ORIGINAL PROCEEDINGS in mandate. Peter P. Espinoza, Judge. Petition denied. (Super. Ct. No. A334139).
The opinion of the court was delivered by: Zelon, J.
CERTIFIED FOR PUBLICATION
In another chapter of what surely must be one of the longest-running sagas in California criminal justice history, Roman Polanski, a fugitive since 1978, asked the trial court to exercise its discretionary authority to dismiss the criminal prosecution against him that has been pending since 1977. The trial court declined to consider Polanski's request until Polanski submitted to the court's jurisdiction by returning to the United States and appearing in court. Polanski asks this court to compel the trial court to dismiss the action or, at least, to conduct an evidentiary hearing on Polanski's request. We conclude that the trial court did not abuse its discretion in applying the fugitive disentitlement doctrine and refusing to consider dismissing the action. In so doing, we do not disregard the extremely serious allegations of judicial and prosecutorial*fn1 misconduct that have been brought forward, but urge the parties to take steps to investigate and to respond to the claims.
FACTUAL AND PROCEDURAL BACKGROUND
I. Information Established by the Documentary Record, 1977-1978
The limited documentary record of the proceedings in this case furnishes little insight into the serious issues presented by this matter. Roman Polanski was indicted by a grand jury in March 1977 on six counts: furnishing a controlled substance to a minor (Health & Saf. Code, § 11380, subd. (a)); a lewd or lascivious act on a child under the age of 14 (Pen. Code,*fn2 § 288*fn3 ); unlawful sexual intercourse (§ 261.5*fn4 ); rape by use of drugs (§ 261, subd. (3)*fn5 ); perversion*fn6 (§ 288a, subds. (a) & (c)); and sodomy (§ 286, subds. (a) & (c)*fn7 ). Polanski initially pleaded not guilty.
The district attorney's office agreed to a plea bargain with Polanski at the request of the family of the victim, Samantha Geimer,*fn8 who was 13 years old at the time of the offense. In light of Geimer's age and fears about the trauma that an extremely high profile trial would cause for her, Geimer's family, through counsel, advocated strongly for a plea bargain to protect her from further harm. On August 8, 1977, Polanski changed his plea from not guilty to guilty on count 3, unlawful sexual intercourse. In the course of his plea, Polanski acknowledged that the trial court would determine whether he would receive a felony or misdemeanor sentence; that his punishment could range from probation, to up to one year in county jail, to 20 years in state prison; and that the judge would not determine Polanski's sentence until he had received a report from the Probation Department and heard the arguments of counsel.
The trial court then instituted mandatory proceedings to determine whether Polanski was a mentally disordered sex offender. The court appointed two psychiatrists to evaluate Polanski and set a further hearing for the mentally disordered sex offender hearing. The hearing was scheduled for September 19, 1977.
On September 19, 1977, the trial court conducted a hearing and determined that Polanski was not a mentally disordered sex offender. The court acknowledged that it had read and considered the probation report in the case and asked whether there was any legal cause why judgment should not be pronounced. Polanski's trial counsel, Douglas Dalton, answered that there was no legal cause why judgment should not be pronounced. The court invited Dalton to argue on sentencing, and Dalton argued that Polanski should be given probation as recommended by the probation department. Deputy District Attorney Roger Gunson argued that Polanski should receive time in custody.*fn9
After identifying various considerations that the court would incorporate into its sentencing decision, the court stated, "This Court, i[n] sentencing the defendant, will do so upon the basis of fitting the punishment to the crime, yet at the same time weighing all of the circumstances surrounding the incident, including the defendant's background and lack of criminal record, and all factors in mitigation and aggravation of the offense. [¶] It is the judgment of this Court that the defendant be committed to the custody of the Department of Corrections at its prison facility in Chino, California, where he will be confined for a period of 90 days and undergo a diagnostic evaluation, pursuant to the provisions of [section] 1203.03 of the Penal Code. [¶] The purpose of the Court in ordering the in-depth diagnostic study is better to enable the Court to reach a fair and just decision as to the sentence to be finally or eventually imposed. [¶] The defendant will be returned here 90 days hence for further proceedings." Neither Polanski nor the People objected to the diagnostic study order. The court stayed the execution of the diagnostic study for 90 days to permit Polanski to complete a film he was directing, stating that the stay would "certainly" not extend past 90 days, "if it could be avoided." The diagnostic study, dated January 25, 1978, contained recommendations that Polanski be placed on probation.
