How Prosecutors Bungled Polanski With Paperwork, Arrogance

Analysis: Why is Roman Polanski free? Because the L.A. district attorney refused to hand key documents over to the Swiss

ANALYSIS

It was the paperwork, stupid!

That, in essence, is what freed Roman Polanski. Paperwork, and arrogance.

The Swiss government on Monday refused to extradite Polanski back to face justice over the rape of a teen girl because the Los Angles District Attorney’s office and the Department of Justice didn’t want to hand over key documents that they had requested.

So once again, Los Angeles prosecutors have a disastrous loss on their hands, an embarrassing end to a three-decade-long saga of preening and posturing on both sides of the Atlantic.

The U.S. authorities finally had Polanski firmly in their hands … and they let him slip away.

Over some paperwork.

What the district attorney and the DOJ never seemed to understand was that for the Swiss, the Polanski case was never about the sodomization of a 13-year-old, or even his flight from justice. It was about that most American of tradition: due process.

Specifically, they wanted to see the closed testimony that Roger Gunson, the former deputy district attorney who handled the Polanski case back in the 1970s, gave under seal back on Feb. 26 (which, as a curious aside, the meticulous Swiss incorrectly cite as Jan 26th in their Monday statement).

If it wasn’t for the Americans' stringent refusal to hand over that secret testimony, Roman Polanski would likely be sitting today in a U.S. courtroom, a U.S. jail or – even more likely – a U.S. studio executive’s office.

That testimony was to be used in the unfortunate (but not unlikely) event that the ailing Gunson would be unable to appear in court. Polanski's lawyers repeatedly tried to get it opened and handed over to the Swiss. Their failure to do so is the reason Polanski is celebrating his freedom to move about France, Poland and possibly Switzerland.

(He can also confidently travel to Namibia, North Korea and China, none of whom have an extradition treaty.)

Polanski’s lawyers, who declined to comment to TheWrap on Monday, claimed that testimony revealed judicial misconduct back in the 1970s and that then Judge Laurence J. Rittenband’s sentence of 42 days in a prison psychiatric unit was supposed to be his full sentence.

If that was the case, under the extradition treaty with the Swiss, the U.S. might have had no case. Or they might have – but the Swiss, who thought it odd the U.S. started going after Polanski again in 2005 after decades of non-action, wanted all the facts.

Without them, Swiss Justice officials didn’t feel that Polanski, who has admitted he drugged and raped a child, fairly received due process from either the district attorney or the DOJ. In fact, the Swiss didn’t feel they themselves received fair treatment on May 13, when the Department of Justice refused, based on Los Angeles Superior Court Judge Peter Espinoza’s May 10 decision to keep it sealed, their request’s to see Gunson’s Feb. 26 testimony.

That’s why the Swiss said Monday that “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 and that the extradition request is undermined by a serious fault.”

Even with a fiasco equal to the O.J. Simpson acquittal staring him in the face, Cooley made it clear Monday he still didn’t get the essence of the Swiss position.

“To justify their finding to deny extradition on an issue that is unique to California law regarding conditional examination of a potentially unavailable witness is a rejection of the competency of the California courts,” Cooley said in a statement.

The Swiss insisted that if they were going to turn Polanski over to American justice, they wanted to have all the facts and information about the case, not just what the U.S. wanted to show them.

Dismissive as usual, Cooley swept all that away: “the Swiss could not have found a smaller hook on which to hang their hat.”

And the thing is, whether the hook was small or not, it wasn’t unknown to Cooley. Had he listened, the district attorney might’ve been able to turn the case around instead of, as he did today, make a hollow vow to continue chase Polanski around the world.

On May 9 in an interview with a Swiss newspaper, as TheWrap reported at the time, Swiss Justice Minister Eveline Widmer-Schlumpf pointed out that Swiss authorities were still finalizing what documents they had and what documents they need to examine whether the US request met the conditions to extradite Polanski.

Let’s be honest – Roman Polanski should have been a pretty easy collar, even in the intricacies of international law and gaggles of self-serving supporters. Yet, with Monday’s decision by the Swiss, Cooley now has a disaster to add to the collection.

More of a disaster for Cooley is that a confessed child rapist goes free and that the world laughs at the failure of American justice. It’s a disaster that has left Bernard Kouchner the French Foreign Minister and founder of Doctors Without Borders, “delighted.” He’s not the only joyous one. Calling the Swiss decision “a beautiful lesson in democracy," author, French media darling and Polanski pal, Bernard Henri-Levy, also complimented his fellow Europeans for “refusing to yield … to US justice.”

"The time for calm has come," French Culture Minister Frederic Mitterand said in Paris. "The difficult past, the rich personality, the universally-admired works of Roman Polanski should all regain their standing."

They might. But in this case, American justice won’t … and that’s a real crime.