I must have been pretty drunk or else I wouldn’t have,” she testified. (Polanski does not mention the pill in his book.)

Samantha removed all her clothes, except for her underwear, before entering the Jacuzzi. “I was ready to get in and he said, ‘Take off your underwear.’ So I did and then I got in,” she testified. Polanski took more photographs of her, then removed his clothes and joined her in the Jacuzzi. When Polanski moved toward her, Samantha said she wanted to get out because her asthma was acting up. (This was not true; she’d never had asthma.) “I had to get out because of the warm air and the cold air or something like that,” Samantha testified that she had said. She also said that she wanted to go home. Polanski wrote that “she said she’d stupidly left her medication at home.” He encouraged her to join him in Nicholson’s swimming pool instead, which she did. After a few moments, she left the pool and went inside to the bathroom.

At this point, Gailey’s story and Polanski’s diverge somewhat. She told the grand jury that he approached her in the bathroom “and told me to go in the other room and lie down.” She went into the room, then asked again to go home. He said he would take her home later. He began kissing her, and then began performing oral sex on her. “I was ready to cry. I was kind of—I was going, ‘No. Come on. Stop it.’” In light of the champagne and the quaalude, Samantha said, “I was kind of dizzy, you know, like things were kind of blurry sometimes…. I was mostly just on and off saying, ‘No, stop.’”

Polanski began having intercourse with her and asked whether she was on the pill (she said no) and when her last period was (she couldn’t remember). Polanski said, “‘Oh, I won’t come inside of you then,’…then he lifted up my legs farther and he went in through my anus,” despite her saying that she didn’t want him to. Samantha said she did not fight back physically, “because I was afraid of him,” though she continued to ask him to stop.

In his book, Polanski described the sexual encounter this way: “We dried ourselves and each other. She said she was feeling better. Then, very gently, I began to kiss and caress her. After this had gone on for some time, I led her over to the couch. There was no doubt about her experience and lack of inhibition. She spread herself and I entered her. She wasn’t unresponsive.”

While Polanski and Gailey were in the bedroom, Anjelica Huston, Nicholson’s girlfriend, arrived at the house. Soon after, Polanski and Gailey made an awkward departure—“I didn’t mention making love in the TV room, though that must have been pretty obvious,” he wrote. Samantha had hurried out before he did. “I was sitting in the car and I was crying,” Gailey testified. According to Polanski, Samantha “talked a lot during the drive home” and mentioned that she was studying “A Midsummer Night’s Dream” in school. “I tried not to wince when she started spouting Shakespeare in a strong Valley accent.” Before they reached the Gailey home, she testified, he said to her, “Don’t tell your mother about this, and don’t tell your boyfriend either…. This is our secret.”

Inside the house, Susan Gailey thought that her daughter was “weird looking.” Samantha told her, out of Polanski’s earshot, that she had invented a case of asthma, and then hastily retreated to her bedroom. Polanski showed Samantha’s mother and her sister, Kim, the photographs from the first session, on the hillside. When they saw Samantha topless, the atmosphere in the room turned tense. According to Susan’s testimony, “Kim stepped back. And I kind of stepped back. And the dog peed on the floor and Kim went for the dog and threw her out. And she doesn’t do that. It must have been some kind of energy thing happening.” (After the dog’s accident, Kim testified, “Roman gave me a big speech on how to take care of dogs.”)

Samantha’s boyfriend came over later that night, and she told him what had happened. Kim overheard them, and informed Susan. Enraged at the news, Susan Gailey called the police. The police arrived after 11
P.M.
and took a statement from Samantha, and then took her to a hospital, where she was examined. By the following evening, Vannatter had placed Polanski under arrest.

O
N THE NIGHT OF
P
OLANSKI’S ARREST
, his entertainment lawyer helped arrange his release on bail of twenty-five hundred dollars. The lawyer then quickly hired Douglas Dalton to take the criminal case. Dalton’s representation of Polanski is now well into its fourth decade.