On February 1, 1978, Polanski failed to appear in court for a scheduled sentencing hearing and a bench warrant was issued for his arrest.
Dalton filed a verified statement of disqualification for cause of the trial judge, Judge Laurence Rittenband, on February 14, 1978. On February 21, 1978, Judge Rittenband filed a verified answer to the disqualification statement in which he denied bias but consented to the transfer of the matter.
II. Allegations of Judicial Misconduct Known to or Knowable by Polanski at the Time of His Flight
Here we diverge from the indisputable facts of what has gone before in this matter to allegations presented by Polanski in documents filed with the courts in 1978, 2008 and 2009 concerning events that occurred prior to Polanski's flight from the United States immediately before the February 1, 1978 sentencing hearing. These allegations-and they must be termed "allegations" because no court has ever held an evidentiary hearing and made factual findings concerning their veracity-are in many cases supported by considerable evidence, including declarations from both prosecutor Gunson and defense counsel Dalton. Some of these allegations were disputed by Judge Rittenband in 1978 in his response to the disqualification papers Dalton filed, and this account of the pre- flight events is included below as well. To the extent that these allegations are true-and from the documentary evidence filed with this court, it appears to this court that there is a substantial probability that a court conducting an evidentiary hearing would conclude that many, if not all, are true-they demonstrate malfeasance, improper contact with the media concerning a pending case, and unethical conduct.
A. Allegations of Judicial Misconduct at a Pre-order In-chambers Meeting with Counsel, September 1977
Under penalty of perjury, Dalton and Gunson have both described an unreported in-chambers meeting among the trial judge, Dalton, Gunson, and probation officer Irwin Gold prior to the trial court's order referring Polanski for the diagnostic study. In a 1978 verified answer to the disqualification papers, the trial judge responded to some of the then aired allegations of judicial misconduct.
Douglas Dalton, 1978:*fn10 "On September 16, 1977, prior to ordering this very diagnostic study, Judge Rittenband stated to Deputy District Attorney Roger Gunson, Probation Officer Irwin Gold and defense counsel Douglas Dalton in his chambers that the diagnostic study at Chino would constitute the defendant Polanski's punishment and that there would be no further incarceration. (In fact, at the time of the September 16, 1977, meeting, he stated he expected a favorable report from Chino.) [¶] Deputy District Attorney Gunson and Probation Officer Gold had stated in this September 16, 1977, meeting that the use of a [section] 1203.03 study as punishment was an improper utilization of that provision. Nevertheless, the Judge stated that he would use this method of incarceration rather than the county jail because Polanski would be safer at Chino than in the county jail. Judge Rittenband stated that 60 days at Chino would be sufficient time in custody to constitute the defendant's punishment." Dalton further stated that "Judge Rittenband told defense counsel Dalton that at the hearing he should argue for probation, that Deputy District Attorney Gunson should argue for incarceration, and that then the Judge would order the diagnostic study pursuant to Section 1203.03 of the Penal Code."
Douglas Dalton, 2008: "Several days before September 19, 197, the date scheduled for the Probation Hearing and Sentencing, Judge La[u]rence Rittenband told Deputy District Attorney Roger Gunson, Deputy Probation Officer Irwin Gold, and me that he had already decided to send Mr. Polanski to prison for a `diagnostic study' under section 1203.03 of the Penal Code as his complete punishment under the plea if the prison returned a favorable report and the press were not told of the agreement. [¶] Judge Rittenband neither sought nor listened to any opinions or recommendation of the parties present. Not only had the minor's family urged that Mr. Polanski not serve any time in prison, but the probation report also recommended a sentence of probation only." According to Dalton, "Deputy District Attorney Gunson and Deputy Probation Officer Gold both objected to the use of Penal Code section 1203.03 as punishment, stating that it was an improper and illegal use of the provision. Judge Rittenband disregarded their objections. Notwithstanding the fact that he had already made up his mind and pre- determined the result, Judge Rittenband directed Deputy District Attorney Gunson and me to engage in the charade of arguing our respective positions at the Probation and Sentencing Hearing on September 19, 197."
