Thoughts on the Polansky Trial

Lots of people apparently find Roman Polansky’s libel victory over Conde Nast to be an odd result. The claim was that Vanity Fair falsely asserted that in 1969, while en route to the funeral of Sharon Tate, his wife, who had just been murdered, Polanski groped and propositioned a Scandinavian model, promising to “make another Sharon Tate out of you.” Polanski denied it, in tears, and the jury agreed. (England has generally abolished juries in civil cases but still uses them for libel cases.)

The trial did indeed have several strange features. The first was that the plaintiff was not a nice person: Roman Polansky is a long-time fugitive from US justice, having fled while on bail before sentencing, after admitting the statutory rape of a 13 year old girl. This fact caused the second odd feature of the trial: fearing extradition to the US to serve his sentence were he to set foot in the UK, Polansky was allowed to give his evidence by video. Which of course exacerbates the third apparent oddity of the trial: that it was held in the UK (a country with pro-plaintiff libel laws), when the Vanity Fair, the magazine in which the article at issue appeared, is US-based.

Actually, it’s not that strange. Vanity Fair circulates in the UK, so it’s fair game there — and since its sold on newsstands and (I imagine) to subscribers, it’s considerably fairer game in the UK than, say, web pages which are delivered for free and by the readers decision to pull a page rather than a publisher’s decision to send physical copies to the jurisdiction.

The decision to allow the video testimony is a closer call; I could certainly understand a court saying that if plaintiff has unclean hands he shouldn’t come to court. And I’m no great fan of video testimony in general. But idea that the courts should be open to do justice even in the exceptional case where the plaintiff cannot risk being in the jurisdiction has its admirable qualities too.

The least strange aspect of this decision is that Polanski won.

The defense tried to blacken Polanski’s name by suggesting he slept around. He admitted it. End of issue: that sort of tactic doesn’t work anymore, at least against men. More substantive was the suggestion that a fugitive from justice for statutory rape is the sort of person who can’t be libeled — like (traditionally) a prostitute or (contemporaneously) a war criminal. What overcame that, I suspect, was the seeming cruel falseness of the anecdote, and Polanski’s emotional reaction to it.

I began to suspect Polanski might win as soon as I learned the name of the source of the allegation in question: Lewis Lapham.

Yes, that would be the same Lewis Lapham who wrote and published a fabricated summary of the speeches at the GOP convention — a summary written before the speeches were given, but published after it.

OK, Polanski is not a nice guy. But despite the fancy pedigree

Mr. Lapham has lectured at many of the nation’s leading universities, among them Yale, Princeton, Stanford and the Universities of Michigan, Virginia and Oregon. He is a frequent guest on television and radio talk shows both in the United States and in England, France, Canada, Germany and Australia. He was the host and author of the six-part documentary series “America’s Century,” broadcast on public television in the United States and in England on Channel Four in the autumn of 1989. Between 1989 and 1991 he was the host and Executive Editor of “Bookmark,” a weekly public television series seen on over 150 stations nationwide. Lapham is a member of The Council on Foreign Relations, The Century Club, the Advisory Council to the New School University and Chair of the Board for The Americans for Libraries Council.

… Lapham’s credibility as a reliable reporter must surely now be reduced be zero?

After all, Lapham testified that while parts of his story were wrong, like the date, the key allegations were true:

Testifying in a libel case setting Mr. Polanski, 71, against Vanity Fair magazine, which reported the anecdote in an article in July 2002, Mr. Lapham said the incident had embedded itself in his memory.

“I was impressed by the remark, not only because it was tasteless and vulgar, but because it was a cliché,” the 70-year-old editor said.

And now, to ice the cake, the model whom Polanski supposedly tried to pick up — who wasn’t called to testify in the libel trial — says no such thing ever happened.

On balance, this verdict feels like justice. But I fear it will not have the consequences it should. In ye olde days, a man disgraced by being found by a jury to be a less believable witness than a rapist would resign his clubs and go hide out somewhere and take up drink. Now, I suppose Lapham will just write about it. But whoever publishes it better hire a good fact-checker.


Update (7/26): Over at the Yin Blog, Tung Yin makes an excellent point:

If Polanski has been libeled, he deserves to be vindicated. But he also deserves to serve his sentence. So a truly just result would have had him testify by video — because he was in one of our prisons.

I should add that one of the reasons why I think the issue of allowing the extraterritorial testimony is genuinely hard on these facts is that there’s zero chance that denying relief might compel Polanski to travel and risk serving his time. Thus, the case for withholding access as a coercive means to compel compliance is weak; the withholding must be justified either as retributive (which is not the UK court’s job here) or as somehow beneath the court’s dignity. Counterbalancing the latter is the idea that two wrongs don’t make a right.

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8 Responses to Thoughts on the Polansky Trial

  1. Dilan Esper says:

    I think you are way too dismissive of what you call the “unclean hands” argument. This wasn’t simply a case of a distasteful plaintiff who was nonetheless libeled. This was a case where a person who refuses to recongnize the legitimacy of a legal decision that the United Kingdom recognizes as legitimate (hence his fear of extradition) nonetheless being allowed to take advantage of the United Kingdom’s plaintiff-friendly libel laws, which allow him to obtain relief that he might not be able to obtain in the courts of other countries.

