POLANKSI: UNDERLYING FACTS OF THE CASE NOT AN ISSUE, GOVERNOR SCHWARZENEGGER CAN END THIS BY GRANTING PARDON

Roman Polanski (AP)

ADMONISHMENTS

On August 8, 1977, Roman Polanski pleaded guilty to one of six counts: unlawful sexual contact with a minor. Upon a defendant's plea of guilty, a judge is required to admonish the defendant of a multitude of rights and laws. The defendant is must, the record, verbally state he understands the admonishments.

On the day of Polanski's guilty plea, the prosecutor said he convinced the District Attorney to accept the plea agreement. The judge did NOT say he would agree to such an agreement between the parties.

The Honorable Laurence J. Rittenband admonished Polanski & Polanski stated he understood each admonishment such as:

* He understood he was giving up his right to confront witnesses (p. 9)
* He stated he was guilty of the charge of unlawful sexual intercourse with a female person under the age of 18. (p. 10)
* He understood he was pleading guilty to a felony (p. 11)
* He understood the maximum sentence was up to 20 years in prison (p. 11)
* "Mr. Polanski, who  do you believe will decide your sentence will be in this matter"; Polanski, "The judge."(p. 11)
* "Do you understand at this time the Court has not made any decision as to what sentence you will receive? Do you understand the court has not made any decision?" Polanski, "Yes." (p. 12)
* Since you are not a citizen of the United States, a possible sentence of your plea of guilty TODAY may be that you be deported and excluded from this county?" (12)

* Interestingly, the judge did not admonish the defendant of his right to withdraw his plea of guilty. Generally, the Defendant has 30 days from the date of his plea to do so. Polanski did not withdraw his plea of guilty.

Instead, after he was released from his 42-day stint in jail for a mental evaluation, he fled the country in fear of the judge's imposition of an additional sentence. Understand that he was not sentenced for the crime. He was ordered to complete an evaluation. The record does not reflect he was being sentenced but instead complied with a pre-sentence mental evaluation. I do not understand how people are confusing a pre-sentence investigation of sorts with a sentence!

As a defense attorney, it sounds like the prosecutor and the defense attorney spoke to the judge in his chambers and the judge said he wouldn't sentence him to additional time if the evaluation came back clean. Polanski's attorney probably conveyed this to his client, even though no agreement was ever stated on the record. This is a classic example how a judge can "forget"; discussions in chambers and can use the "It's not on the record" excuse to renege an agreement. I've been in conferences just like this where, at a later date, the judge doesn't remember the previous conversation and agreement. Interesting that the court file in Polanski's case is missing.

POLANSKI'S STIPULATION TO THE FACTS & FAILURE TO FILE MOTIONS

I respectfully disagree with certain writers, such as Gerald Posner, who go into great detail about the underlying facts of the case, witness availability and any other matters as they relate to the crime of 1977.Polanksi pleaded guilty to the charges, waived his right to confront witnesses and stipulated to the facts as they were read into the record.

Regardless of the possibility that the judge was going to renege his off-the-record agreement on the final sentence, Polanski's attorney did NOT file a motion to withdraw his guilty plea. Nor did they file a Writ of Habeus Corpus. As a result, Polanski waived his right to withdraw his plea of guilty. Since he filed no additional motions, the underlying facts of the case are not in dispute.

BEST OPTION FOR POLANSKI - SCHWARZENEGGER PARDON

I suggest Polanski does not fight extradition. Instead, I think the best thing for Polanski to do is come back to the United States and seek a Governor's pardon from California Governor Schwarzenegger.

The governor of the state where a state crime occurred, has the absolute power to pardon a person. Reasons for a pardon can be based on innocence or rehabilitation. Polanski clearly is not innocent of the crime.

Schwarzenegger can grant Polanski a pardon based on his rehabilitation and his extraordinary contribution to society since his 1977 crime.

 www.xpunged.com and www.tamaraholder.com

ROMAN POLANSKI CASE SIMILAR TO ONE OF MY CASES - SHOWS ABSOLUTE POWER OF JUDGE AND PROSECUTORS

Roman Polanski (AP)This weekend, the Swiss arrested Roman Polanski, for possible extradition to the United States. In 1977, Polanski was accused of raping a 13-year old at Jack Nicholson's house after getting her drunk and drugging her with a Quaalude. 