Roger Gunson, 2009: "After Mr. Polanski's plea in August 1977, Judge Rittenband informed both Mr. Polanski's lawyer, Douglas Dalton, and me that Mr. Polanski would be sent to Chino State Prison under Penal Code section 1203.03 as his punishment. At that time, I told Judge Rittenband that the diagnostic study was not designed to be used as a sentence, but Judge Rittenband said that he was going to do it anyway."
Judge Rittenband: "I had a discussion in chambers with Dalton and Roger Gunson, the Deputy District Attorney, about possible sentences. I told them and the probation officer, who was present, that I would not follow the probation officer's recommendation for straight probation and that I felt time in custody was indicated. I indicated that I was concerned that Polanski might be the subject of an attack in the County Jail by other jail inmates who traditionally dislike child molesters and that I instead would commit Mr. Polanski to the state prison at Chino for a 90-day diagnostic study. At that time, I stated I wanted such a study to assist me in determining what sentence to impose on Polanski."
B. Trial Court's Alleged Declaration of Decision to Impose Additional Punishment and to Require Polanski to Waive His Rights to Fight Subsequent Deportation; Alleged Refusal to Consider Evidence to be Adduced at Sentencing Hearing
Douglas Dalton, 1978: "On or about January 30, 1978, Judge Rittenband met in his chambers with Deputy District Attorney Roger Gunson and defense counsel Douglas Dalton. Judge Rittenband stated that the diagnostic study from California Institution for Men, which recommended probation, was the worst he had ever seen and a complete whitewash of the defendant and that he had determined to send him back to prison." Dalton alleged that the trial court had hatched a plan to make the court look tough on Polanski, but with unpublicized relief coming later provided that Polanski left the country: "On January 30, 1978, at the meeting described in his chambers with Deputy District Attorney Gunson and defense counsel Dalton, Judge Rittenband had stated that he intended to send Polanski to state prison pursuant to Section 1168 of the Penal Code and then permit him to be released after the expiration of 48 days upon the condition that he would voluntarily agree to be deported from the United States. Section 1168 of the Penal Code would permit the Judge to retain his jurisdiction to modify the sentence within 120 days.[*fn11 ] Deputy District Attorney Gunson and defense counsel Dalton had been told by the Judge that neither the Judge, Dalton, nor Gunson need explain to them (the newsmen) that Section 1168 of the Penal Code would permit the Judge to modify the sentence within 120 days, and tha[t] the sentence he would pronounce in open court would state only th[at] Polanski was sentenced to state prison for the term prescribed by law."
According to Dalton, the parties reconvened in chambers the following day to meet again with the trial court. "Another meeting was held in chambers on January 31, 1978, with Judge Rittenband and attended by Roger Gunson, Douglas Dalton, and Lawrence Silver, the attorney for the involved girl and her family. Discussions had taken place regarding the defense possibly having an evidentiary hearing in order to endeavor to change the current position of the Judge. Judge Rittenband expressed his then existing opinion that there was nothing which could be produced by the defense that would influence him regarding his intended sentence. Judge Rittenband further stated that he had not believed either Polanski or DeLaurentiis at the evidentiary hearing regarding the Munich trip[*fn12 ] and that DeLaurentiis was `so slick' and only giving his testimony to try to help his friend for which he did not blame him. The Judge further stated that he would not permit any additional time for the defense to decide whether or not they wanted such a hearing or to prepare for the hearing prior to sentencing despite repeated requests by Dalton for more time for this purpose. Deputy District Attorney Gunson stated that if Judge Rittenband wanted to give Polanski 48 more days in custody that he should sentence him to 90 days in the county jail and give him credit for the 42 days which Polanski had served while undergoing the diagnostic study at Chino. Judge Rittenband stated that the appearance of a state prison sentence must be maintained for the press and for this reason he would not consider any county jail sentence."