    And furthermore, the particular crime that gave rise to Polanski’s fear of extradition is particularly heinous. I am sorry, but I don’t see a good argument for allowing convicted fugitive child molestors ANY legal benefit in ANY jurisdiction. (Especially since the first thing that Polanski did when he moved to France after fleeing justice in California was take up with a 15 year old actress, which gives rise to a reasonable inference that the man was a dangerous recidivist.)

    The fact is, there seems to be some sort of “great artist” exception to the child molestation laws in France, at least in this case, but it shames the UK that it would make itself an accessory to France’s national policy of protecting a child molestor.

  2. Dilan Esper says:

    I think you are way too dismissive of what you call the “unclean hands” argument. This wasn’t simply a case of a distasteful plaintiff who was nonetheless libeled. This was a case where a person who refuses to recongnize the legitimacy of a legal decision that the United Kingdom recognizes as legitimate (hence his fear of extradition) nonetheless being allowed to take advantage of the United Kingdom’s plaintiff-friendly libel laws, which allow him to obtain relief that he might not be able to obtain in the courts of other countries.

    And furthermore, the particular crime that gave rise to Polanski’s fear of extradition is particularly heinous. I am sorry, but I don’t see a good argument for allowing convicted fugitive child molestors ANY legal benefit in ANY jurisdiction. (Especially since the first thing that Polanski did when he moved to France after fleeing justice in California was take up with a 15 year old actress, which gives rise to a reasonable inference that the man was a dangerous recidivist.)

    The fact is, there seems to be some sort of “great artist” exception to the child molestation laws in France, at least in this case, but it shames the UK that it would make itself an accessory to France’s national policy of protecting a child molestor.

  3. tom stearns says:

    Dilan Esper wrote:

    “I am sorry, but I don’t see a good argument for allowing convicted fugitive child molestors ANY legal benefit in ANY jurisdiction.”

    This is an interesting question, having fled punishment should he be unprotected by the law? Which outlaws should we treat as outlaws?

  4. Dilan Esper says:

    Tom:

    There is a “fugitive disentitlement doctrine” in the US that provides that a fugitive isn’t allowed to prosecute an appeal from his or her criminal case. That doctrine applies to ALL fugitives, even for less serious crimes.

    You ask “having fled punishment should he be unprotected by the law”? He IS unprotected by the law, in Britain. If he so much as sets foot in Heathrow Airport he can be lawfully arrested and extradited. So exactly what protections is he entitled to receive, other than those due process protections that relate to his extradition and conviction, and the conditions of his confinement in prison?

    And as for “[w]hich outlaws should we treat as outlaws”, it is fine to ask that question where we have a close case. It doesn’t seem to me that an adult who used his wealth and celebrity to force a 13 year old girl to submit to a painful anal rape, and then used his wealth and celebrity to flee the jurisdiction after his conviction only to take up with another underage girl in France, presents such a close case.

  5. Mojo says:

    I have to agree with both Professor Froomkin and Dilan Esper (in part). I think that the verdict was correct based on the evidence, but that there shouldn’t have been a case in the first place. The plaintiff should not have been allowed to use the UK justice system while simultaneously refusing to recognise it’s legitimacy. I think the type of crime is irrelevant but time and location do matter. Having previously ignored the law should have no bearing so long as the individual does not continue to flout the law while using it. Even if the individual’s crimes was exposed during a trial, I don’t think that necessarily should bar them from winning the case at hand (otherwise you have a 5th Amendment issue). And I can certainly see ignoring the law in one place while seeking the benefit of the law in another could be legitimate. For example, someone who was convicted in a religious court in Iran but escaped shouldn’t be barred from the protection of the law in a jurisdiction which doesn’t recognise the legitimacy of such courts.

  6. Paul Gowder says:

    So what if Polanksy had sued for libel in France?

  7. Tom Stearns says:

    How does Polanski’s being barred from appealing his conviction of rape, etc. bar him from pursuing private suits or having shelter of the law at all. An outlaw has no claims on civilization’s protections. Is Polanski there? The latter is not so much a question of law but legal philosophy.

    Mojo raises an interesting point. Would a conviction for capital blasphemy in a theocracy be honored by western governments? If the convicting society sees it as extremely heinous (very unique?) why shouldn’t we honor it? Flip side, there ar society’s that allow kidnap & rape as “courtship” (obviously, not related to western courtly love) and don’t consider this heinous. Should western courts be available to these “suitors” even if they haven’t been convicted? Should they be outlawed?

    Frankly, I’ll be happy to see Polanski rot. But if someone shoots him, the state shouldn’t say good-riddance, it ought to prosecute the shooter. If he got in a car accident with a Briton should he be able to file suit in British courts (if the law allowed it)? Even if he got attacked in an American prison he is still not an outlaw.

  8. Dilan Esper says:

    Tom:

    The UK courts are under no obligation (other than to the extent there is an extradition treaty with the US) to honor Polanski’s conviction. If they wanted to say that he didn’t get a fair trial, or (as the French have apparently said) that a great artist should be able to get away with child molestation and live the life of Riley, that is their right. (And that answers your blasphemy hypothetical.) But they have not done that. Indeed, if they did do that, Polanski would have traveled to Britain for trial.

    As for your issue about someone shooting him, of course the state should prosecute the shooter. As the state prosecutes prison murder. The state has a lawful monopoly on force. And my comment reflected that– I said he is entitled to the protection of the law in terms of the conditions of his confinement.

    What he is not entitled to is the right to utilize the courts of the UK, and their liberal libel doctrines, to collect money judgments while at the same time refusing to recognize their legitimacy in determining whether he should be extradited back to the United States.

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