Wednesday, September 30, 2009

Reply to Reed Smith on the Pervert Polanski and Fairness in America

by Pa Rock
Citizen Cynic

There were two comments on my posting yesterday that dealt with pedophile film director Roman Polanski. The first was from my friend, Mike Box, an attorney, who made the point - quite well - that rich criminals often have better outcomes in the American legal system than their poor counterparts. Reed Smith responded to the blog posting and Mike's comment with the following:

"After reading Mr. Box's comment I have to wonder. We all now know your opinion, I want to know your prediction. Will justice be served and Polanski get your fair deal of ten years, or is Mr. Box right and "the rich never swing"


Mike Box and I have a great deal in common. We are both old, exceedingly cynical, and are steeped in a knowledge of how things work that comes from a lifetime of experience. Unfortunately for society in general and young children in particular, Mike is right. The rich in America never swing. Oh there may be oddball exceptions, like when a judge in Arkansas found Wal-Mart heiress Alice Walton guilty of drunk driving despite her dream team of high priced lawyers, but generally the rule stands.

One big advantage that the rich have over the rest of us is the ability to get their own version of the story out through their influential friends and a fawning media. That was happening in spades this week with the Polanski travesty. I noted yesterday that directors Pedro Almodovar, Martin Scorcese, and Woody Allen had collectively "demanded" that Polanski be released from his Swiss prison cell.

Now the noise from Hollywood is getting even goofier. Whoopi Goldberg has been quoted as saying that the incident that happened thirty-two years ago wasn't really a rape-rape! Seriously! So there are degrees of rape - even when a forty-three-year-old man has intercourse with a thirteen-year-old girl who doesn't want to do it? So that really isn't a rape-rape? What the fuck-fuck is it then?

Debra Winger minimized the sex crime as a "three-decades-old case that is dead but for minor technicalities. "We stand by him and await his release and his next masterpiece." In other words, the washed-up actress is available for any role that Polanksi might throw her way. Harvey Weinstein, a big-time movie maker in Hollywood referred to Polanski as a "humanist" who was a victim of a "miscarriage of justice". Are you listening, Roman? Weinstein is itching to fund one of your future masterpieces.

But, hey, that's how things work in Hollywood, America.

Roman Polanski's second wife, Sharon Tate, and several of her friends were killed by the Manson family in 1969. Today her sister, Debra, described her former brother-in-law as "brilliant" and stated that she feared he could not get a fair trial in the United States. She went on to say that Polanski did not forcibly have sex with the girl, and that it was a "consensual matter".

The girl described it differently back in the day. She said that he invited her into the hot tub of a major Hollywood star, gave her part of a Quaalude and some bubbly champagne, and then had sex with her against her will. But let's say, just for purposes of discussion, that she did not object - in fact, let's say that she eagerly consented. Just how does a thirteen-year-old "consent" to have sex with a forty-three-year-old pervert? Answer: A child cannot consent to have sex with an adult - ever! Say it with me, Debra: "A child cannot consent to have sex with an adult!"

And before we let Hollywood canonize Roman Polanski, let's not forget that he also committed the crime of fleeing the country in order to avoid prosecution. He jumped bail!

Poor Americans who have sex with children and get caught go to jail, often for long periods of time, and when they get out they are placed on sex-offender lists and tracked for the rest of their lives by an outraged society. Polanski, and apparently much of Hollywood, feels that he is better than the rest of us and special rules should apply.

Reed, this is the country that Mike Box and I inherited from our folks. Some things have gotten better during our watch, but much remains to be done. My hope is that you and your generation pick up the torch and lead our descendants on into a bright and glorious future - one in which the rich do swing, just like the rest of us mere mortals.

I am very proud of you.

Uncle Rock

P.S. Now let's hear from Mike!


Mike Box said...

For the record my opinion was that it is difficult to prosecute a case when the complaining witness is no longer complaining.

The rules were taught to me by a judge, probably long dead, from a rural Missouri county. I think they were not opinions, though they will never appear in print in any learned treatise. You have to look closely at the way American Justice treats people to learn how the rules seem to be consistently applied.

There are exceptions to the rules. Patty Hearst was an exception. Her family’s fortune could not overcome her apparent willingness to commit crime. There was no Stockholm syndrome defense to save her. She was, in the minds of the American people, one with her black captors. She got hoisted on the petards of the first rule.

