LOS ANGELES – an issue the Swiss say played a key role in the decision to refuse his extradition.
The Justice Department insisted Thursday that it notified Los Angeles prosecutors about its decision to reject the Swiss request. But Los Angeles officials said they never heard from Washington.
Swiss officials said the denial of their request to see the transcripts led them to free the director against U.S. wishes.
The dispute was not likely to change Polanski's status since prosecutors had previously argued against unsealing the secret testimony. But Los Angeles authorities maintained they were not asked. The miscommunication was another in a long series of prosecutorial missteps that have dogged the case from its inception in 1977.
Loyola University law professor Stan Goldman said the current flap was mostly about attorneys "pointing fingers at each other."
"It's an embarrassment for the district attorney's office," he said. "It was they who were seeking to get Polanski back, and they have failed."
Sandi Gibbons, spokeswoman for the Los Angeles District Attorney Steve Cooley, declined to comment on what prosecutors would have done if they had known of the request.
"We don't comment on 'what if' questions," she said. "That's speculation."
Gibbons' reiterated the office's position, saying, "We were not specifically notified of the request."
The Justice Department said that it kept the district attorney's office fully informed of all requests from Swiss authorities regarding the effort to have Polanski extradited to the United States.
The department said Cooley's office provided input and "approved all responses from the U.S. government to Swiss authorities on this matter," including one rejecting a request to turn over sealed testimony that proved pivotal in Switzerland's decision to free Polanski.
"The Department of Justice and the Los Angeles District Attorney's Office worked in close coordination on this important extradition request," Justice Department spokeswoman Laura Sweeney said in an e-mail.
Polanski's legal team had moved to unseal the documents, which contained testimony by the film director's original prosecutor, Roger Gunson, who had testified in secret on Feb. 26, March 9 and March 10 in what is called a "conditional examination."
The testimony was to be used only if Gunson became ill or otherwise unavailable to testify in person at future proceedings. It was sealed.
The Justice Department had told the Swiss that the transcripts could not be provided, according to a letter from Swiss officials to the U.S. Embassy in Bern, Switzerland, explaining what preceded the Swiss decision to deny extradition. The letter was dated Monday and obtained by The Associated Press Wednesday night.
The Swiss officials said that the denial of access to the information was the key factor in the refusal to extradite Polanski.
The Swiss had said from the beginning that their extradition laws allowed Polanski to be sent to the United States only if he was going to be required to serve at least six months in prison. They sought the testimony of Gunson to clarify the matter.
The letter added, "Under these circumstances it cannot be excluded with certainty that Roman Polanski, who was imprisoned in the Chino State Prison for 42 days, has not already served the sentence imposed on him."
It was the first indication that the Swiss were potentially accepting arguments raised by Polanski's lawyers, who claimed he was a victim of misconduct by now-deceased Superior Court Judge Laurence Rittenband.
The letter mentions Rittenband by name and said authorities wanted to know whether Rittenband had promised Polanski that his time undergoing a diagnostic study in prison would be his entire sentence. He had pleaded guilty to unlawful sexual intercourse with a 13-year-old girl.
The request was transmitted to the Justice Department, they said, on May 5, 2010.
Adding to the confusion, Swiss Justice Ministry spokesman Folco Galli had said on April 30 that his department was not interested in the testimony. "Such documents are irrelevant for the extradition proceedings," he had told the AP.
In a written ruling issued May 10, Superior Court Judge Peter Espinoza said he knew of no request.
"The Swiss Justice Ministry has recently opined the transcripts 'are irrelevant for the extradition proceedings,'" he said. "The Swiss have not requested and the law does not permit that the transcripts be unsealed."
But that ruling came five days after the Swiss said they had submitted their request to U.S. authorities. The Swiss ministry declined to explain the change of position.
"What's clear is that the Justice Ministry asked for this transcript, which shows that it's considered to be relevant," said Guido Balmer, another ministry spokesman.
On May 6, 2010, the day after the new request, the Los Angeles District Attorney's office filed papers opposing any unsealing.
Polanski's defense lawyer, Douglas Dalton, said the revelations support "the need for a formal inquiry into this issue."
Associated Press Writer Pete Yost in Washington contributed to this report.