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Technicalities underlie Swiss decision on the film director

Justice ministry says it won't extradite the film director because allegations of judicial misconduct have yet to be disproved and because prosecutors didn't immediately seek the fugitive's arrest.

July 13, 2010|By Jack Leonard and Andrew Blankstein, Los Angeles Times

In the end, the move by Swiss authorities to free Roman Polanski did not come down to whether he drugged and raped a 13-year-old girl.

Instead, the Swiss government's refusal Monday to extradite the director centered in part on a controversial 1977 backroom meeting that a Los Angeles judge held with the prosecutor and defense attorney on the case.

Polanski's lawyers say the judge made it clear at the meeting that he intended to send the director to prison for a 90-day psychiatric test as his full sentence behind bars. They say that Polanski completed his punishment when prison authorities released him after 42 days and that the filmmaker fled the country when the judge indicated he would send him back to prison.

The Swiss justice ministry cited the meeting in a statement explaining its decision, saying that a U.S. court's ruling that kept some records about the meeting secret created "persisting doubts concerning the presentation of the facts of the case."

"In these circumstances, it is not possible to exclude with the necessary certainty that Roman Polanski has already served the sentence he was condemned to at the time," the statement said.

Los Angeles County Dist. Atty. Steve Cooley said he was "genuinely surprised and disappointed" by the legal reasoning behind the decision.

He described the failure to return Polanski as a "disservice to justice."

Experts said the latest development in the long-running legal saga was a blow to Cooley's office.

Local prosecutors had won a series of victories in California courts as Polanski attempted to have his sex-crimes case dismissed or be sentenced in absentia. The filmmaker alleged that he was the victim of judicial and prosecutorial misconduct, but local judges ruled that he needed to return to Los Angeles before those claims could be considered.

"Up to now, Polanski has been the bad guy," said Laurie Levenson, a professor at Loyola Law School and a former federal prosecutor. "At the end of this, the D.A.s look like the losers even though Polanski is someone who fled from sentencing."

A spokeswoman at the U.S. Department of Justice, which handled the extradition request, said agency officials were disappointed by the Swiss government's announcement and were reviewing their options.

The vast majority of extradition requests are granted, but Polanski's case may cause prosecutors to consider future cases more carefully, said USC law professor Jean Rosenbluth.

"U.S. prosecutors may be a little less likely to expect that extradition requests will probably be rubber-stamped," said Rosenbluth, a former federal prosecutor.

Monday's victory for Polanski does not end what a California appeals court described as "one of the longest-running sagas in California criminal justice history."

The U.S. warrant for his arrest remains in effect. The filmmaker's criminal case in Los Angeles remains unresolved because he was never formally sentenced after pleading guilty to having sex with a minor. The U.S. can ask other countries to extradite Polanski if he is caught traveling.

But the Swiss decision means he can enjoy a measure of safety in Switzerland, where he owns a chalet, as well as France, where his French citizenship protects him from extradition.

In freeing Polanski, the Swiss Federal Department of Justice and Police also faulted U.S. authorities for not seeking his extradition sooner. It was well known that Polanski regularly stayed in Switzerland after buying a home in the ski resort town of Gstaad in 2006, the ministry said in its statement, but the U.S. did not ask Swiss authorities to arrest him until last year.

"Polanski would not have decided to go to the film festival in Zurich in September 2009 if he had not trusted that the journey would not entail any legal disadvantages for him," the ministry said.

Cooley took issue with the criticism, saying that prosecutors filed a formal request as soon as they learned that Polanski was expected to attend the Zurich film festival.

But the extradition case touched on another key question: How long did Polanski have left to serve in prison after fleeing the case?

The Swiss-U.S. treaty allows extradition from Switzerland when fugitives have at least six months to serve behind bars. U.S. prosecutors said Polanski faces up to two years in prison.

After Polanski was detained last year, former Deputy Dist. Atty. Roger Gunson provided testimony about the meeting he and the director's original defense attorney had with the judge in 1977. His testimony was given in the event that he was unable to attend a hearing should Polanski return to Los Angeles.

Two judges ordered that the transcripts from Gunson's deposition remain sealed, citing state law.

Swiss authorities appeared to give contradictory views of how important the transcripts were to the extradition case.

In April, a justice ministry spokesman told the Associated Press that his office was not interested in Gunson's testimony. But on Monday, the same agency said it had asked the U.S. for the records and had been rebuffed.

Robert Weisberg, a Stanford law professor, said that Polanski's three-decade-old criminal case raises a host of complicated legal issues and that the extradition request may have been "hopeless from the start."

"Switzerland apparently decided, 'We will not extradite someone back into this legal morass,' " Weisberg said.

jack.leonard@latimes.com

andrew.blankstein@latimes.com

Times staff writer Richard Winton contributed to this report.

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