Things Learned Doing Ride Alongs

As a prosecutor, every so often I go along with a law enforcement officer on a "ride along." It's an interesting experience and I suggest it to anyone who has the opportunity because it gives you a look at what things are really like before they become sanitized in the courtroom. There are a few things that I've noticed on these rides:

1. People do not react well when a police car is coming down the road at high speed with lights flashing and sirens blaring. Some people just don't seem to feel they need to get out of the way. BTW, even if there are two lanes, and the passing lane is empty, pull over. A car traveling at a high rate of speed has a good chance of coming partially into your lane on that curve ahead. Worse is when people turn on their left turn signals and then pull off to the right. I've seen this twice, both times on two lane highways with little room for the officer react.

2. People drive poorly - even without alcohol. Cell phones, arguing with others in the car, eating that burger, &cetera all seem to be more important to people than staying in their lane and not swerving over into oncoming traffic.

3. Every time I've done a ride along there's been at least one mental or physical health call. Most of the time the mental health call involves keeping a scene as calm as possible until the ambulance arrives and is able to take the distressed person to the hospital. The physical health calls are usually things like someone slumped over the wheel of car by the side of the road. Not much can be done but to get there and get the lady to the hospital. Interestingly, civilians at the scene of mental health problems usually seem calmer than people at the scene of physical health problems.

4. No matter how many officers respond to a house/trailer/apartment complex they are almost always outnumbered. I'm not sure how this happens, but it seems that no matter how many officers arrive at the scene more neighbors, kin, or just plain troublemakers will simply appear. Much of the time the officers who respond to these kind of situations are peacemakers, calming everyone down and separating the two sides rather than arresting anyone.

5. The law requiring drivers passing police cars at a stop to pull over to the passing lane or (if unable) to slow down is an extremely good idea. It's amazing that more officers aren't hit as they walk back and forth between their cars and the cars they've pulled over. The side of the highway can be extremely narrow (at least here in mountain country).

6. Eating at a restaurant with a group of officers usually has this part in the conversation (regarding the restaurant's staff): "We've arrested him and him and her and, hmmm, when did Peter get back out of jail?"

7. The officers want to know how to do things right. Almost every time I've done a ride along there's been a discussion of 4th and 5th Amendment requirements brought up by the officer because he's heard that there's been some change (things like Gant and Montejo) or he's seen a defense attorney argue something in court or because he's had some tricky situation come up which he's unsure of.

8. People will admit the most amazing things to officers: "How do you know MaryBeth stole your transistor radio?" "Well, she and I were in my apartment last night doing some shrooms and the radio was there. When I woke up in the morning MaryBeth was gone and so was the radio."

"Why should local diggers break their backs and risk arrest when they could stay home and make a cottage industry out of copying ...?"

The LAT's Mike Boehm has more on UCLA's Charles Stanish, author of the article I mentioned here.

Warhol Decision

The NYT's Randy Kennedy reports that "a federal district judge in Manhattan said Tuesday that a class-action lawsuit charging fraud and other misconduct could proceed against the Andy Warhol Foundation and the board that authenticates Warhol's work. The suit was filed by a filmmaker, Joe Simon-Whelan, who bought a Warhol painting … in 1989 only to see it later declared inauthentic on two occasions by the board …. The board and foundation have denied the accusations and sought to have the suit dismissed. Judge Laura Taylor Swain ruled that Mr. Simon-Whelan had asserted his allegations 'plausibly' enough for the case to continue to the discovery phase on many of its claims."

Much more from The Art Newspaper.

"'People have to be practical. They have to be pragmatic. They have to stop being righteous"

Move over, Hugh Davies. I think I have a new favorite museum director. Judith Dobrzynski calls attention to an interview Maxwell Anderson did with the Guggenheim's new director, Richard Armstrong:

"[A]round the 40th minute, Max asks about deaccessioning. Armstrong replies:

'The collection needs to be shaped. It's slightly misshapen....One wonders, does one need to own 114 Kandinskys, for example.'

"Max, surprised, offers 'we're interested in Kandinskys,' and Armstrong plows ahead: 'I just think there's a way of deploying assets slightly differently.'

"Max tries again, bringing up a conference call on deaccessioning policy among members of the Association of Art Museum Directors. But Armstrong counters:

'People have to be practical. They have to be pragmatic. They have to stop being righteous. They have to stop being proud of the fact that the museum died, but the collection is intact. That's where we're headed, I'm afraid, in a number of provincial places.

