The Best American Crime Reporting 2010 (17 page)

The legal case against Polanski largely faded from view. Every few years, Dalton made an overture to resolve the case, but the prosecutors always insisted that Polanski return to the United States first. Polanski refused to expose himself to that level of uncertainty. In 1997, Dalton came close to brokering a resolution, which would have required no further prison time for Polanski; according to Dalton, the judge assigned to the matter, Larry Fidler, had more or less signed off on the plan but insisted that the final hearing be televised. (Fidler, through a spokesman, denied imposing this condition. Gunson supports Dalton’s recollection.) In any event, Polanski scuttled the plan.

The last turn in the case began, oddly enough, with perhaps the greatest triumph of Polanski’s career. Polanski and his producing partners had pieced together financing to produce an adaptation of a Polish memoir, first published in 1946, called “Death of a City.” The story of a musician who survived the Warsaw ghetto while his entire family perished, the movie was called “The Pianist,” and it was released in 2002; it proved to be a perfect vehicle for the director, who turned seventy the following year. At last, Polanski’s long-sought Oscar seemed within reach.

T
HE SUCCESS OF
“T
HE
P
IANIST
” raised the question of whether Polanski would return to Los Angeles for the Academy Awards, and the Los Angeles
Times
ran a story about his long exile. “I saw that article, and it piqued my interest,” Marina Zenovich, a documentary filmmaker, told me. “Then a little while later I saw Samantha Geimer on Larry King.” Over the years, Geimer, née Gailey, had become an increasingly vocal supporter of Polanski’s return. In 1993, Polanski reportedly agreed to pay five hundred thousand dollars to Geimer as a settlement in a civil suit. (It apparently took several years, and more legal wrangling, for the money to be paid.) She never backed down from her grand-jury testimony, but as she moved toward her forties, with a family of her own, Geimer urged the district attorney to allow Polanski to return without having to go to prison. On February 23, 2003, Geimer and her lawyer, Lawrence Silver, appeared on “Larry King Live.” Silver said, “What happened that day, both to Polanski and to some extent the American judicial system—I really think it was a shameful day.” Zenovich recalled, “That didn’t make sense to me. So I decided to investigate the case myself.” A few weeks later, Polanski won the Oscar for Best Director; he remained overseas for the ceremony.

In a previous documentary, Zenovich had become obsessed with her subject, the French businessman, politician, and actor Bernard Tapie; now she focussed the same fanatical level of attention on the long-dormant Polanski legal drama. Zenovich created an especially damning portrait of Judge Rittenband, complete with interviews with his girlfriends. Most important, Zenovich tracked down a player whose role had been unknown to Polanski’s team. David Wells was a deputy district attorney who had worked briefly on the case before Gunson took over, and he told Zenovich that he had spoken secretly with the judge and pushed him to be tougher. Wells said that he had brought Rittenband the photograph of Polanski at Oktoberfest. “What I told him was…‘Look! He’s giving you the finger. He’s flipping you off,’” Wells told Zenovich. “He said, ‘What? What? He’s not getting away with that.’” (Wells has recently recanted this part of his interview, telling The Daily Beast, “I lied…. I thought it made a better story if I said I’d told the judge what to do.” He declined to speak with me.) Wells’s lobbying of Rittenband raised the spectre of prosecutorial and judicial misconduct and thus possible grounds for a dismissal of the case.

Zenovich’s documentary, “Roman Polanski: Wanted and Desired,” premiered at the Sundance Film Festival in 2008 and was broadcast on HBO later that year. The force of celebrity had buffeted the case once more. It had helped Polanski by persuading his victim to support a plea deal, and by inspiring a fawning probation report; it hurt him by drawing suspicion to his legitimate travel to Germany and prompting Rittenband’s erratic decisions. Celebrity now helped by drawing Zenovich’s attention, which, in turn, led to new questions about the case against him. His lawyers decided to make yet another attempt to resolve it.

Dalton recruited Chad Hummel, a partner at the Los Angeles firm of Manatt, Phelps & Phillips, to help with the case. Armed with Zenovich’s fresh disclosures, Hummel and Dalton separately met with the prosecutors to whom the Polanski file had been passed. (Gunson had retired in 2002.) Their answer was the same as their predecessors’: no deal until Polanski returned. The question for his lawyers now became whether the misconduct by Wells and Rittenband was so egregious that a judge might dismiss the case even in the face of Polanski’s refusal to submit to the jurisdiction of American courts.