Dalton alleged that he told the court "that he needed additional time to consult with his client regarding the evidentiary hearing. Judge Rittenband stated that the press expected a hearing on the following day and that they were going to have one. During these conversations, Judge Rittenband took a telephone call which he identified as being from Bill Farr[,] a reporter for the Los Angeles Times[,] and stated that he advised Farr that the hearing was going forward on the following day. The Judge further stated that at the hearing on the following day, February 1, 1978, that Dalton should vigorously argue for no further incarceration and that Gunson should then argue against probation and for a sentence of incarceration. Following the arguments of counsel, the judge would make his own statement and the state prison sentence would be imposed. Gunson pointed out that the question of the hearing should be resolved before the Judge imposed a sentence. Judge Rittenband stated that he would, nevertheless, make his remarks and impose the sentence and that if Dalton and his client Polanski still wanted a hearing that they could have one within ten days in the form of a motion for a new trial. (This, of course, meant that the hearing would follow the statement of the Judge and the imposition of the sentence that then would be known to the press and the public.) In addition, Judge Rittenband told defense counsel Dalton that if he conducted the hearing at a motion for a new trial there would be no assurance that Polanski would be released in 48 days upon the conditions the Judge had previously outlined, i.e., the voluntary agreement to deportation. Judge Rittenband further stated that if the defense decided not to hav[e] such a hearing they would be permitted to withdraw the motion fo[r] a new trial and Polanski would be committed to the state prison and the agreement about the 48 days would still be in effect."
According to Dalton, he and Gunson each resolved not to participate in the charade ordered by the trial court: "Following the meeting with the Judge, Deputy District Attorney Gunson, defense counsel Dalton and attorney Silver discussed what had occurred at the meeting with the Judge in chambers, and both Gunson and Dalton stated that they would not permit themselves to act out the roles assigned to them by the Judge in such a staged proceeding which was for the benefit of the press and with the result already pre-determined by the Judge."
Douglas Dalton, 2008: After Polanski submitted to the diagnostic study ordered by the trial court, "Judge Rittenband reneged on his promise that Mr. Polanski would serve no further time in custody, giving as his sole reason that he had been the subject of `criticism.' The Judge never identified the source or nature of the `criticism,' and no such `criticism' appeared in the probation report or diagnostic study, which both recommended probation for Mr. Polanski." Dalton alleged that "Judge Rittenband announced to counsel that he now intended to send Mr. Polanski to prison for the second time under the following conditions: (1) that he serve 48 additional days in prison; (2) that he would not be permitted to have a hearing on this additional sentence; (3) that he agree to waive his rights to a deportation hearing and agree to `voluntarily deport himself;' and (4) that no hearing would be permitted until after the imposition of the prison sentence and that even more serious consequences could be expected if a hearing were held. [¶] At no time did the assigned prosecutor, Deputy District Attorney Gunson, request any of the above conditions. Both Deputy District Attorney Gunson and I objected to Judge Rittenband's denial of Mr. Polanski's right to a hearing prior to sentencing. However, Judge Rittenband summarily rejected our arguments without any suggestion of legal authority to support the sentence and conditions that he intended to impose. The Judge also instructed Mr. Gunson and me to argue as though we were unaware of his intentions, and not to expose this information to the press."
Roger Gunson, 2009: "After Mr. Polanski's release from Chino, Judge Rittenband told Mr. Dalton and me that he intended to impose a further term of incarceration upon Mr. Polan[sk]i."