Once one of the most prominent lawyers in Los Angeles, Dalton has not practiced for years. “I turn eighty this year, and I’ve been retired for ten years,” Dalton told me, as we sat in front of the fireplace in his Tudor-style mansion, near Hancock Park. “But I’ve kept my law license active for this one case, just because I feel what happened to Roman was so wrong. The system was totally out of control.”

Polanski’s arrest, on March 11, 1977, set off what was usually described as a media frenzy, even if the press reaction seems almost quaint when judged by the standards of the cable-news and Internet era. Crowds of photographers greeted Polanski at his court appearances, and Johnny Carson made jokes about him (“Close Encounters with the Third Grade”). But, by and large, Dalton was free to build his best defense—and, at least initially, to use Polanski’s celebrity to his advantage. “We investigated this case and expected it to go to trial,” Dalton told me.

The early signs were not promising for Polanski. Samantha Gailey’s grand-jury testimony, which she gave on March 24, 1977, laid out a damaging case against him. On the issues of drugs and coercion, Vannatter’s investigation established important points of corroboration. Undeveloped photos in Polanski’s camera showed Gailey in Nicholson’s Jacuzzi, and her drinking champagne. A pill bottle found in Polanski’s hotel room featured a prescription for quaaludes. Gailey’s concoction of the asthma attack, which Polanski acknowledged, suggested that she was trying to escape from him. Anjelica Huston also agreed to testify for the prosecution.

But the Polanski defense had options, particularly at a time when rape cases were treated in different ways than they are now. In her grand-jury testimony, Gailey acknowledged that she was not a virgin (she had had sex twice with her boyfriend, who was seventeen) and that she had once accidentally taken a quaalude. California had a rape shield law, which would have limited what Gailey could be questioned about on the stand, but it wouldn’t have protected her entirely from public scrutiny. That process had begun. Dalton told the press, “The facts indicate that before the alleged act in this case, this girl had engaged in sexual activity…. We want to know about it, we want to know who was involved, when. We want to know why these other people were not prosecuted. And this is a thing we want to fully develop.” Likewise, the character and behavior of Susan Gailey might have come into play in a trial. Susan could have been portrayed as a neglectful parent who, in essence, offered up her daughter in order to ingratiate herself with a famous director. In the climate of the time, it mattered little that attacks on Samantha and her mother might not have been relevant (or true); rape defendants had been acquitted with less.

Samantha’s father, who was a lawyer, lived in another state, and he arranged for her to be represented by a Los Angeles attorney named Lawrence Silver. (Silver, who is still her lawyer, did not respond to requests for comment.) He allowed Gailey to give testimony before the grand jury (which is a closed proceeding), but, mindful of the fate that often awaited rape victims, he did not want her to have to appear in a public trial. Dalton artfully leveraged Silver’s concern for Gailey into a critical advantage for Polanski.

Throughout the spring and summer of 1977, Dalton and the prosecutors skirmished over access to evidence (Gailey’s underwear was cut in half, so that both sides could test it) and other procedural issues. Any notion of a plea bargain stalled when the government insisted that, according to the policy of the district attorney’s office, Polanski be allowed to plea only to the most serious count against him—in this case, rape with the use of drugs, which carried a sentence of at least three years. Dalton wanted a misdemeanor plea or, at most, a plea to the least serious count, statutory rape, which would likely incur a shorter sentence. Silver wrote a letter saying that Gailey did not want to testify, and her family did not want her to, either:

A reporter had told him that this “promised to be one of the most sensational Hollywood trials,” Silver wrote. “This is not the place for a recovering young girl.”

This was perhaps the clearest example of Polanski’s celebrity helping him: the attention drove the victim to try to withdraw from the case. And so the D.A.’s office agreed to allow Polanski to plea to felony statutory rape, the least serious count in the indictment, which he did, on August 8, 1977.

At the insistence of the prosecution, Polanski received what’s known as an “open plea”—that is, a plea where his sentence was left to the discretion of the judge, Laurence J. Rittenband. At the hearing, Polanski said he knew that the maximum sentence for his crime was “one to fifteen-twenty years in state prison.” The prosecutor, Roger Gunson, asked Polanski, “Who do you believe will decide what your sentence will be in this matter?”