Film director Roman Polanski has asked a California appeals court to overrule a judge who refused to sentence him in absentia to jail time he already served after his 1977 conviction for having sex with a 13-year-old girl.
Polanski (76), who is under house arrest in Switzerland awaiting a decision on a US extradition request, said in a filing yesterday with the California Court of Appeals in Los Angeles that Superior Court Judge Peter Espinoza committed a legal error.
Judge Espinoza ruled in January that, as a fugitive, Polanski is not entitled to be sentenced without returning to California.
"The California Court of Appeal needs to intervene in this case now, appoint special counsel or have the Attorney General step in, to preserve the integrity of our state's criminal justice system," Douglas Dalton, a lawyer for Polanski, said in a statement.
Mr Dalton said the trial court and District Attorney "appear to be trying to protect themselves from scrutiny at the expense of the constitutional rights of a defendant."
New evidence of misconduct by prosecutors and a judge in 1977 has come to light in testimony in February and March of this year, Polanski's lawyers said in yesterday's filing.
Roger Gunson, the prosecutor who handled the case in the 1970s, said this year that he told his supervisors at the Los Angeles County District Attorney's office in 1977 that he didn't think Judge Laurence Rittenband, who has since died, could be fair to Polanski, according to the filing.
Mr Gunson told his bosses that Judge Rittenband needed to be disqualified from the case because of his statements and contacts he had had with third parties, Polanski's lawyers said.
Polanski's lawyers were never told about the misgivings the prosecutor shared with his supervisors or about the draft request Mr Gunson had written to seek the judge's disqualification, according to the filing.
Mr Gunson's supervisors didn't give him permission to go forward with the disqualification request, Polanski's lawyers said. Judge Rittenband, who had taken Polanski's guilty plea in 1977, reneged on a promise that the director's time spent in prison for a diagnostic study would be his entire punishment, Polanski's lawyers have argued.
Polanski fled the US in 1978 after the judge told his lawyers he would send the director back to prison.
A spokeswoman for Los Angeles District Attorney Steve Cooley declined to comment on yesterday's filing, saying prosecutors would file a written response with the court.
The appeals court in December refused to overturn Judge Espinoza's ruling denying Polanski's request to dismiss the case because of the alleged judicial and prosecutorial misconduct.
The appellate panel suggested at the time that, if Polanski wanted a hearing on the allegation, he could ask to be sentenced in absentia. The Swiss government has said it won't act on the extradition request until the California courts have resolved Polanski's sentence, his lawyers said.
Bloomberg