Polanski Case

Polanski's defense attorney and the prosecutor worked out a plea agreement whereby he would plead guilty of one of six counts, unlawful sexual intercourse, and he would spend 42 days in prison.  After he was released, Polanski learned the judge would not agree with the agreed-plea, sentence him to additional time to prison and require him deported. As a result, Polanski fled to France where he has lived ever since. Article here.

My case

I currently represent a young man who was accused of sexually assaulting a few girls at an Illinois high school where he was their assistant track coach.

His defense attorney and the state's attorney - THE state's attorney, not the assistants - agreed to reduce the felony charges to misdemeanor battery. Just days before the plea agreement was to be presented to the judge, the state's attorney handed the case over to one of her assistants. Then, on the day the plea was to take place in court, the assistant state's attorney pulled the entire deal.

Thus, my client was forced to take the case to trial, unless he wanted to plead guilty to felony charges, which would guarantee his deportation. While the jury was deliberating, my client fled the United States because he suspected he would be found guilty. Interestingly, he was found not guilty on felony charges of sexual assault against two of the three girls. See Article here.

The Power of the Judge and State's Attorney Often Leaves Defendant Powerless

In both my case and the Polanski case, two people who were accused of a crime and who had reached an agreement with the prosecutors, were forced out of our country.

A very typical response is, "Good thing he fled! He needs to leave our country and never come back!"

But that's not the issue.

The issue is that we have a system where prosecutors and defense attorneys are allowed to work out deals in cases where a defendant is probably guily of some sort of illegal conduct but the state's case is probably not airtight. Think about it: if the guy is totally innocent, the defense attorney will take it to trial. Same for the prosecution: if the guy is clearly guilty and he was found with "blood on his hands" then the prosecution will not offer any plea deals.

Granted, a deal is revocable at any time and a judge always has the discretion whether or not to go along with a plea agreement. I completely respect a judge's discretion.

But, it's unfair when a person, who is a legal resident of our country, is offered a deal and then it is revoked, leaving him with no other choice but to flee.

It did not make sense for the men to stay. If he stayed and did his time, he would have been deported after he fulfilled his prison sentence. So why do the time and waste all those years in prison when you cannot stay in the country after you've done your time? What would you do? You would leave before you were placed in prison and go to your native country if you are safe from extradition the United States.

Unfortunately, the deportation laws give no discretion for people who actually contribute to society. Polanski has contributed immensely to America. My client had received his college degree and had been accepted to a fine university for graduate school.

Both men were accused of committing crimes that were clearly flawed; hence, the reason for the plea agreements. Had the plea agreements been accepted in both cases, both men would still be living in America with their friends and family and would be able to contribute to our society.

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MANY WANTED C-BREEZY TO GO TO STATE-PREEZY - INSTEAD, SENTENCE PROPERLY FOCUSES ON REHABILITATION

Rihanna & Chris Brown in happier dayChris Brown is now a convicted felon for life. Today, he pleaded guilty to felony assault, stemming from an alleged altercation with then-girlfriend, Rihanna, on February 8, 2009. Article here.

Brown will serve five years probation and 180 days in jail or the equivalent -- about 1,400 hours -- in "labor-oriented service," said Sandi Gibbons, spokeswoman for the Los Angeles County District Attorney's office. He must also undergo a year-long domestic-violence counseling class, she said. He must check in with his probation officer every three months.

OVERCROWDING IN CALIFORNIA PRISONS

California is home to the largest prison population in the country, housing approximately 150,000 inmates. In fact, just several months ago, in February, a 3-judge panel ordered California to cut its prison population by 55,000 inmates in the next 3 years. NY Times article here.

Over-crowding is so severe that the state has failed to provide medical and mental health care to its inmates, killing at least one inmate every month. The panel found that this type of treatment is considered cruel and unusual punishment, which is prohibited by the Constitution.

California is not alone. Our country is the most incarcerating country in the world: 1 in 100 people in the U.S. are in prison. This number is astonishing and shameful. We cannot continue to put every person who commits a crime behind bars.

