Cases that inspired the book

The story of Roman Polanski’s arrest, plea, and subsequent extradition is quite extraordinary, and it has a bunch of valuable lessons for lawyers trying criminal cases, on both sides.  I am reminded of it every time I want to memorialize an agreement with a prosecutor from the District Attorney’s Office, and I send them a written stipulation, and they say, “Oh, we don't need that, let’s just put it on the record in court.” Do it verbally, in other words, because they don’t want to take the time to hash out the details of a document, and because their office culture permits this. I was trained in the federal system, in which you would never, ever do something like that. The Roman Polanski case illustrates the perils of the “just do it verbally” model of litigation practice: you end up with a disagreement about what the agreement was, and there’s no document with both sides’ signatures on it to turn to for definitive resolution.

The full story is told by the California Court of Appeal at 180 Cal.App.4th 507 (2009). The reason there was an appellate opinion 30 years after the initial case (Polanski was arrested in 1977) is that he fled to Europe in 1978 just before his sentencing hearing. He hasn’t returned since. But he won an Oscar in 2003, and wanted to come back to receive it in person. So in 2008 his lawyers moved to dismiss the charges against him (charges remain pending forever if you go on the lam), on the grounds that there was a binding agreement that the sentence would be a term of psychiatric evaluation (which he had completed) followed by probation—and that the judge had then breached that agreement by announcing, prior to the sentencing hearing, that he was going to send Polanski to state prison. Polanski’s lawyers argued that at a minimum, he should be able to withdraw his plea. 

The presentencing procedural craziness—none of which was ever recorded by a court reporter—was the reason Polanski was never extradited. The European courts held that there was a legitimate possibility that he had already been sentenced and served his punishment, and extraditing him to come back for more punishment would be double jeopardy. The California Court of Appeal held, in a nutshell, as follows: Sure looks weird, and most likely there were some serious problems with how your case was handled. And you’re welcome to litigate all that—but first you have to come back and appear in court. Until you do that, we’re not dismissing anything. Your call. 

Read the Court’s opinion, and you’ll agree with me, I’m sure, that the real world of real people and real cases is crazier and more nuanced than our oversimplified fictional plots. 

Polanski, recall, was charged with sexual assault, back in 1977. He went to court, pled guilty, and agreed to a term of custody in a state psychiatric facility, which he completed. The problem was that there was literally no written record as to whether that term of custody was his entire sentence or was just an evaluation for the purpose of providing guidance to the court as to what his sentence should be.  No transcript, no filed Judgment and Commitment, nothing. To make a very long story short, Polanski believed he had been convicted and punished and had served his sentence, and moved to Europe. The District Attorney’s Office claimed he was a fugitive who had not yet served his sentence, and tried to get him back via extradition. And every lawyer who reads about the case should come away with an object lesson in the need to paper your record.  In Polanski’s case, there was (so it appears from what record we have) a chambers conference (the two lawyers and the judge) which was held without a court reporter.  And that’s where the sentence was hashed out. If the People agreed in that chambers conference that the 60-day stretch in Chino was the sentence, then that’s it—plea agreements are contracts, and the courts hold the government to its bargains as a matter of law.    

So there are basically three options, as I see it, as to what might have happened in that chambers conference. One: there was a clear agreement on the terms Polanski’s side claimed. Two: there was a clear agreement on the terms the DA claimed. Three: everyone talked for a while but the “agreement” wasn’t actually as clear as anyone thought. All three people in the room—the judge, the DA, and the defense lawyer—actually submitted written statements later (indeed, for two of the statements, 30 years later) about what they remember about that chambers meeting. Below are excerpts of what they said, from the Court of Appeal opinion (180 Cal. App. at p. 515). A quick summary goes like this: The judge called both sides into his chambers for an initial informal conference to discuss the case. At that point, everyone—the judge, the prosecutor, the probation officer, and the defense attorney—basically agreed that Polanski (a 43 year-old man charged with having sex with a 13 year-old girl) didn’t need to do any jail time. (Think about that for a minute, if you want an illustration of how our societal norms have changed.) Now add to the mix that the family of the victim had publicly called for a probation sentence with no prison time (and the victim herself has consistently maintained that position even as an adult). Then add the media spotlight (this was the director of Chinatown, remember, and the assault occurred at a glitzy party at Jack Nicholson’s house).

