Lawyers for Roman Polanski and his victim in a 32-year-old case joined forces Thursday to ask an appeals court to dismiss a sexual misconduct charge against the director in the interest of justice.
It was a surprise move in a lively hearing where appellate justices peppered lawyers and a prosecutor with pointed questions, often interrupting their arguments to raise new issues.
Associate Justice Laurie Zelon asked the prosecutor why the district attorney's office had not investigated recent allegations of misconduct by a judge and prosecutor during Polanski's 1977 court proceedings.
"Doesn't the district attorney's office have an interest in finding out what happened here?" Zelon asked.
Deputy District Attorney Phyllis Asayama replied, "Yes, we are interested. But I'm not sure we have the proper agency to do this." She didn't elaborate.
Presiding Justice Dennis Perluss, acknowledging there was misconduct by the now deceased judge, also questioned Asayama about whether "the district attorney has an obligation to see that justice is served."
The California Second District Court of Appeal is being asked to decide if it should order a Superior Court judge to consider dismissing the case without Polanski's attendance in court. The justices did not immediately issue a ruling.
"He has to be here," Asayama said, "especially given he had options 30 years ago and he didn't use them."
Polanski, the director of such classic films as "Chinatown" and "Rosemary's Baby," has been a wanted man since he fled to France on the eve of sentencing in 1978 for having unlawful sexual intercourse with a 13-year-old girl.
He was accused of plying the teen with champagne and part of a Quaalude pill then raping her during a modeling shoot at Jack Nicholson's house in 1977.
Polanski was initially indicted on six felony counts, including rape by use of drugs, child molesting and sodomy. He later pleaded guilty to one count of unlawful sexual intercourse.
Polanski reached the plea deal in 1978, but was threatened by a judge with more prison time than previously agreed upon and fled to France before he was formally sentenced.
Polanski is now confined to house arrest in his Swiss chalet in the resort town of Gstaad, and his fate is in the hands of judges in two countries. He is fighting extradition.
Perluss, Zelon and Associate Justice Fred Woods also asked if Polanski could have sought appellate relief before taking the extreme measure of fleeing the country.
"There were a host of alternate remedies to fleeing because a bargain wasn't kept," Perluss said.
Attorney Chad Hummel, who represents Polanski, suggested the extent of judicial misconduct was not known at the time.
"It sends chills up your spine what the judge did," he said. "Would there have been available alternatives at the time? There should be a hearing on that."
If the justices don't dismiss the case, they should send it back to Superior Court Judge Peter Espinoza for a hearing to decide the dismissal question in Polanski's absence, Hummel said.
Asayama insisted such a hearing could not be held without the director's return because of the fugitive disentitlement doctrine, a 100-year-old law that denies hearings to fugitives unless they return. She said making an exception for Polanski would set a bad precedent.
"Do we want to send the message to other defendants that flight is an option?" she asked.
Attorney Lawrence Silver, who represents Polanski's victim Samantha Geimer argued for dismissal on grounds of a recently adopted law allowing victims to have a say in cases. Geimer has repeatedly said she wants the case dismissed, and Silver reiterated that to the justices.
Justice Woods responded that when the law was passed, "No one could have anticipated the facts of this case."
Silver added, "No one in this room would say the proceedings were fair. Thirty-two years is enough."
Among those on hand for the hearing were Polanski's original lawyer Douglas Dalton and the French Consul General of Los Angeles David Martinon, who declined to comment and said he was just there as an observer.
The appeal began last summer when Polanski's lawyers pressed to dismiss the case in California that has haunted the 76-year-old director.
Any decision by the three-judge panel will not immediately affect Polanski's current predicament of fighting extradition from Switzerland to the United States. Still, ordering a hearing on misconduct would put the issue before a judge who already found substantial misconduct in the case.
Hanging over the case is an HBO documentary, "Roman Polanski: Wanted and Desired" which uncovered the judge's actions. Judge Espinoza said months ago he had watched the documentary and determined there was substantial misconduct. But he declined to act because of the fugitive disentitlement doctrine.
Polanski sought dismissal of the case in July after the documentary detailed alleged back-room dealings between the judge and a prosecutor who said he meddled in the case. The former prosecutor recanted his statements after Polanski's arrest.
Marina Zenovich, who directed the documentary, watched the hearing and later said she found the justices' questioning "refreshing" and they seemed to be trying to find the truth.
AP Entertainment Writer Anthony McCartney contributed to this report.
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