FOCUS MUST BE ON REHABILITATION - NOT INCARCERATION

What's the point of throwing Chris Brown into the prison system? I am not suggesting that he is better than any other inmate; however, the prison system is lacking rehabilitation services. Even if Chris Brown were sentenced to the maximum 4 years in prison, he would eventually get out prison. Then what? Do you really think that slapping the orange jumper on him for awhile will get him to change his violent behavior upon release? Of course not!

Instead of prison, the judge sentenced the young, 20-year old Chris Brown to a hefty amount of probation. Probation ain't no joke. He will have to check in with an officer every 3 months; he'll probably have to submit to random urine drops; and if he gets in any trouble whatsoever, his probation could be revoked at any time. Chris Brown will be under the microscope for 5 years.

Besides the monitoring, Brown is required to attend a year of domestic violence therapy. Good! This is not a service he would have received in jail. He clearly has violent tendencies. I would much rather he receive adequate counseling for 1 year while on probation than no counseling while in prison. Rehabilitation is the goal. I'm sure no other woman wants to get her face bashed in by an angry C-Breezy.

If some guy beat me up, I would want him to go to prison...or, I would want my dad to have a "talk" with him for a little bit. (Just kidding.) But, if you think about it, prison in America today is not the best form of punishment. That person will eventually be placed back into society, whether it's in one year or in 30 years. You don't want that person to come out of custody even more angry or simply unable to deal with the behavior that put him behind bars in the first place.

In my opinion, this is the best situation for Chris Brown. Five years probation is a very long time to be monitored by the court. A year of therapy is quite substantial. He's a convicted felon for life. Chris Brown has a long road to rehabilitation and, hopefully, today was his first step down that road.

P.S: Michael Lindsey, a domestic violence expert, saved my life. His daughter was killed by her boyfriend after he was released from prison. Michael was left to raise his grandson. Maybe if he received rehabilitation in prison, the outcome would have been different.

The day I went to Michael for help, at the age of 14, was the day I turned my life around. No, I wasn't a victim of domestic violence, nor was I a violent person. Instead, he came into my life at a time when I needed help, guidance and support. Thank you, Michael, for truly saving my life.

www.tamaraholder.com and www.xpunged.com

UPDATE: "STATUS" DATE FOR NFL PLAYER PLAXICO BURRESS ON GUN CHARGE

NY Giants receiver Plaxico Burress

Plaxico has a "status" date on his gun charge today. ESPN reports that the prosecutors are demanding jail time for Plaxico. Article here.

I previously wrote about Plaxico, and other athletes, and their complete disregard to follow the laws and common rules of decency that rest of society must follow. Blog here. Please revisit this blog, as I suspect a plea agreement is in the making. Remember, the guy shot himself in the leg.  I don't see much of a defense there!

www.tamaraholder.com & www.xpunged.com

CASEY ANTHONY CASE: NO LONGER THE CASE OF TWO REASONABLE DOUBTS

* Disclaimer: As of 9:30 CST, this blog is posted purely on speculation that the remains found are those of Caylee Anthony.  This has not been confirmed by authorities working on the case.

Investigators obtained a search warrant overnight of the Anthony home in an effort to obtain more evidence against Casey Anthony, if the remains found are in fact of her daughter, Caylee.

Caylee went missing in June or July and since then, 2 other search warrants were executed.  So what could possibly be in the house that investigators didn't previously seize?

New Evidence

1) Duct Tape & Bag: The skull was found with duct tape wrapped around it.  Investigators will search the house for duct tape.  Possibly, the same roll was used and then put back in its place.  Forensics analysts can microscopically compare the tape on the skull to tape found in the home and determine if they are the same. The bag found at the scene can also be compared to trash bags found in the Anthony home.

2) Clothing: If clothing was found, investigators will obtain other items of clothing in the home to compare size.   DNA analysis will be conducted on the clothes in the home to those, if any, found at the scene. Evidence is carried out from the Anthonys' home early this morning. (Red Huber, Orlando Sentinel)

Crime Scene was Needed for Prosecutor's Case: The TWO REASONABLE DOUBTS

Prior to the discovery of Caylee's remains, Casey's defense was resting on two reasonable doubts: 1)  Reasonable doubt that Caylee is dead since there is no body, and 2) Reasonable doubt that Casey, Caylee's mother, committed the crime. 

