September 28, 2009

Justice Isn't Just About Guilt

For some reason, the arrest and attempted extradition of Roman Polanski seems to be capturing everyone's attention.  I guess when you're rich and famous, your doings are important to everyone.  If Roman Polanski were not rich and famous, we wouldn't be hearing about any of this.

But he is rich and famous and we are hearing about it.  So here's the story.  In 1977, Roman Polanski was 43 years old, a dual citizen of Poland and France, and reaching the high point of his career.  He had already directed Rosemary's Baby (which he also co-wrote) and Chinatown.  Then, he met thirteen-year old girl (whose name can be found easily) at Jack Nicholson's house.  He gave the girl champagne and a Quaalude, told her he would take first topless and then nude photographs of her for Vogue magazine, got her in the Jacuzzi, and then raped her.  Subsequently, he was arrested and spent 42 days in jail.  He was then indicted of rape of a child, and subsequently reached a plea bargain in which the rape and sodomy charges would be dismissed and he pled guilty to the charge of unlawful sex with a minor.  But before sentencing, he fled the country and wound up in France, which has difficult laws regarding extradition when the defendant is a French citizen.

Polanski has always maintained that the prosecutor and the judge -- both of whom are now dead -- had colluded in an illegal way prior to the plea bargain.  I've had some difficulty digging out the details about how exactly they were supposed to have done that, but the new judge assigned to the case has indicated that he thinks there is substantial evidence of some kind of illegal collusion between bench and bar.  The hint has always been that if Polanski volutnarily returned and submitted to the justice system, he would have a chance to air out his procedural defense and maybe get the conviction dismissed.  His victim has also said she has moved on from the crime and would prefer to see the charges against him dropped.

But instead, Polanski continued his career abroad, making movies of mostly middling quality and winning an an Academy Award for The Pianist, which was accepted in absentia by Harrison Ford, who had starred in an earlier Polanski-in-Exile movie, Frantic.  And over the weekend, he went to Zurich to accept an award -- but Switzerland has different extradition laws than France, and apparently someone in the U.S. Attorney's office was paying attention sufficiently in advance to do something about it.  Polanski was arrested by Swiss authorities, who are preparing to hold a hearing under Swiss law about whether Polanski should be extradited to the U.S. or not.

There are two reactions to the story.  The first is to accuse U.S. and Swiss authorities of a "philistine collusion," objecting that his arrest was contrary to Swiss law in some manner.  The second is to recite the parade of horrible things Polanski did to his victim more than thirty years ago and remind everyone that he pled guilty.

Neither of which really reach the point.  What people ought to want is justice.  Justice is more than "the side I like wins," whether that side is the famous and glamorous filmmaker, or whether that side is the prosecution.  Justice is what happens when a morally good law is applied fairly and impartially to facts.  That means that the law must be both substantively good and procedurally fair.  If those conditions are not met, a civilized and law-abiding society may not legitimately deprive one of its citizens of his liberty.

There is little doubt that Polanski raped that thirteen-year-old girl.  There is no doubt that the law, in order to be moral, should protect thirteen-year-old girls from predatory and creepy 43-year-olds.  The substance of the law is impeccable here.  People who try to claim that Polanski is an honorable man, that he has committed no crime since that bad time in the 1970's, that he has made beautiful films and society should not be deprived of that art, badly miss the point.  That he is a talented artist is irreelvant.  He did a terrible thing and he should have to answer for it.  Instead, he fled from justice.  That is not the conduct of an honorable man -- it is the conduct of a guilty man self-interestedly avoiding punishment.

The question is the procedure and we should take seriously claims that bad criminal procedure produces bad substantive results. 

It is not enough that the defendant be guilty for justice to be done.  The hands meting out the punishment must be clean or else we cannot be confident that we are not punishing innocent people and collectively guilty of crimes ourselves. 

Some people might be satisfied with a guilty plea alone, but if it is true that the judge assigned to hear the case colluded with the prosecutor in any significant way, that raises a serious concern in my mind.  People confess to crimes they did not commit.  Why?  Some do it because they were tortured.  Some do it because they get bad legal advice.  Some do it because they think it will protect people they love.  Some do it because they lose hope of proving their innocence.

Look -- Polanski is scum for raping a child.  But if we overlook corruption on the part of governmental officials because we don't like the victim, that weakens the entire system.  The next time someone is accused of a heinous crime, that guy might actually be innocent.  If we've overlooked corruption between the D.A. and the judge for Roman Polanski because we know Polanski is guilty, then we're requiring the innocent person to make his case before that same corrupt system.  It's not fair and it results in innocent people being punished. We have to take things like this seriously because keeping the system beyond reproach is the only proof that we take guilt and innocence seriously.

Both substance and procedure must be in order before justice can be done.  You can't have one without the other.  Sorry, Polanski-haters.  Yes, he did a horrible thing, one that society ought not to forgive or overlook.  But our justice system must be able to withstand a searching analysis before it punishes even human slime like this guy.  Otherwise, it is not a justice system at all, but a way to deprive unpopular people of their freedom.  You might be unpopular yourself one day.  If you were unpopular and accused of a crime, at minimum, you'd want to have a fair and impartial judge handling your case -- not one who was in cahoots with the prosecution.

At the same time, Polanski's defenders must bear in mind that even if the charges are thrown out, this does not mean Polanski is innocent. It is not an exoneration of his behavior. It doesn't mean Polanski didn't rape that girl, because he did. And if you're so sure he's innocent, ask yourself if you'd let your own naïve and attractive thirteen-year-old daughter go over to his house alone.

No, a dismissal of the charges does not say anything, one way or the other, about the defendant -- it would be an acknowledgement that the system, in this instance, fell short of the very high standards to which we rightly hold our criminal justice system. Did it in this case? We can't know until and unless Polanski is presented to the only judicial system in the world that can evaluate his claim. That court isn't in Switzerland and the charge that our system was corrupted is a serious one that needs resolving.

I say, bring Roman Polanski back to California and let him put on his case before an impartial judge. He will get a fair hearing, and a just result.

3 comments:

Ken said...

"Both substance and procedure must be in order before justice can be done. You can't have one without the other. Sorry, Polanski-haters. Yes, he did a horrible thing, one that society ought not to forgive or overlook. But our justice system must be able to withstand a searching analysis before it punishes even human slime like this guy. Otherwise, it is not a justice system at all, but a way to deprive unpopular people of their freedom. You might be unpopular yourself one day. If you were unpopular and accused of a crime, at minimum, you'd want to have a fair and impartial judge handling your case -- not one who was in cahoots with the prosecution."

I agree entirely, of course. But I'm not completely sure who you are arguing with. Aside from anonymous idiot posts, I haven't seen anyone seriously arguing that Polanski ought to be jailed or hanged without an opportunity to have his legal arguments heard. Rather, I think the most vociferous critics are attacking the apologias for Polanski, which condemn the continuing prosecution for other reasons -- offensive and silly reasons.

Transplanted Lawyer said...

This whole thing looks like a "teachable moment" to me. It's not just about Polanski, it's about why the criminal justice system is the way it is. I'm not aiming at serious people; I'm aiming at people who are having difficulty mentally getting past either Polanski's guilt or his celebrity.

Arnie said...

I actually enjoyed most of his movies, but agree he should be brought to CA for a fair trial. It is unfortunate, though, that the then-victim will have her name dragged all over the media because of it. Perhaps he could be tried "in abstentia?"