Thursday, October 01, 2009

That extradition case, the ick factor and the "culture war"

I've pretty much tried to ignore the Roman Polanski extradition case. But it seems to be well on the way to becoming an international "culture war" issue. I hate these kinds of issues for two main reasons. One is that the "ick" factor of an fortysomething adult accused of having sex with a 13-year-old is high no matter what, whether it's in Hollywood or Afghanistan. The other is that probably no one but a legal specialist in this particular area of law actually has a good and reasonably objective opinion on what should actually be done or is customarily done in these kinds of cases.

But it's already become a symbolic issue, I'll state my own position, such as it is, up front. Really more of an understanding of the facts than a "position". It makes good sense to me that the Los Angeles District Attorney would seek extradition. The State of California has a real interest in seeing its judicial processes upheld. But it appears likely that no additional penalties will be because of some combination of the victim's wishes, the time since the crime, and serious concerns about improper conduct by the judge in the original case.

And, this being the real world, French and Polish concerns about their citizen Polanski's expedition shouldn't be dismissed out of hand out of anti-European sentiment or even genuine concern over the nature of the crime.

An apparently unintentional AP leak has suggested that the Switzerland is cooperating in the extradition request due to political efforts related to defusing conflicts over criminal misconduct by the Swiss bank UBS rather than to the merits of the case. And Americans need to remember that it's not 2000 any more. The US is a country that tortures people and refuses to prosecute known torturers. Even if there is no particular concern that Polanski would be tortured, it is a serious concern that casts a shadow over all extradition cases involving the US. (This report, French government drops support for director Roman Polanski as he faces extradition to the U.S. over child sex charge by Peter Allen Daily Telegraph 10/01/09, says that the French government is now taking the position that Polanski should be freed from Swiss jail while extradition is pending but that it is not opposing the extradition.)

The "culture war" aspect comes out in this piece by Doreen Carvajal and Michael Cieply, France Divided Over Polanski Case International Herald Tribune/New York Times 09/30/09. In fact, it was skimming the first few paragraphs of this article that made me think it might be worth knowing a bit more about the case, because it's become an issue because the French government has publicly defended Sarkozy's case against extradition to California.

Apparently in France as in the US, politicians not surprisingly think that the safer position is not to side with people in Polanski's current situation. I can't say the Carvajal/Cieply article was necessarily enlightening on the case. But they note in the third paragraph opposition to the conservative-led government's defense of Polanski from both the Greens and the "extreme right" party of Jean-Marie Le Pen. Given it's the New York Times, the writers and/or editors probably think that the xenophobia Le Pen party is their "this-side-says, the-other-side-says" style of reporting on what the Green leader Daniel Cohn-Bendit says. In the fifth paragraph, they at least get around to telling us that Polanski is a citizen of France and Poland, so the French government would have some reason to take some public position on the case.

Dany Cohn-Bendit was the most famous leader and symbol of the famous/(infamous) May-June 1968 uprising by students and workers in France. Carvajal and Cieply say he "criticized Sarkozy administration officials for leaping too quickly to Mr. Polanski’s side despite the serious nature of his crime". It's probably a good thing that the Times article didn't go into it. And maybe not a good thing that I'm mentioning it. But Cohn-Bendit does have a special reason to look like his siding against Polanski in this situation.

Several years ago, the German journalist Bettina Röhl dug up an embarrassing quote from Cohn-Bendit. As I explained at some length in an earlier post, Bettina Röhl harshes on former "68er" activists with a zeal that outruns the case she tries to make against them. She has her own family demons to deal with: her mother was Ulrike Meinhof of the "Baader-Meinhof Gang", her father Klause Rainer Röhl is a former flaming leftwinger turned flaming rightwinger and both parents were secret members of the East-German-directed underground Communist Party in West Germany. But she's a good researcher. And she turned up an interview with Cohn-Bendit that he had given years ago when he worked as a teacher in school with young children which seemed to suggest that he had engaged in inappropriate play with young children in that capacity.