'A lot of museums are not going to make it. There needs to be an infusion of pragmatism.'

"Trying to get Amstrong to draw a line somewhere, Max asks whether he's a no-holds-barred guy on deaccessioning. Armstrong says:

'I think I am, yeah.'

"To which, Max says, 'you'll be the cowboy on this.'"

Montejo: The Defendant Must Assert His Rights Directly to the Officers' Face

Important Cases Involved: Montejo v. Louisiana, Michigan v. Jackson (overruled), Miranda v. Arizona, Edwards v. Arizona

Tuesday the Supreme Court went out of its way to squash the 1986 decision Jackson. In Jackson the Supreme Court had, under the 6th Amendment, expanded the protections against constitutional violations by stating that as soon as an indigent defendant asked for an attorney to be appointed he had asserted his right to have an attorney present at all important parts of a trial, including any subsequent police interviews. Louisiana played games with the Jackson decision. Its supreme court ruled that because a defendant didn't actually request counsel when he went to court and had an attorney appointed, he didn't get the protection of Jackson.

Reviewing this, the US Supreme Court decided that because in some States indigents have attorneys appointed upon a showing of lack of funds rather than a request Jackson had to go. It backed this by stating that the 5th Amendment provided redundant protections, via Miranda and Edwards which are not being removed by the revocation of Jackson. It then sent the case back down to have a 5th Amendment analysis done.

Before I discussed this, I wanted to take an opportunity to review Edwards because the Court seemed to both say that it provided redundant protections to Jackson and less protections (the reason the case was returned to the State courts for another analysis). In Edwards a defendant claimed his right to have an attorney present during questioning. The questioning stopped, but the next day the defendant was read Miranda again, waived his attorney and made incriminating statements. The court held

[W]e now hold that, when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges, or conversations with the police.

Practical Application

As a practical matter, Motejo and Ventris render 6th Amendment protections during an interrogation non-existent. Combined with the basic reality that law enforcement plays by the rules we give them, this fundamentally changes the reality of police interrogation.

Law enforcement officers can interview the defendant at any point up to the time of his actual trial and are only required to stop if he unambiguously asserts his 5th Amendment rights. LEO's are not required to inform the defendant's attorney of this or have her present during the interrogation. Furthermore, non-coercive subterfuge tactics, such as placing an informant in the cell with the defendant, even after an assertion that the defendant wants his attorney present during interviews, would only be barred under the 6th Amendment from use in the prosecutor's case in chief, but could still be used in rebuttal.

"A case study ... in how not to make and implement hard decisions in the face of an economic crunch"

Felix Salmon on "The Sorry Story of the Rose Art Museum":

"Where are we now? Well, the Rose is essentially dead — its donors have rescinded their pledges, artists are asking for artwork back, the director has been fired, and it has no chance of being able to raise a penny in new money any longer. That’s the downside, for Brandeis, whose own reputation has been trashed in the process. And the upside? Pretty much nonexistent: no art has been sold, no art will be sold for the next couple of years at least, and confusion reigns on campus and beyond."

Update on the Brodsky Bill

The NYCBA Art Law Committee recently sent a letter to Assemblyman Brodsky, regarding his proposed museum deaccessioning bill. You can read the letter here (courtesy of Sergio Muñoz Sarmiento).

I'm opposed to the bill in its entirety -- I'm one of those who, as their letter puts it, "maintain that uniform restrictions on the use of deaccessioning proceeds may not neccessarily serve the best interest of the institutions or the public" -- like Christopher Knight, I think we can "trust [our] tax-subsidized museum professionals to use their art collections wisely and for [our] benefit" -- but, if we have to have the legislation, the Committee makes some good suggestions for making it a little less bad.

Speaking of the Art Law Committe, they're sponsoring a public program tomorrow night on The Art of War: The Protection of Cultural Property in War and Peace.

Raw Deals

A reader sends a link to an odd story from the Central Pennsylvania Patriot-News, under the headline Raw deal: Pennsylvania artwork now under U.S. Postal Service copyright. Apparently the U.S. Postal Service is preventing certain publicly-funded New Deal artworks from being photographed, but if so, my guess is that they are doing so not because the work is "now under Postal Service copyright," but, rather, because it's on their property, and they aren't obligated to allow people onto their property to take pictures. That doesn't make it right, as a matter of policy, but there is a difference.