The way the lawyers recall it, the judge appeared worried about negative publicity if he looked like he was going easy on Polanski, so he told the lawyers to go in and stage an argument: the DA should argue for custody, the defense attorney should argue for probation, and then he would impose a “psychiatric evaluation” sentence as a “compromise,” so that he’d look reasonable for the media. A few months later, in the face of negative media coverage (which was of his own making—the judge had given an interview to People magazine about the case!), he called the lawyers back into chambers and proposed another choreographed “argument” for public consumption. This time, he said, he wanted the lawyers to go in and argue, and then he’d sentence Polanski to state prison—but then would modify the sentence afterwards, and let him out early if he agreed to leave the country. And he told the lawyers not to mention to the media the part about the after-the-fact modification. Bottom line—neither of the lawyers would play along, and the whole thing collapsed in confusion. 

This sort of un-memorialized chambers deal should never happen in a court system. You have to make a clear record of what everyone’s agreeing to, and get everyone to commit to it on the record, because conversations are always ambiguous and people always change their minds. And if all communications between the court and the lawyers are done in formal written briefs and on-the-record, transcribed colloquies, then you’ll never have even a whiff of what the lawyers are saying happened here. Read the two lawyers’ recollections, below; it’s just extraordinary.

It is precisely to avoid this sort of mess that courts have a court reporter in the courtroom, writing down what everyone says. It’s why we have a clerk’s office that stamps your written filings and holds copies for posterity. It’s why we have a rule that anything you file with the court you have to serve on the other side. And it’s why we have a rule prohibiting ex parte communications with the court. And it’s why in federal court, judges won’t accept pleas without a written plea agreement, and require the defendant to appear in court, on the record, and acknowledge all the terms of the plea.  

Now, there’s a reason why the federal courts can be so particular, of course—their dockets are far smaller, and they have far greater resources. It’s why they have the marble and the fancy curtains and polished mahogany and murals on the walls, and giant chambers and Bright Young Thing law clerks for the judges. State courts have none of that. In state court, everyone is overworked and understaffed, and you have to resolve things verbally and on the fly or else the dockets and jails and hallways would be even more crowded than they already are. 

But the Polanski case went beyond the usual state-court informality. It was, apparently, a plea and sentencing agreement reached without a court reporter or any written record at all. Why did two experienced attorneys and an experienced judge all decide to resolve a high-profile criminal case that way? Couldn’t they have anticipated that it would go sideways in the exact ways it ultimately did? In hindsight, I suppose, sure. But in fact, they were experienced, and they didn’t—none of them—feel the need to make a clear record at the time. Young lawyers: 

Here are excerpts from the Court of Appeal Opinion, giving us the actual statements of the defense attorney, the prosecutor, and the judge about what they recall. Read them if you’re curious—and definitely read them if you’re a young lawyer. For you, they should be an object lesson: Learn from this. Make a clear record. Try your case in the courtroom, with a court reporter.  Don’t be the guy having to submit a statement about what you recall from a chambers conference from thirty years ago.

Here are what I think are the most striking excerpts from the statements of the two lawyers and the judge as they appear in the published Court of Appeal opinion.  

Defense counsel Douglas Dalton (in 1978): 

On September 16, 1977… Judge Rittenband [met with] Deputy District Attorney Roger Gunson, Probation Officer Irwin Gold and [Dalton] in his chambers… the Judge stated that he would [send Polanski to the Chino psychiatric facility] rather than the county jail because Polanski would be safer at Chino than in the county jail. Judge Rittenband stated that 60 days at Chino would be sufficient time in custody to constitute the defendant's punishment…. Judge Rittenband told Dalton that at the hearing he should argue for probation, that Deputy District Attorney Gunson should argue for incarceration, and that then the Judge would order the diagnostic study pursuant to Section 1203.03 of the Penal Code.

Dalton (in 2008): 

Several days before September 19, 197[7], the date scheduled for the Probation Hearing and Sentencing, Judge Rittenband told Deputy District Attorney Roger Gunson, Deputy Probation Officer Irwin Gold, and me that he had already decided to send Mr. Polanski to prison for a ‘diagnostic study’ under section 1203.03 of the Penal Code as his complete punishment under the plea if the prison returned a favorable report and the press were not told of the agreement. Judge Rittenband neither sought nor listened to any opinions or recommendation of the parties present. Not only had the minor's family urged that Mr. Polanski not serve any time in prison, but the probation report also recommended a sentence of probation only…. Deputy District Attorney Gunson and Deputy Probation Officer Gold both objected to the use of Penal Code section 1203.03 as punishment, stating that it was an improper and illegal use of the provision. Judge Rittenband disregarded their objections. Notwithstanding the fact that he had already made up his mind and pre-determined the result, Judge Rittenband directed Deputy District Attorney Gunson and me to engage in the charade of arguing our respective positions at the Probation and Sentencing Hearing on September 19, 197[7].