Much of my previous defense of Casey was premised on the fact that there was no crime scene.  Without a body, the jury's mind can easily wander into "What if She's Alive?" land.  Now that Caylee has been found and a crime scene has been identified, there is NO reasonable doubt whatsoever that Caylee is alive, was possibly kidnapped, sold, etc.  

Prior to yesterday's finding of the remains, Casey's attorney, Jose Baez, was hanging his hat on the belief that Caylee was still alive. He appeared on national TV stating this theory and filed motions for the police to disclose alleged sightings of Caylee. Casey's parents even appeared on Larry King earlier this week and spoke of their belief that she was still alive.  These "moves" were smart on Baez's part; he was talking to the jury pool early on, planting a seed that Caylee was still alive. (Unlike another defense attorney, who shall remain nameless, who has gone on a national media campaign, telling the world that the investigation of his client, a suspected wife-killer, is purely for the prosecutor's political agenda. This attorney has become just as despised as his client!)

But, that theory is out the window for good.  There is no reasonable doubt that Caylee is alive.  

The only reasonable doubt left is whether was Casey committed the murder of her then 2-year old daughter, Caylee.   Maybe Jose won't have to reach that point of determination; maybe he will now advise Casey to confess and take a plea if she ever wants to see the light of day again.  

12-9-08: Jose on The Today Show, stating his belief that Caylee is still alive.

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CASEY ANTHONY: IF THE REMAINS ARE OF CAYLEE, WHAT NOW FOR CASEY?!?

CAYLEE’S REMAINS ALLEGEDLY FOUND – IF SO, WHAT DOES THIS MEAN FOR MOTHER, CASEY ANTHONY?

December 11, 2008: A utility worker was working near the home of Caylee Anthony when he discovered a bag.  Upon picking up the bag, bones fell out, including a small skull.  It is speculated that the bones belong to 3-year old Caylee Anthony.  Her mother, Casey, is in jail awaiting trial for her murder. Scene where bones found - allegedly those of Caylee Anthony

I have never entirely defended Casey Anthony; however, from a defense perspective, I have believed there are several problems with the State’s case.  1) There was no body.  Up until now (and until the bones are confirmed to be Caylee's), Caylee was only missing. Without a body, there is always speculation that she may still be alive; hence, the alleged sightings.  2) Casey is a compulsive liar.  Just  because she has lied about her daughter, that doesn’t make her a killer.  Her whole life has been a lie: she’s lied about Caylee’s father’s identity, her employment, etc.  As a defense attorney, I would focus on her pattern of lies BEFORE Caylee went missing, in an effort to make the jury question “what more” does the prosecution have on Casey?  3) Casey never gave a confession.  A confession is usually always a clincher (unless suppressed prior to trial) and since she never confessed, the State lacked the home run. 

LOCATION OF BODY POINTS TO CASEY AS MURDERER

A killer often disposes of a body in a familiar area.  Since the body was found within ½ mile of Casey’s home, the killer knew the area well enough to feel comfortable disposing of it here.  It’s highly unlikely that if the killer were not Casey, the body would have been disposed-of so close to the residence. It just does not make sense that the perpetrator would be anyone other than someone familiar with the area. (There's always the possibility that a neighbor was a sex-offender, kidnapped Caylee and disposed of her in the area.  But then why wouldn't Casey have reported her missing if that were the case?)

HOW CASEY’S DEFENSE PROCEEDS

If the remains are of Caylee, then Jose Baez must come up with a new strategy.  His focus on wanting records of Caylee sightings and his desire to create reasonable doubt that Caylee is dead based on these sightings is now totally out the window. 

If I were Casey's defense attorney, I would advise my client to take a plea, unless she is going to use the insanity defense.  If she does not take a plea, she will probably be sentenced to life in prison.  At least with a plea, she can possibly get out of prison one of these days.  Also, if Casey does not take a plea, the State may re-file a motion to seek the death penalty.  A good attorney not only can try a case well but can also look at a case and advise his client to take a plea over getting launched. A good attorney knows how to pick battles and knows what battles he can win and those he cannot win.

www.xpunged.com and www.tamaraholder.com