Roman Polanski arrested in Zürich

[DontSayBanana]

Question for the shysters: say the judge doesn't accept the plea.  It's still the prosecutor's discretion what charges to try him on, right?  There's no way the judge can force the prosecutor to charge him with any other crime, is there?

Also, is a plea agreement a legally binding contract?  Does a prosecutor that welches on a deal face any harm besides that to his reputation?

It has to be the indictment or an agreement between prosecution, defense, and the judge; if the defendant refuses a plea deal, the judge and prosecutor can't throw a softball.

If a judge offers a deal, then reneges on it, I would assume the conversations regarding the deal would become ex parte and would require censure, recusal, or a retrial, depending on when it happened and to what extent it influenced the proceedings.

[dps]

Question for the shysters: say the judge doesn't accept the plea.  It's still the prosecutor's discretion what charges to try him on, right?  There's no way the judge can force the prosecutor to charge him with any other crime, is there?

Also, is a plea agreement a legally binding contract?  Does a prosecutor that welches on a deal face any harm besides that to his reputation?

If Polaski gets extradited and then the prosecutor doesn't press charges, well, I wouldn't want to be the prosecutor that made that decision, 'cause then the shit would hit the fan.

[Admiral Yi]

Nonononono.  I'm talking about the original deal for just illegal sex with a minor.  Polanski pleads guilty.  Can the judge say no, I'm not taking that, we're going to try him for aggragavated rape, devil worshiping and directing over-rated movies.

[dps]

Question for the shysters: say the judge doesn't accept the plea.  It's still the prosecutor's discretion what charges to try him on, right?  There's no way the judge can force the prosecutor to charge him with any other crime, is there?

Also, is a plea agreement a legally binding contract?  Does a prosecutor that welches on a deal face any harm besides that to his reputation?

It has to be the indictment or an agreement between prosecution, defense, and the judge; if the defendant refuses a plea deal, the judge and prosecutor can't throw a softball.

He didn't ask about the defendent refusing a plea deal;  he asked about the judge refusing to accept the plea agreement.

Generally, judges can't force a prosecutor to press charges, but there might be some unusual provision in California criminal that I don't know about.

And even absent a deal, after a successful prosecution, the prosecutor could still make a sentencing recommendation that would ask for the lightest possible sentence, and the judge could go along with it--so they can throw a softball if they want.

If a judge offers a deal, then reneges on it, I would assume the conversations regarding the deal would become ex parte and would require censure, recusal, or a retrial, depending on when it happened and to what extent it influenced the proceedings.

Uh, judges don't offer plea agreements;  prosecutors do (though sometimes judges might encourage the prosecution and defense to try to come to a deal).

Depending on the circumstances, a prosecutor who reneges on a deal might face ethics charges, suppression of evidence in the case learned through discussions involving the deal, maybe even having the case dismissed--or there could be no consequences other than the confession itself being suppressed and having to go forward with an actual trial (heck, in some cases, it might even be possible to still get the confession entered into evidence).

[dps]

Nonononono.  I'm talking about the original deal for just illegal sex with a minor.  Polanski pleads guilty.  Can the judge say no, I'm not taking that, we're going to try him for aggragavated rape, devil worshiping and directing over-rated movies.

The judge can reject the deal, but the prosecutor can still withdraw the charges AFAIK--we'd need a lawyer who does California criminal law to say for sure.   

[DontSayBanana]

Yeah. Shit, I can't get anything out of my mouth right today. The judge can reject the deal that the prosecutor offers. Once the indictment's been read, though, the prosecution would need to file a motion to dismiss, which the judge would need to sign; if there's no good reason to dismiss it, the judge could simply refuse to sign the motion for dismissal and force it to keep going. The prosecution could self-destruct their case, but that could lead to a firing at best or legal malpractice and disbarment at worst.

[dps]

Yeah. Shit, I can't get anything out of my mouth right today. The judge can reject the deal that the prosecutor offers. Once the indictment's been read, though, the prosecution would need to file a motion to dismiss, which the judge would need to sign; if there's no good reason to dismiss it, the judge could simply refuse to sign the motion for dismissal and force it to keep going. The prosecution could self-destruct their case, but that could lead to a firing at best or legal malpractice and disbarment at worst.

You're being way over dramatic.  I figure most lawyers could do a poor job of arguing a case without making it look deliberate--most likely, there would be no formal action taken.  I'm not sure about California, but in most states, the only way to "fire" the prosecutor (I'm assuming that the actual prosecuting attorney is either the one tanking the case, or if he's not presenting the case himself he's at least has given his tacit approval to the underling in his office who is handling the case to throw it--obviously, if one of his subordinates deliberately lost a case without the boss OKing it, he might be fired) would be for the votes to vote him out in the next election--most states do have procedures in place to remove a prosecuting attorney from office for malfeasance, but I doubt allegations that he did a poor job on a case would be sufficient cause, or otherwise the entire L.A. county prosecutor's office would have been fired several times over the last decade or so.

[BuddhaRhubarb]

at 76 he most likely will. My money is that if he stays in Swiss prison for months on end waiting for extradition. He will die in his sleep, and America will not get the Justice it wants.

What Justice is it that you want?