"Copyright in the US is automatic on fixation of a creative work .... Registration is not necessary for basic copyright protection"

Rebecca Tushnet notes a Washington Post story that "confus[es] 'registration' with 'copyright' almost every single time the word 'copyright' appears. ... It is misleading, and potentially quite damaging, to tell authors that 'a claim filed with the government offers legal protection -- it is the only way to stop someone else from copying a work.'"

Deaccessioning as Settlement Tool (UPDATED)

Judith Dobrzynski reports that the National Gallery of Art "has just agreed to transfer the ownership of a painting on view there, Chaim Soutine's Piece of Beef, to the family of a prior owner" in settlement of a lawsuit. The suit "was brought by the estate of Lorette Jolles Shefner of Montreal against the National Gallery and Maurice Tuchman and Esti Dunow, the authors of the Soutine catalogue raisonné, about a year ago. It accused the men of 'tricking her into selling the 1923 painting for $1 million -- below market value -- and then reselling it for twice the amount to the museum in 2004.'"

An NGA spokeswoman tells Dobrzynski in an email that, in return, the museum will receive payment of "more ...than it paid for [the work]." I'm not sure what that means, exactly. I guess one possibility is that everyone agreed to go back to the status quo ante: Tuchman and Dunow return the $2 million (plus a little) to the museum, the estate gives them back their $1 million, and ownership of the painting goes back to the estate (though it has agreed to leave it on view at the NGA "for the near future").

UPDATE: A loyal reader points out, based on first-hand knowledge, that, contrary to the Arts Journal report linked to above, Esti Dunow is a she.

Symbolism

Friend of the Barnes Evelyn Yaari responds via email to my post last week wondering what difference it would make if the Delaware River Port Authority rescinded its $500,000 in funding for the move to Philadelphia:

"This particular grant is distinctive because it is public money and because the DRPA is a regional governmental body. There is symbolic value in it if, by some miracle, the votes come together to rescind it, or even get close. Besides, we saw an opportunity to raise some of the issues that are far more important than the half million dollars, including:

• Not only has the DRPA not evaluated the Barnes project in line with its own Guidelines on Economic Development; none of the interested parties (Pew, Lenfest, Annenberg, the City of Philadelphia) has published a study of the project. (Link to the Statement by Professor M. Marcus)
• There is absolutely no evidence to support what appears to be a fore-gone conclusion that a Philadelphia Barnes project is of great benefit to Philadelphia and the region.
• The only study we have seen is The Abruzzo Case Analysis, by Professor James Abruzzo, which calls the Philadelphia Barnes plan "highly risky". That was in 2004 - before the current climate of extreme uncertainty. (Link to the Abruzzo Analysis)
  
• What we are looking at is, among other things, a huge Pork Barrel Project that will become a major consumer of public and private funding now and for however long it can stay together.
• Rather than an undertaking that ensures a financially stable future for the Barnes, this exposes the institution to a level of risk to which it has never been exposed in Merion. That there is no legal means of stopping it is a disgrace; however, we will continue to pursue whatever avenues remain available to block funding.
• The high risk, combined with the enormous lump sum investment for this insanity will affect other institutions as well. That is inevitable and explains why many in the arts and culture community perceive of the Barnes project like The Blob."

"When people say, 'You can't sell the art,' I say, 'OK, can we close five departments on campus?' Tell me what I can do. This is the problem"

The Jerusalem Post had a lengthy piece this weekend on Brandeis and the Rose Museum, which "had come to embody the legacy of the postwar generation of American Jewish art collectors, many of them successful entrepreneurs who rose from immigrant tenements to university boards through sheer force of will and imagination."

"Institutions of every stripe are scrambling for survival in a recession draining them dry of funds"

The Toronto Star had a piece this weekend on the deaccessioning debate. I'm quoted as follows:

"So an argument exists against an art-for-art, AMMD-approved, deaccessioning-only model. Why can there never be any other 'use of proceeds,' wonders New York lawyer Donn Zaretsky, 'no matter how important to an institution's mission?' So here's the question: Might the sale of some lesser pieces by the Toronto school board help pave the way for the next Alex Baumann, who could train in the board's revitalized swimming pools."

I'm also included in this round-up by Kelly Heyboer of the Newark Star-Ledger.