Judge Rittenband, 1978: "On or about January 27, the court received the diagnostic study and recommendation by the California Department of Corrections at Chino. Mr. Polanski, having returned to Los Angeles, was supposed to report on Monday, January 30. On January 30, Mr. Dalton and Mr. Gunson came to my chambers to discuss the report. I told them that I had carefully read it and that I felt it was superficial, replete with many inaccuracies and factually unsupported conclusions, and was conspicuous more for what it failed to report than what it did report. I believe I used the word `whitewash'. I stated that there was absolutely no mention in the report of any discussions which the counselors [sic] and psychiatrists at Chino had with Mr. Polanski relating to the serious and aggravated charges of rape by drugs and alcohol, sodomy, and oral copulation of the 13-year-old victim. I believe I pointed out to them that a statement in the report `that throughout the experience (with the victim) Mr. Polanski seems to have been unaware that he was involving himself in a criminal offense, an isolated instance of naivete, unusual in a mature sophisticated man', was one of the most fatuous statements in a diagnostic report that I have ever read. I told Mr. Dalton that I did not propose to follow the recommendations which were for straight probation without any additional time in custody. [¶] I then stated that an appropriate sentence would be for Mr. Polanski to serve out the remainder of the 90-day period for which he had been sent to Chino, provided Mr. Polanski were to be deported by the Immigration and Naturalization Bureau, by stipulation or otherwise, at the end of the 90 days. I expressly stated that I was aware that the court lacked authority to order Mr. Polanski deported directly or as a condition of probation. However, based on the facts before me, I believed that the safety and welfare of the citizens of California required that Mr. Polanski be kept out of circulation for more than 90 days. However, since Mr. Polanski is an alien who had pleaded guilty to an act of moral turpitude, I believe that the interests of the citizens of California could be adequately safeguarded by a shorter jail term if Mr. Polanski would thereafter absent himself from the country."
C. Allegations of Judicial Preoccupation with Public Response Concerning the Stay and Judicial Statements to the Press While the Case Was Pending
Douglas Dalton, 1978: Dalton alleged that as early as June 1977, the trial court was speaking to the press about the pending Polanski case. "In the June 6, 1977, issue of People magazine, the Judge was quoted as saying, `I've handled other celebrity cases and this just doesn't look like anything other than a routine rape case to me.' When asked if the defendant would be able to receive a fair trial in Los Angeles, Judge Rittenband replied: [¶] `People here are more sophisticated than anywhere else in the country and from what I've been able to gather, public opinion is divided on who is at fault. There are those who think Polanski a devil, and others who wonder why a mother would let her 13-year old daughter go around with a 43-year old film director anyway.'"
Dalton asserted that after a photograph of Polanski at Oktoberfest in Munich appeared in a newspaper in late September 1977, "Judge Rittenband expressed great consternation to Deputy District Attorney Gunson and defense counsel Dalton over the appearance of this article and the criticism it engendered of him, and he advised them both tha[t] he wanted defendant Polanski immediately to return to court." Dalton alleged that the trial court gave an interview to the Herald Examiner newspaper in which he stated that Polanski could be on his way to prison that weekend.*fn13 According to Dalton's representation of the contents of the newspaper article, the trial court stated in the interview, "I didn't know then (at the time of granting [the] stay) that the picture would be impossible to finish in 90 days," and "I do feel that I have very possibly been imposed upon."*fn14
Although the transcript of this hearing is not in the record, it appears not to be disputed that the trial court convened a hearing concerning whether Polanski's visit to Munich was in connection with a business matter and whether the stay should be dissolved. Dalton alleged in 1978 that prior to that hearing, the trial court "advised Gunson and Dalton that he had been criticized in the press and by others for his action in granting the stay in the first place, and that he would not under any circumstances grant any additional stays."
Douglas Dalton, 2008: After "a picture of Mr. Polanski appeared in the Santa Monica Evening Outlook Newspaper carrying a false caption that Mr. Polanski had `popped over to Munich for rest and relaxation,'" the trial court indicated an intent to dissolve the stay on the diagnostic study. "In an interview with Marilyn Beck of the Herald Examiner, Judge Rittenband stated that Mr. Polanski `could be on his way to prison by the weekend.'"
Judge Rittenband, 1978: "At no time was I swayed by public clamor or considerations of personal popularity or by apprehension of unjust criticism."