Deputy District Attorney Roger Gunson (in 2009):[1] 

After Mr. Polanski's plea in August 1977, Judge Rittenband informed both Mr. Polanski's lawyer, Douglas Dalton, and me that Mr. Polanski would be sent to Chino State Prison under Penal Code section 1203.03 as his punishment. At that time, I told Judge Rittenband that the diagnostic study was not designed to be used as a sentence, but Judge Rittenband said that he was going to do it anyway.

Judge Rittenband (in 1978): 

I had a discussion in chambers with Dalton and Roger Gunson, the Deputy District Attorney, about possible sentences. I told them and the probation officer, who was present, that I would not follow the probation officer's recommendation for straight probation and that I felt time in custody was indicated. I indicated that I was concerned that Polanski might be the subject of an attack in the County Jail by other jail inmates who traditionally dislike child molesters and that I instead would commit Mr. Polanski to the state prison at Chino for a 90–day diagnostic study. At that time, I stated I wanted such a study to assist me in determining what sentence to impose on Polanski.

Douglas Dalton (in 1978): 

On or about January 30, 1978, Judge Rittenband met in his chambers with Deputy District Attorney Roger Gunson and [Dalton]. Judge Rittenband stated that the diagnostic study from California Institution for Men, which recommended probation, was the worst he had ever seen and a complete whitewash of the defendant and that he had determined to send him back to prison. [Judge Rittenbrand] hatched a plan to make the court look tough on Polanski, but with unpublicized relief coming later provided that Polanski left the country. On January 30, 1978, at the meeting described in his chambers with Deputy District Attorney Gunson and defense counsel Dalton, Judge Rittenband had stated that he intended to send Polanski to state prison pursuant to Section 1168 of the Penal Code and then permit him to be released after the expiration of 48 days upon the condition that he would voluntarily agree to be deported from the United States. Section 1168 of the Penal Code would permit the Judge to retain his jurisdiction to modify the sentence within 120 days.  Deputy District Attorney Gunson and defense counsel Dalton had been told by the Judge that neither the Judge, Dalton, nor Gunson need explain to them (the newsmen) that Section 1168 of the Penal Code would permit the Judge to modify the sentence within 120 days, and tha[t] the sentence he would pronounce in open court would state only th[at] Polanski was sentenced to state prison for the term prescribed by law. 

Douglas Dalton (in 1978): 

In the June 6, 1977, issue of People magazine, the Judge was quoted as saying, “I've handled other celebrity cases and this just doesn't look like anything other than a routine rape case to me.” When asked if the defendant would be able to receive a fair trial in Los Angeles, Judge Rittenband replied: “People here are more sophisticated than anywhere else in the country and from what I've been able to gather, public opinion is divided on who is at fault. There are those who think Polanski a devil, and others who wonder why a mother would let her 13–year old daughter go around with a 43–year old film director anyway.” 

Douglas Dalton (in 1978): 

Deputy District Attorney Gunson stated that if Judge Rittenband wanted to give Polanski 48 more days in custody that he should sentence him to 90 days in the county jail and give him credit for the 42 days which Polanski had served while undergoing the diagnostic study at Chino. Judge Rittenband stated that the appearance of a state prison sentence must be maintained for the press and for this reason he would not consider any county jail sentence.

[Dalton requested] additional time to consult with his client regarding the evidentiary hearing. Judge Rittenband stated that the press expected a hearing on the following day and that they were going to have one. During these conversations, Judge Rittenband took a telephone call which he identified as being from Bill Farr[,] a reporter for the Los Angeles Times[,] and stated that he advised Farr that the hearing was going forward on the following day. The Judge further stated that at the hearing on the following day, February 1, 1978, that Dalton should vigorously argue for no further incarceration and that Gunson should then argue against probation and for a sentence of incarceration. Following the arguments of counsel, the judge would make his own statement and the state prison sentence would be imposed…. Judge Rittenband told defense counsel Dalton… that if the defense decided not to [request a hearing], the agreement about the [early release after] 48 days would still be in effect.

Following the meeting with the Judge, Deputy District Attorney Gunson, defense counsel Dalton and attorney Silver discussed what had occurred at the meeting with the Judge in chambers, and both Gunson and Dalton stated that they would not permit themselves to act out the roles assigned to them by the Judge in such a staged proceeding which was for the benefit of the press and with the result already pre-determined by the Judge.

So how do things stand today? Polanski still has not come back to the U.S. I doubt he ever will, unless the LA District Attorney decides to make a motion to dismiss. That hasn’t happened yet, and I doubt it ever will.

[1] 2009! Imagine trying to recall a conversation you had 32 years ago. That’s why we are supposed to have court reporters present when we’re working out plea bargains in criminal cases.