O.J. Simpson, in the original case, is another exception. The rules say he would be convicted because of the color of his skin. He was not. Rule number two came into play. O.J. was wealthy.

It appears that sufficient evidence exists to bring Mr. Polanski to trial. Mr. Polanski remains in a foreign land, subject to foreign law, and is able to bring the weight of considerable legal skill in his fight to be extradited to California.

The Hollywood elite consider his arrest a travesty of justice. I am certain pressure is being brought to bear on the California Attorney General and the United States Secretary of State, not because of who they are but because of the offices they hold.

It is going to be difficult to bring Mr. Polanski to trial. That is a fact, not an opinion. If you want to bring Mr. Polanski to trial, then join the voices calling for his extradition.

Public opinion is important, in part because one reason for punishing criminals is to deter similar conduct from others likely to commit similar offenses. Public opinion reminds the politicians of that important fact. That is why I suggested that it is important for society that Polanski be behind bars.

As to my opinion about Mr. Polanski’s innocence or guilt, I do not have one.

I will form an opinion after, and only after, there is a trial, evidence is adduced, witnesses are examined and cross-examined, and a true verdict delivered.

For the record I no longer practice law. I am doing much better, thanks.

Reed Smith said...

Thankyou for the answer back...Thanks to the both of you.

I thought after college my learning days were over. That was until I religously started reading the ramble. The two of you are teaching me something new, whether it be opinionated or fact, every time I click on Pa Rock's Ramble in my favorites box.

P.S. As for my opinion of Mr. Polanski, Ten years sounds about right.

Pa Rock's Ramble said...

This is just me being a bit cantankerous, but I think both O.J. and Patty Hearst prove the rule rather than the exception. Yes, O.J. was black and he got off - but he was also a wealthy athlete and somewhat of a movie star - rich and famous. Ms. Hearst was vilified by the public, but she spent darn few days behind bars once she was captured - stratospherically rich and famous! And, just for the record, Alice Walton didn't suffer much either once she got over her snit - she paid her fine and went home!

"The rich are very different from you and me." (Credited to both Ernest Hemingway and F. Scott Fitzgerald.)

You guys rock!

Mike Box said...

There is another rule: All prosecutions are discretionary. No law requires the Prosecuting Attorney (District Attorney) to charge a crime and prosecute a case.

So in a case like Polanski’s the D.A. for Los Angeles County also gets to weigh the heft of Hollywood’s contributions to his (currently Steve Cooley) future.

The word covet comes to mind. Does he covet his current position, does he covet higher office, or does he covet their money?

For the record the L.A. D.A. is a non-partisan official.

I don’t know what clown decided that taking elected office outside the realm of partisan politics was a good idea. Although I think it began as a Missouri Republican backlash to Kansas City Democratic politics in general and the reign of Boss Tom Pendergast in particular.

That “deformation” of political rule accompanied the great model for city governance, the weak mayor – strong city manager model and the cumbersome Board of Police Commissioners which took control of local law enforcement away from City Hall and put it in Jefferson City. Apparently the “deformers” didn’t even trust the independent professional city manager with police officers.

The digression was intentional. The subject of Polanski is tricky on many levels.

This is not a simple case of putting a talented filmmaker in jail for toying with a teenager. Indeed, even I am dismayed that pubic hairs are being split over the definitions of rape, child rape, and consensual conduct.

While the coffee kicks in I want to remind everyone that two things have to occur for a crime to have been committed.

First of all is the Actus Reus, or the guilty act. As Mr. Macy said, Polanski inserted himself into this child. The insertion is the actus reus.

The other necessary element is the Mens Rea, or the culpable state of mind. I recall the mens reas standards under the Model Penal Code by a mnemonic device, pkrn-sl. P is purposeful, k is knowing, r is reckless, and n stands for negligence. The sl is the tricky part but it stands for strict liability.

Most felonies are of the p and k variety. Purposeful is seldom used so knowing is the general standard.

Most misdemeanors are n for negligence, though some reckless conduct can rise to felony or be treated as a lesser offense.

Statutory Rape is a strict liability offense. If Polanski were to be charged with Statutory Rape the consent of a thirteen year old child would be of no legal consequence to his defense.

She may have looked, acted like, and had identification showing her to be a twenty-three year old woman. That doesn’t matter, she is what she is.

You do not need a requisite mental state to have been formed for the commission of this class of crime. Only the actus reus is needed.

All that to say that there is more than one way to skin a cat.