Polanski absence may trip defense

At a hearing next month, the words “People versus Roman Polanski” will ring out in a courtroom for the first time in 30 years. Those gathered are certain to include prosecutors, defense attorneys and a throng of reporters, but the Oscar-winning director is not expected.

That empty chair at the defense table, experts say, makes his request for a dismissal of the three-decade-old sex charge a legal long-shot.

“As long as Polanski’s a fugitive, he doesn’t have the legal right to have the system of justice entertain any motion he might make,” said Roger Jon Diamond, a defense lawyer who represented another high-profile fugitive, convicted serial rapist Andrew Luster. “He may have a dead-bang winner, but the court won’t address it until he comes back.”

Polanski, a French citizen, has lived in Paris since 1978, when he fled sentencing on a charge of unlawful intercourse with a minor. If he returns to the United States, authorities will arrest him immediately as a fugitive.

Papers filed this week in Los Angeles County Superior Court suggested Polanski was unwilling to face handcuffs at the airport and a possible prison sentence.

His lawyers took pains to label the filing a request that the judge could execute on his own initiative rather than a defense motion, which would probably require the director’s presence.

“It is very creative lawyering,” said Loyola Law School professor Laurie Levenson. “They want it both ways. They want the court to do it a favor by dismissing the case, but they don’t want Mr. Polanski to come here and have to face the music.”

A lawyer for Polanski declined to comment on his legal strategy. “The position of Mr. Polanski is fully set forth in the filing,” attorney Chad Hummel said.

The request alleges misconduct by a prosecutor and the trial judge and argues that the wrongdoing was so egregious that a judge should clear Polanski “in the interests of justice.”

The director said he had intercourse with a 13-year-old girl in 1977 but left the country after Judge Lawrence Rittenband, now deceased, announced plans to sentence Polanski to prison over the wishes of the victim and the recommendation of the Probation Department. In an HBO documentary televised in June, a former deputy district attorney who believed Polanski should get prison time acknowledged having backroom discussions with the judge about what sentence the director should receive.

In their filing, Polanski’s lawyers asked for the type of judicial intervention to end a case that is often seen in DNA exonerations or other wrongful convictions. Levenson said Polanski’s case differs from those because the district attorney’s office has not conceded the alleged misconduct. The district attorney’s office maintains Polanski’s presence is required for the request to go forward.

“We believe Mr. Polanski must be in court for the hearing,” said district attorney’s spokeswoman Sandi Gibbons.

Prosecutors are likely to cite the fugitive disentitlement doctrine, a principle in place in state and federal courts since the late 19th century. The doctrine permits courts to ignore appeals from convicts who have left the court’s jurisdiction. Those flouting the authority of the court should not be rewarded with its attention, the reasoning goes, and moreover, such motions are a waste of time since a judge’s decision is unenforceable on a defendant outside the court’s control.

In the Luster case, courts refused to hear an appeal of his 2003 rape conviction while he was hiding from the law in Mexico.

Polanski’s lawyers may argue that his case is different because it remains frozen at the trial level rather than the appellate level, where the disentitlement doctrine most often applies.

“They may make a big deal that it is not a motion and technically it’s at the trial level, but I think the rationale behind the doctrine would be appropriate here,” said Henry Tashman, a lawyer who has argued such cases in U.S. court. (Tashman’s firm does legal work for Tribune Co., which owns The Times, but Tashman does not work on Tribune business.)

Polanski, who is married to a French actress and the father of two, has a strong motive to resolve the case. His fugitive status closed off his career in Hollywood and “deprived him of numerous opportunities to work on film projects outside of France,” his lawyers wrote.

Diamond, the criminal defense attorney who represented Luster, said Polanski’s competing desires -- freedom and a revived career in the U.S. -- created a dilemma for the director.

“Does he gamble and come back? Is it such a sure thing? Or is it like most motions where we just don’t know what’s going to happen,” he said.

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