Cohn-Bendit denied ever having done such a thing. And he said the quote was a poor attempt at humor, and a very inappropriate one. But from what I've seen of the case, there was never any reason to question his version. There were no such complaints at the time and no collaboration of such a thing from parents or students. I would say it was questionable ethics on Röhl's part to publish that information without any substantial collaboration. But, according to what Digby calls the Cokie Roberts Rule, the information was "out there" - it had been published in a small-circulation but public magazine before - and therefore it was fair game to report.

Still, it's a reminder of how sloppy reporting can damage people unfairly. The one time I saw the late great Molly Ivins speak live, back in the mid-1990s as the current plunge of press quality into the bottomless abyss was still in its early years, she was talking about factors in how reporting had deteriorated and become more irresponsible. And one example she gave was that it had for a long time been the practice of most papers not to publish the name of someone who had been accused but not convicted of molesting children. Because even if the charge was totally false and the accused unquestionably exonerated, the stigma was such that it could damage the accused permanently.

So I decided I would see what I could find that had been factually reported on the Polanski case before I tried to wade through the "cultural war" accusations.

Dismissal denied in Polanski child-sex case by Harriet Ryan 02/18/09. This is an interesting piece because it is recent but still months before the high-profile controversy of the past couple of weeks. This was an piece about a legal effort by Polanski to have the original case thrown out:

Los Angeles Superior Court Judge Peter Espinoza told a packed courtroom that he found the core argument in Polanski's request for a dismissal of charges -- allegations of unethical and, in some instances, illegal conduct by a prosecutor and a judge three decades ago -- to be credible.

"There was substantial, it seems to me, misconduct that occurred during the pendency of this case," Espinoza said.

But, the judge said, Polanski's fugitive status left him no choice but to deny the request. ...

In 1997, a prosecutor and a defense attorney worked out a plan for the director to surrender, be arrested at the airport, brought to court, sentenced and immediately released. The agreement fell apart with Polanski's side saying he objected to television coverage in court. ...

The victim, Samantha Geimer, settled a civil suit against Polanski and publicly forgave him. She has asked that the case be dismissed. Her attorney on Tuesday argued to Espinoza that she could make the motion to dismiss the charges if Polanski's fugitive status prevented the judge from doing so, but Espinoza said in a written ruling that there was no "legal justification" to support that argument. [my emphasis]
Samantha Geimer, Polanski's victim, doesn't back prison time for the director Los Angeles Times Online by Shelby Grad 09/27/09

Judge the Movie, Not the Man by Samantha Geimer Los Angeles Times 02/2303. In this op-ed, the victim describes clearly what occurred as non-consensual sex, i.e., rape. She also says, "He should have received a sentence of time served 25 years ago, just as we all agreed."

Roman Polanski arrest: Hollywood unties in his defence The Guardian Online 09/28/09. This article refers to the victim as "the girl whom Polanski raped at the age of 13", but includes what appears to be an editorial note appended at the end saying, "Some commentators have simply used the term 'rape' in relation to Roman Polanski's 1977 conviction. The offence he pleaded guilty to is often described as 'statutory rape' but more precisely as 'unlawful sexual intercourse with a minor'." This article also discusses the AP leak connected the Swiss action to concerns over banking controversies.

Prosecuting Polanski Los Angeles Times editorial 09/29/09:

Finally, in a caricature of European cosmopolitanism, France's culture minister fumed that the harrying of such a cultural icon revealed the face of "a scary America."

Some of these arguments are more persuasive than others. For example, Polanski may have a due-process claim based on improper behavior by the judge in his case. By contrast, he shouldn't be left alone because of tragedies in his life or his status as a legendary director. Nor is it relevant that his victim seeks no further punishment for him. Prosecutions are brought in the name of the state, not the victim.

