Legal Commentary

DA Objects To Roman Polanski's Request for Sentencing in Absentia

By Jeralyn

In affirming the denial of Roman Polanski's motion to dismiss the criminal charges against him last month, the California Supreme Court noted that Section 1173 of the California Penal Code allows for felony sentencing in absentia. The pertinent part of the statute reads (via Lexis.com):

If the conviction is for a felony, the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence, and that he or she be represented by an attorney when judgment is pronounced, and the court approves his or her absence during the pronouncement of judgment...

The Court said "Based on the oral arguments of counsel, this court would not expect any objection to be made if Polanski should request to be sentenced in absentia."

Polanski then moved to be sentenced in absentia. Today, the L.A. prosecutor objected. A hearing is set for next week. I haven't found a copy of the prosecutor's response, but I also haven't seen any California cases that uphold the denial of a defendant's request because of an objection from the prosecutor. While the decision is up to the judge, I think the prosecutor is on shaky ground. Here's why: [More...]

According to news accounts, their reasons are that Polanski has been a fugitive and celebrities shouldn't be treated any differently than anyone else. It's the defendant's constitutional right to be present that is at issue. The statute allows him to waive that right. The law allows the judge to make the call on the defendant's request. The state doesn't have a constitutional right to insist on his presence. There's nothing in the statute that says "except for fugitives." The request can be made by all defendants, rich and poor.

The prosecutors said allowing Polanski to be sentenced in absentia would set a horrible precedent for future defendants. If that's the case, they should lobby the California legislature to change the law to exclude fugitives from being eligible to make the request. Instead, they are attempting to have the law selectively enforced based on a status for which the statute provides no exception, and by their completely unsupported belief that only celebrities and the rich would seek to avail themselves of the statutory allowance.

The statute does not set forth factors for the judge to decide a defendant's request. The prosecutor wants to just make some up. My prediction: The judge will allow Polanski to be sentenced in absentia. If not, I hope he's allowed to appeal the decision immediately, and request a stay of execution of the extradition warrant while it's under consideration. (Although I don't know if he's allowed to do either.)

Full post as published by TalkLeft on January 16, 2010 (boomark / email).