There was a precedent of sorts. In July, 2002,
Vanity Fair
had run a long article about the restaurant Elaine’s, in New York. The piece included an anecdote from Lewis Lapham, then the editor of
Harper’s
, who said that Polanski, while in New York on the way to Los Angeles for Sharon Tate’s funeral, had made a pass at a woman at Elaine’s, telling her, “I will make another Sharon Tate out of you.” Polanski denied it, noting that he had not stopped in New York on his way from London, and sued
Vanity Fair
’s parent company, Condé Nast, in British courts. (Condé Nast also owns
The New Yorker
.)

In light of Polanski’s checkered personal history, his decision to sue for injury to his reputation was presumptuous, to say the least. This was especially true because Polanski was what’s known as a “libel tourist,” who was using Britain’s libel laws, which favor the plaintiff, to sue an American magazine. Even more audaciously, Polanski declined to go to England, fearing extradition in his statutory-rape case.
Vanity Fair
asked the court to dismiss the lawsuit, but in February, 2005, the Law Lords, Britain’s highest court, ruled that Polanski did not have to appear in person in order to pursue the case. (After a trial in which Polanski testified by video link, the jury awarded him about ninety thousand dollars.) The British decision was obviously not binding on an American court, but it suggested that he might be able to win in the United States, too, without showing up.

In December, 2008, the Polanski defense team filed a motion in L.A. County Superior Court, asking that the case be dismissed on the ground that Polanski had been deprived of due process of law. (The lawyers submitted Zenovich’s documentary as an exhibit.) On February 17, 2009, Hummel appeared before Judge Peter Espinoza to argue the case. (The transcript noted, “Defendant Polanski not present in court.”)

The diagnostic session at Chino, Hummel told Judge Espinoza, “was intended to be his entire sentence…. So this notion that somehow there was a fleeing from a sentence is not true.” Hummel went on, “In our system, we simply cannot tolerate back-room communications between prosecutors and judges that influence a sentence and that cut out the defendant and his counsel from those communications…. That’s at the heart of this request.” Lawrence Silver joined in Polanski’s motion, saying, “The time has come for this case to end, Your Honor.”

The D.A.’s office responded with barely concealed rage. “This case is about a 44-year-old defendant who plied a 13-year-old girl with drugs and alcohol, then against her consent, committed acts of oral copulation, sodomy and sexual intercourse upon her,” the attorneys wrote in a brief. “Petitioner’s flight, whatever his motivations, and his failure to take responsibility for his crimes is at the heart of the extraordinary delays in this case.”

Polanski’s lawyer clearly made an impression on Judge Espinoza, who said that there had been “substantial…misconduct that occurred during the pendency of this case.” Ultimately, though, he rejected Polanski’s motion, under what is known as the “fugitive disentitlement doctrine.” Espinoza ruled that Polanski “is not entitled to request any affirmative relief from this Court, as he remains at large.” Polanski’s team asked a three-judge Court of Appeal panel to intervene, and on July 30th that court gave them a surprising victory. In a departure from its usual practice, the court directed Espinoza to show cause why he should not hold “an evidentiary hearing, without requiring [Polanski’s] physical presence, to determine whether the case should be dismissed in furtherance of justice.” The Court of Appeal may have been subtly inviting the trial court to throw out the prosecution. It was perhaps Polanski’s biggest court victory in thirty-two years—and, in the upside-down world of his case, the worst thing that could have happened to him.

S
TEVE
C
OOLEY
, who was elected in 2000, is the fifth Los Angeles County district attorney to preside over the Polanski prosecution. Cooley first won the job as the law-and-order alternative to his predecessor, Gil Garcetti, who was widely criticized for his handling of several high-profile cases, most notably the O. J. Simpson trial. Notwithstanding the passion of Cooley’s argument, Polanski appeared to be making progress in the courts in the summer of 2009. Cooley had to respond.