Why does that matter? This is what I hate about this fucking place. Everyone has to have an unmovable position. I'm actually interested in people's opinions, and often change my own when people make good arguments (and this does happen on Languish) so my opinion is malleable on this issue, and others. I've always maintained though that he should finish his sentence (and do the year or whatever for evading jail) but...

what I am cynical about is: that actually happening, and am quite amused by all the morons who spend so much time talking about how he's not an exception to be made because of his art. Well d'uh. Being creative and successful with that creativity doesn't exclude you from being someone who deserves prison for having sex with a minor. I guess unless you are Michael Jackson., but then you have to watch out for Kervorkian types posing as your friend.

The guy is a criminal and possibly also an asshole. I wouldn't actually know for sure, but he is a success in the film industry. It's hard not to be an asshole in that case.

If he actually does time in America or anywhere other than his current Swiss jail ( I imagine him being guarded by those Swiss Pope guards for some reason.) I'd be amazed.

[Barrister]

Question for the shysters: say the judge doesn't accept the plea.  It's still the prosecutor's discretion what charges to try him on, right?  There's no way the judge can force the prosecutor to charge him with any other crime, is there?

Also, is a plea agreement a legally binding contract?  Does a prosecutor that welches on a deal face any harm besides that to his reputation?

First question: what do you mean by 'doesn't accept the plea'.  The way it works (in my experience) is:

1. Defense offers the guilty plea, i.e. I pelad guilty to count 4 on the indictment.
2. Prosecution reads in the facts, i.e. Mr. Polanski had sex with a 13 year old
3. Defense agrees to the facts, i.e. yup, I did
4. Judge accepts the guilty plea, i.e. I find you guilty Mr. Polanski
5. Lawyers make their submissions on sentence
6. Judge passes sentence

So the two stages involving the judge are on whether or not to accept the plea, and whether or not to accept the sentence.  In terms of accepting the plea it only has to do with whether or not the facts alleged actually make out the crime.  You sometimes get accuseds who try to minimize their involvement so much their actually aren't pleading guilty to a crime.   And here it is fully within the judge's power, and indeed it's his obligation, for the judge to reject the guilty plea.

And the second stage in terms of the sentence.  This is going to depend somewhat on the jurisdiction.  Up here even with a joint submission on sentence the judge can still reject it if it is "demonstrably unfit".

But no - the judge can not force the prosecution to add extra crimes, or reject a deal because he doesn't think it's to enough charges or counts.  The prosecution always has the discretion of what charges to present.

Second question,

A plea agreement is binding, but there are options to back out.  First if the accused does something to violate the deal, or commits a new crime.  Second, I believe either side can resile from the agreement as long as no one has taken any steps to their detriment.  Our office has had to do that once or twice - we strike a deal, but before any guilty pleas are entered we realize the deal is way off.

[BuddhaRhubarb]

jeez Yi, never seen an episode of law & order? Beeb's reply is like a plot synopsis. :p

[Admiral Yi]

First question: what do you mean by 'doesn't accept the plea'.

I had gotten the impression from some of the posts in this thread that it was within the judge's discretion to say no Mr. Prosecutor, I'm not happy with that agreement you struck with Mr. Polanski on illegal sex with a minor and think we should procede to throw the book at him.

If not, and based on your post it appears the judge can't do that, then it casts Polanski's flight in an even worse light.  Even if the judge in the case was a dirty lying Jew director hating sonofabitch he couldn't up the charge from illegal sex with a minor.

[Barrister]

First question: what do you mean by 'doesn't accept the plea'.

I had gotten the impression from some of the posts in this thread that it was within the judge's discretion to say no Mr. Prosecutor, I'm not happy with that agreement you struck with Mr. Polanski on illegal sex with a minor and think we should procede to throw the book at him.

If not, and based on your post it appears the judge can't do that, then it casts Polanski's flight in an even worse light.  Even if the judge in the case was a dirty lying Jew director hating sonofabitch he couldn't up the charge from illegal sex with a minor.

The judge can throw out the sentence suggested, but the judge can't say you aren't proceeding on enough charges.  If the prosecution wants to reduce a murder charge to simple assault the judge can't say anything, but he can throw out the suggested $25 fine and different sentence.

[Faeelin]

A fascinating look at the discussion.

http://blog.newsweek.com/blogs/thehumancondition/archive/2009/09/29/roman-polanski-raped-a-child-a-primer.aspx

[The Minsky Moment]

BB's steps accurately describes the US federal system and NY State (and presumably most if not all the other state).

The plea and the sentencing recommendations are analytically distinct although sometimes the bargain will include a recommendation.  The benefit from the plea is that the defendant may be offered a lower charge to plea to than the one the government might otherwise be able to prove.  In addition, the prosecutor may formally or informally offer to be lenient in the sentencing recommendation.

The judge can either accept or reject the plea - if the plea is accepted, the judge then must sentence within the allowable statutory range for the crime pled to (i.e. they cant exceed the max).  But the judge is under no compulsion to accept the prosecutor's recommendation, even if that recommendation was part of the overall understanding in connection with the plea deal.

The issue as I understand it with Polanski was NOT that the judge was going to reject the plea, but that he was considering ignoring the joint sentencing recommendation of both sides and imposing more jail time under the plea.

[Martinus]

The issue as I understand it with Polanski was NOT that the judge was going to reject the plea, but that he was considering ignoring the joint sentencing recommendation of both sides and imposing more jail time under the plea.

Yeah that is my understanding as well. And that he was communicating this to the prosecutors and even members of the press, asking them what should be the sentence.