D. Allegations of Ex Parte Communications and Consideration of Matters Outside the Record
In the 1978 verified statement of disqualification for cause, Dalton alleged that "On several occasions in the presence of Gunson and Dalton, Judge Rittenband has referred to mail which he has received criticizing him for granting the stay to Polanski to work on the film; for permitting Polanski to go to Europe; and for ordering the diagnostic study. Judge Rittenband indicated he read these letters and was concerned about them." Dalton believed that a file of these letters was maintained in Judge Rittenband's department and stated that he would ask at the hearing that the file be marked as an exhibit to the statement of disqualification. According to Dalton, "Both Deputy District Attorney Gunson and defense counsel Dalton have stated to the Judge that it was improper to consider such ex parte communications."
Furthermore, Dalton alleged that "[p]rior to the defendant's commitment to Chino for the diagnostic study, Judge Rittenband advised counsel for the defense and for the prosecution that he had heard from a friend of his that there had been an article in a London newspaper approximately eight to ten years ago stating that Polanski had been involved in a similar incident with a minor female in London and had been forced to leave that country because of the occurrence. Gunson was told by Judge Rittenband to look into the matter. Thereafter he reported back to Judge Rittenband that he had found no factual record to support that such an event had occurred. Dalton stated his client denied that any such event had occurred[.] Judge Rittenband made a phone call to his friend in the presence of both Dalton and Gunson and said that the person still insiste[d] such an article had appeared in a London paper. Counsel for the defendant complained that it was improper for the Judge to consider such reports outside the record."
Dalton also alleged that on another occasion, the trial court "stated to Roger Gunson and Douglas Dalton that he believed that one Henri Sera had put Polanski in touch with the girl involved in the present case for the specific purpose of Polanski having a sexual contact with her. Gunson advised the Judge that his office had thoroughly investigated that possibility, and their investigation had concluded that there was nothing to substantiate that Henri Sera contacted the family or the girl so that Polanski could have sexual relations with her. Despite this assertion by the District Attorney Gunson, on or about January 30,[ ]1978, in a conference in chambers, Judge Rittenband stated to Roger Gunson and Douglas Dalton that he still believed that Sera had made arrangements for Polanski so that the defendant could have a sexual relationship with the girl."
I. Alleged Conduct After Flight, Prior to Statement of Disqualification
Dalton alleged that within days after Polanski's flight, Judge Rittenband held a press conference. Dalton asserted that the judge discussed the in-chambers meetings he had with counsel and disclosed that he "had told the attorneys that his intention at that time was to sentence the defendant to state prison and release him in 48 days if he agreed to voluntary deportation."
According to Dalton, at the news conference on February 6, 1978, Judge Rittenband stated, "I'm not unhappy he's out of the country. His conduct in this case is such that it would warrant his leaving the country." Dalton further alleged that the judge said, "I then discussed with them [counsel] what I might do, and among that was the-my thought that I would see that Mr. Polanski spend additional time in prison. The length of time, of course, would depend on whether or not there would be a deportation or if not deported involuntarily he would agree with the Director of Immigration to consent in writing to leaving the country in which case any balance of his stay in prison would be cut short."
II. Polanski's Subsequent Opportunity to Return Without Further Incarceration
Douglas Dalton, 2008: "[S]ometime in 1997, I requested that Mr. Gunson appear in Department 100, the presiding criminal department, so I could request assignment of the Polanski case to a new judge to discuss a potential resolution of the matter. The case was assigned to Superior Court Judge Larry Fidler. Mr. Gunson and I were given the court file which we took to Judge Fidler's courtroom. Nothing was said to us that any part of the court file, was missing. Judge Fidler recognized both of us and invited us into his chambers. No court reporter or stenographer was present at the ensuing meetings between Judge Fidler, Mr. Gunson, and me that followed over the next several weeks. I explained to Judge Fidler my purpose in requesting the meeting, and he stated that he had some recollection of the case from 1977 and the problems regarding Judge Rittenband. Judge Fidler agreed to take the case, even though he could easily have declined to accept handling what he knew to be a controversial matter in which he could expect criticism."