Let's Go to the Videotape

Bloomberg's Philip Boroff has more on collector Gregory Callimanopulos's lawsuit against Christie's (mentioned earlier here). In its response to Callimanopulos's motion for preliminary injunction, Christie's says "video recordings of the [May 13] Auction conclusively show that [another bidder] made a bid for the Artwork well before [the auctioneer] brought down the hammer .... Because the evidence conclusively shows that [the other bidder] bid on the Artwork before the hammer fell, this case does not even present a legal issue of whether [the auctioneer] properly exercised his considerable discretion under Christie's Conditions of Sale and the U.C.C. in recognizing a bid that was made with the hammer."

Croson, Diversity, & the Virginia State Bar

"Diversity" has a long history of being used to mask lowered standards and quotas for subsets of the human race. In US history this can be traced back to when Harvard's president was unable to use quotas to limit the admission of Jewish students (who scored well on the competitive entry exam), but the use of "diversity" reduced Jewish admissions to the desired 15% anyway.

In the modern era, the goal of "diversity" is something which we all should look at with suspicion. In particular, as lawyers we should look very closely at any such claim. A requirement that all people, regardless of ethnicity, gender, or creed, shall be equal under the law and that equals receive the same opportunities is laudable. However, the second "diversity" steps an inch over into the zone of set asides it becomes not just morally wrong, it becomes unconstitutional.

Anyone who has gone to law school post 1989 should know this. In 1989 City of Richmond v. Croson struck down governmental set asides for anyone in a specific zone unless in remedy of a specific past discrimination in that field and the set aside was the most narrow method of curing the discrimination. "Reverse discrimination" is just as much discrimination as any other under the constitution.

Of course, since Croson those who want set asides have learned not to say so out loud. "Diversity" has become the flag behind which they now gather. Those of us who would be excluded have become wary of this.

Comes now the Virginia State Bar, an administrative agency of the Virginia Supreme Court created by the General Assembly, and decides that it no longer needs to be the organization which patrols the activities of lawyers. It needs to be an organization engaged in social engineering. Through the last president and the current occupant of that office, we are having set asides pressed upon the Bar. The president wants to change the mission of the Bar, create a Diversity Conference, and create a seat on the VSB Council and Bar Executive Council for the Chair of that conference. Mind you, this is creating a seat based not upon expertise in any area of the law or judicial circuit representation or acclaim and recognition by the Bar in general, it's a seat solely because the person occupying it is "diverse."

With this in mind, it becomes extremely important to know what the president means by "diverse." However, the president of the Bar, being a lawyer, knows better than to do that because it would make his initiative unconstitutional on its face.

IT HAS BEEN SAID that we need to precisely define diversity to create such a structure. I disagree.While diversity by necessity must not neglect consideration of race, heritage, and gender, for example, I believe that the term must be allowed to evolve.

I'm surprised he actually went so far as to admit race, heritage, and gender must be considered (be the admission ever so backhanded). Nevertheless, without defining it he has declared it extremely important in the pursuit of the law.

Via the Virgina Lawyer (our Bar magazine), members have raised strong, well-reasoned objections to this as outside the scope of the Bar's function, a controversial social issue which the Bar should not get involved in, and an obvious beard for quotas. "'Diversity' Ends in a Racial Headcount", "Disband Task Force,Withdraw Proposal", "Rule of Law Not Linked to Diversity", "Focus on Individuals, Not Groups", "Disband Diversity Task Force".

Will these letters stop the Bar president? Probably not. Let's be honest, most lawyers couldn't give a hoot as to what the Bar is doing (right or wrong) unless it impacts their life or they need its protection. No one I've talked to even knew this initiative is pending. It'll get through without the notice of the vast majority of the Bar.

Next comes the possibility of legal challenge. After all, the Bar is created by one branch of Virginia's government and serves another; it's a government agent. Can it create these set asides? In particular, can it set aside a position on the VSB Council and VSB Executive Council based upon "diversity?" It's a question which might require some data before the question can be decided. After all, by opening the diversity committee to individual lawyers the Bar allows all Bar members to join. In other words, there won't be a sign at the door saying "White Male Christians need not apply." It's theoretically possible that this committee might actually be diverse. If the membership distribution of the conference is roughly equivalent to the membership distribution of the Bar and its leadership reflects such the conference would be constitutional. Want to take bets on whether that will be the case?