Plausible or preposterous, these arguments are eclipsed by a simple fact: Polanski fled the country.
The one part of that quote with which I would disagree is the sneer at the French culture minister, an implicitly at the French Foreign Minister who made an even stronger statement about his concerns over the extradition, as "a caricature of European cosmopolitanism." And while it's true that the state prosecutes on its own behalf and not in the name of the victim - an important legal reality that some of the rhetoric around "victim's rights" over the years has tended to obscure - it's unlikely in practice that in the event the original charges were thrown out that the DA would attempt to reprosecute the case with a victim unwilling to proceed on a now decades-old charge.

So, we have a case in which the accused accepted a plea bargain and served the agreed sentence, where there is substantial reason to believe there was prosecutorial and judicial misconduct, in which the Los Angeles prosecutor had agree in 1997 to another deal in which the accused would have appeared in court and then gone free, and in which the victim actually agrees that the original charges should be dropped.

The "ick factor" notwithstanding, this doesn't seem like a very good case to make another totem in the "culture war". And while it may be a reminder that the criminal justice system in the US generally thirty years ago tended to treat perpetrators in such cases too leniently, it seems unlikely that this 32-year-old case is likely to produce a very satisfactory outcome for anyone if it's retried. And the prospects seem good that the the original charges will be dropped, for better or for worse.

A number of prominent Hollywood movie-industry figures have publicly come to Polanski's defense over the extradition. So far as I've seen from the news reports, they haven't made a terribly strong case. At the least, they would have presented a more sympathetic case if they had focused more narrowly on due process and official misconduct in the original trial.

At least some of those who are treating it as a straight-forward outrage that anyone would express reservations about official conduct of the case also seem to be more concerned about immunizing themselves from conservative culture-war attacks than sorting out the issues raised by the case. But so long as they are doing it, it's worth flagging that a number of liberals have take a hardline anti-Polanski position in the case:

Katha Pollitt, Roman Polanski Has a Lot of Friends The Nation Online 10/01/09: "The widespread support for Polanski shows the liberal cultural elite at its preening, fatuous worst. ... No wonder Middle America hates them." Seeing as how even TV news has morphed into infotainment, I'm not convinced that "Middle America" hates Hollywood stars and directors.

Glenn Greenwald gets into the act with Post editors should read their own columnists Salon 10/01/09. He seems to be genuinely disgusted at Polanski's defenders. But his main point is that the Washington Post's editorial position attacking Polanski's defenders is in pathetic contrast to its staunch opposition to prosecution of Bush officials for official crimes that include offenses regarded by the law as even more serious than the crime to which Polanski pleaded guilty.

Glenn criticizes three particularly fatuous defenses of Polanski:

The Outrageous Arrest of Roman Polanski by Anne Applebaum Washington Post Online 09/27/09. Applebaum is married to the Polish Foreign Minister, who in his official capacity has expressed concern about Polanski's extradition, a fact she didn't bother to disclose in this piece.

Let Polanski Go -- But First Let Me At Him by Richard Cohen Washington Post Online 09/28/09

Artist Rally Behind Polanski by Bernard-Henri Lévy Huffington Post 09/28/09. Whatever side of the "culture war" Levy is on, I'm pretty sure it's not the same as mine.

For other developments:

The Smoking Gun site has the transcript of the victim's grand jury testimony from 1977 (if you're thinking about reading it at work, remember that it involves descriptions that screening software could flag as pornographic).

Polanski's Lost Alibi by Marcia Clark The Daily Beast 09/30/09

Reminder: Roman Polanski raped a child by Kate Harding 09/28/09.

In Roman Polanski case, is it Hollywood vs. Middle America? by John Horn and Tina Daunt Los Angeles Times 10/01/09

There are lots of polemics about this at the Huffington Post, including:

Why Arrest Roman Polanski Now? by Robert Harris New York Times 09/29/09

Why Robert Harris' NY Times Pro-Polanski Op-Ed Is an Offensive, Self-Serving Disgrace by Andy Ostroy 09/30/09

Wonder Why Middle America Doesn't Trust Hollywood Liberals? Three Words: Weinstein and Polanski by Keli Goff 09/30/09

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