Dalton stated, "Judge Fidler made no representation of what he would have done had he handled the case originally, but only that he believed that a commitment made by a Judge of the Court should be fulfilled. Thus, after several meetings and a full review of the factual material, Judge Fidler stated that he would honor the agreement made by Judge Rittenband that the period of incarceration for Mr. Polanski while undergoing the diagnostic study would constitute the full and complete punishment. [¶] After considering the materials we submitted and after discussions with Mr. Gunson and me, Judge Fidler advised us that, if Mr. Polanski returned to Los Angeles, he would allow Mr. Polanski to be booked and immediately released on bail, require Mr. Polanski to meet with the probation department, order a probation report, conduct a hearing, and terminate probation without Mr. Polanski having to serve any additional time in custody."
Dalton continued, "Judge Fidler stated that due to the widespread public interest in the case and the lack of awareness regarding what had occurred in 1978, the sentencing proceedings should be televised in order that wide public coverage could be afforded for the benefit of the public understanding." Dalton consulted with Polanski and Polanski's agent. According to Dalton, the prospect of televising the proceedings was a deal-breaker, and Polanski elected not to return to the United States even with this assurance of no incarceration: "Given the prospect of another huge media event and the changed personal circumstances of Mr. Polanski, which included a stable marriage and two young children, it was Mr. Polanski's decision not to resurrect this 20- year old case at that time for another worldwide televised media event."
III. Evidence of Misconduct by a Member of the District Attorney's Office Revealed After Polanski's Flight
The film Roman Polanski: Wanted and Desired, released in 2008, contained interviews from a number of persons involved in the Polanski case, including Dalton and Gunson. It also featured excerpts from an interview with a former deputy district attorney named David Wells. Wells claimed he had initially handled the case for the district attorney's office but that the case was taken from him because he "was too close to the investigation" and had become a potential witness by engaging in conversations with Polanski.*fn15
In an interview with the filmmakers, Wells described himself as disappointed that the Polanski case was taken from him. "I wanted to try that case because all of us like some measure of publicity, and this is the way you get it in the D.A.'s office, trying major cases or publicity cases."
Although Wells was not the prosecutor on the Polanski matter, he claimed to have been "privy to almost everything that went on in that case[,] being assigned to that court as the calendar deputy. I was in the court every day. So Rittenband'd ask me questions about the thing because he counted on me, or whoever his favorite D.A. was at the time, to advise him on what the-what the law was, criminal law. He was very good at civil law, but criminally, he left that to his D.A.s to-to do." He described Judge Rittenband as saying to him, "`Look, I don't know anything about criminal law, don't want to know. Just don't get me reversed on appeal. You do whatever you want to do, just don't get me reversed.' That was his theory." Wells claimed to have been "as good [a friend with Judge Rittenband] as anybody can be," even discussing the judge's girlfriends with him Wells said that he used to "kid with him a lot. He took me to Hillcrest [Country Club] for lunch every once in a[ ]while. And in that respect I knew him and I could talk to him."
According to Wells, he was not involved with Polanski's plea, but he felt strongly about it: "I know I was very miffed the way it turned out because my feeling was the guy belonged in state prison." Wells was "pretty vocal about that," to the point where he "was told by the [district attorney's] office, `It's not your case anymore.'" Wells described himself as feeling that Polanski's offense was "reprehensible and I felt that he should have gone to state prison, and I would have insisted on a state prison sentence."
Wells described ex parte communications he had with Judge Rittenband while the matter was pending before him. "Rittenband had asked me about it. And I said, `Judge,' I said, `You know, you're gonna give this guy probation.' [¶] He said, `No, no. I wanna send him to jail.' [¶] I said, `You'll never do it because the first thing that's gonna happen when you sentence him, he's gonna appeal it. And it's gonna go all the way up to the State Supreme Court-he has the money-and he'll take it to the U.S. Supreme Court, if he thinks he can."
Wells claimed to have been the architect of the plan to use a diagnostic study referral as a non-appealable punishment. According to Wells, Judge Rittenband asked, "`Well what am I gonna do'-or `What should I do?'" Wells allegedly responded, "And I said, `You know what you should do is send him up for a 90-day observation because that's probably more time than you're gonna give him anyway because you're a softy on sentencing.'" Wells reported that the court asked, "`Well what will that do?' [¶] And I said, `It's not a final sentence. You can't appeal it. He ...