Over the years, the district attorney’s efforts to bring Polanski back to the United States seem to have been half-hearted. According to a chronology released by the D.A.’s office, prosecutors have made only a handful of significant gestures to international authorities, and there have been long gaps in even this effort. (The chronology lists nothing, for example, during the periods 1982 to 1985, 1989 to 1993, and 1995 to 2004.) The first time a provisional request for Polanski’s arrest in Switzerland was actually prepared was on September 22, 2009. E-mails obtained by the Associated Press show that prosecutors in Los Angeles tracked Polanski as he moved between Austria and Switzerland in late September and weighed which country had a better extradition arrangement with the United States. “I don’t have experience with any Austrian extraditions so I don’t know how ‘friendly’ they would be to extradition on such a case,” Diana Carbajal, a deputy district attorney, wrote in one message. This sudden rush of interest ended with Polanski’s arrest on the night of September 26th, as he arrived at the Zurich airport, to attend a ceremony in his honor at that city’s film festival.

The timing clearly suggests that the Los Angeles District Attorney’s office moved to arrest Polanski because he seemed to have a real possibility of winning in the courts. Cooley has said, “It’s about completing justice. Justice is not complete when someone leaves the jurisdiction of the court.” Polanski’s lawyers thus have to wonder whether, by bringing the motion to dismiss the case, they effectively prompted their client’s arrest. Did Polanski’s motion, meritorious though it might be, backfire? “There was prosecutorial misconduct and we felt we had to bring it to the court’s attention,” Dalton told me. “We had to do it.”

A
FTER
P
OLANSKI’S ARREST,
the value of his celebrity went through its most precipitate rise and fall. Polanski’s friends, many of them also celebrities, swept in with public, fervent support. The S.A.C.D., the French dramatic writers’ guild, sponsored a petition, which said that Polanski had been arrested “in a case of morals.” It went on, “Filmmakers in France, in Europe, in the United States and around the world are dismayed by this decision. It seems inadmissible to them that an international cultural event, paying homage to one of the greatest contemporary filmmakers, is used by the police to apprehend him.” Signers included Woody Allen, Martin Scorsese, Pedro Almodóvar, and eventually several hundred others from around the world. Bernard-Henri Lévy organized another petition, drawing support from Steven Soderbergh, Neil Jordan, Sam Mendes, Diane von Furstenberg, and Mike Nichols as well as Salman Rushdie and Milan Kundera. This one said, “We ask the Swiss courts to free him immediately and not to turn this ingenious filmmaker into a martyr of a politico-legal imbroglio that is unworthy of two democracies like Switzerland and the United States. Good sense, as well as honor, require it.” Nicolas Sarkozy, the French President, called Polanski’s arrest “not a good administration of justice.” The producer Harvey Weinstein wrote about Polanski’s “so-called crime.”

With equal rapidity, an anti-Polanski backlash swept in. The petitions made no reference to the facts of the case, no acknowledgment of the seriousness of his crime, and no recognition that sex with a child—the rape of a child—was worthy of condemnation. Columnists across the political spectrum, from feminists on the left to conservatives on the right, found common cause in revulsion at both Polanski and his famous friends. Katha Pollitt wrote in
The Nation
, “It’s enraging that literary superstars who go on and on about human dignity, and human rights, and even women’s rights (at least when the women are Muslim) either don’t see what Polanski did as rape, or don’t care, because he is, after all, Polanski—an artist like themselves.” The
Wall Street Journal
’s drama critic wrote, “Anyone who lives in a tightly sealed echo chamber of self-congratulation, surrounded by yes-men who are dedicated to doing what he wants, is bound to lose touch with reality.” Polanski’s public supporters, from Sarkozy to Weinstein, decided to discuss the matter no further. In the court of public opinion, the backlash won. The legalities were left to the Swiss courts.

As in the United States, the advantage in the legal battle in Switzerland shifted, over time, to Polanski. He was initially denied bail—understandably, as there was a “risk of flight”—and incarcerated in a small prison, built around a stone-paved courtyard. He could see the tops of a few trees and a bit of the sky from the barred window of his cell, and was allowed an hour of exercise per day. On October 2nd, Dalton, Hummel, and Reid Weingarten, a Washington lawyer, met with Justice Department officials to ask them not to make a formal extradition request. The lawyers did not succeed, but the official demand for extradition did not go to the Swiss until three weeks later. Polanski’s lawyers put together a package of guarantees that included electronic monitoring and most of his personal financial assets, and that persuaded an appellate court to release him to his chalet. His legal challenges to the extradition order have only just begun, and probably will not be resolved until next spring.