Director Roman Polanski isn't giving up on his attempt to find out if U.S. prosecutors intend to put him behind bars if he were to return to the States - and his lawyer isn't mincing his words.
The 83-year-old Oscar winner asked the court to force prosecutors to state on the record whether they believe he has served his time for the 1977 rape of a 13-year-old girl. Polanski contends that he fled decades ago because he got word that the late Judge Laurence Rittenband was going to increase his sentence from three months of psychiatric evaluation to five decades behind bars. L.A. Superior Court Judge Scott Gordon earlier this month denied this request, finding that Polanski isn't entitled to have his demands heard by the court while he stands in contempt of it.
In a motion to reconsider filed Friday, attorney Harland Braun called the order "morally incoherent, legally illogical, and factually deceptive."
"Rather than the 90 days promised Mr. Polanski, this Court threatened Mr. Polanski with up to 50 years in state prison and deportation," writes Braun. "If a defendant flees because of an illegal judicial threat, that threat should be removed before the defendant is expected to return to court."
The attorney argues that Gordon failed to mention in his decision the reason Polanski fled because it eviscerates his theory for applying the doctrine of fugitive disentitlement, which holds that a fugitive from justice can't seek relief from the judicial system whose authority he or she is evading.
"The Court should consider why Mr. Polanski was not charged with unlawful flight by either the State or federal authorities," writes Braun. "Mr. Polanski was as justified in fleeing this Court's illegal conduct as he was to flee the Germans who invaded Poland."
Braun argues that the only question before the court is a simple one: What was Polanski promised 40 years ago? He says declarations of defense counsel, the victim's lawyer and former Deputy District Attorney Roger Gunson all show Polanski's 43 days of psychiatric evaluation were intended to have satisfied his total custody time. Gunson's sworn testimony is currently sealed, and Braun has filed a motion to make that public.
"Once the promise is established, this case solves itself," writes Braun - noting that, while 43 days had been deemed sufficient, Polanski later served more than nine months in Swiss custody while authorities were deciding whether or not to extradite him. "The Court has no legal alternative but to give Mr. Polanski credit for his total custody time in California and Switzerland."
Should that happen, Braun argues that "simple math" shows Polanski has already served more time than the 90 days he was promised. (Read the motion in full below.) He also says that judges asking prosecutors, "What is the people's position?" is a commonplace occurrence in criminal courtrooms, and there is nothing strange or unprecedented about Polanski wanting that question answered in his case.
"What if the People represented to the Court that Mr. Polanski owes no more custody time?" asks Braun. "Does that not simplify this proceeding?"
A hearing on the motion to unseal Gunson's testimony is currently set for April 25, which will likely also be the date the motion to reconsider is heard.