In Memory of Those Who Chose to Serve

"We are absolutely at a point in this economy where these sort of things have to be on the table"

Tamar Lewin in today's New York Times: "Brandeis University said this week that it would suspend payments to the retirement accounts of faculty and staff members starting in July."

The article closes with the following:

"Brandeis, founded in 1948 in Waltham, Mass., has had a tough year. In January, the art world was rocked by news that the trustees had authorized the closing of the Rose Art Museum and the sale of its well-regarded collection, which includes works by Roy Lichtenstein, Jasper Johns, Robert Rauschenberg and Ellsworth Kelly. That plan is now under review. The museum’s curated exhibitions ended last weekend, but some of the permanent collection will be exhibited starting in July."

Minor Sale

The Art Market Monitor notes that one of the works involved in Halsey Minor's dispute with Sotheby's -- a Childe Hassam painting he bought for $3.9m last Fall, but refused to pay for after discovering that the auction house hadn't disclosed that it had an interest in another work he bought at the same time -- sold this week for $2.3m. In response to a commenter, the Monitor "venture[s] that [Minor's] claim [against Sotheby's] is not sincere. He seized upon the [allegedly undisclosed interest] as evidence that Sotheby’s was not advising him properly in the purchase. But an auction house is a vendor. The idea that they are disinterested defies all common sense and commercial experience. Minor’s high dudgeon doesn’t change that. Generally a vendor has an interest in making a sale." Minor then shows up in the comments to say: "Speculation is always fun but let the court rule. They and they alone have all the facts. Just as an FYI this painting had a guarantee attached when I bought it. There was no mention in the catalogue. Are you aware of guaranteed items ever not being notated?"

Speaking of letting the court rule, I took a look at PACER, and it seems Sotheby's recently moved for partial summary judgment in the case. Their motion papers note that in 1997 Sotheby's wrote to to the New York City Department of Consumer Affairs (DCA), explaining that "since the adoption of the revised regulations in [1987], Sotheby's has understood that if the auctioneer makes a loan to an auction consignor secured by works of art which are included in an auction, Sotheby's is not obligated specifically to disclose in the catalogue which items are loan collateral. Rather, Sotheby's satsifies its disclosure obligation by including in the catalogue a general policy statement that sets forth its lending policy." The General Counsel for the DCA wrote back: "I can confirm that the practices described in your letter are in accord with" the pertinent rules.

Sold (UPDATED)

Two of the three Eakins paintings -- or, as I like to think of them, works which, having fallen under the aegis of a museum, were held in the public trust, to be accessible to present and future generations -- the Hirshhorn recently announced it was deaccessioning were sold at Christie's this week and therefore will not be accessible to present and future generations.

UPDATE: More Eakinses leaking out of the public trust.

Still Fighting

The Philadelphia Bulletin reports that "opponents of moving the Barnes Foundation art collection from Merion to Philadelphia asked members of the Delaware River Port Authority ... to rescind $500,000 in funding for the move yesterday."

It's not clear to me what impact this would have in any event. The total budget for the move is over $100 million.

"The treatment of consignment in bankruptcy has often been described as mystifying"

Another good art-law related student note: Hilary Jay, "A Picture Imperfect: The Rights of Art Consignor-Collectors When Their Art Dealer Files For Bankruptcy," in the Duke Law Journal. She does a nice job showing what a mess the existing law is, and makes some suggestions for fixing things, including extending state statutory protections for artist-consignors to collector-consignors.

Art Theft Recs

R.A. Scotti, author of the recently published "Vanished Smile: The Mysterious Theft of Mona Lisa" (see here), recommends some other books on art theft.

Because Even a Defense Attorney Might Want a Badge

If you're suffering from a serious case of badge envy, you too can pay $120 and get an "Officer of the Court" badge made. It won't give you any real powers, or actually mean anything, but I'm sure it will impress someone.

Bid Battle

Bloomberg's Philip Boroff reports that "Gregory Callimanopulos, a shipping magnate and collector, said in a lawsuit filed Friday in U.S. District Court that Christie’s improperly reopened bidding for [a Sam Francis] painting ... after his $3 million telephone bid was accepted by the auctioneer."

The Art Market Monitor was in the salesroom that night, and says:

"What happened in the room was fairly simple. [Auctioneer Christopher] Burge was bringing the hammer down [when] a spotter to his right called out a bid just as the hammer clapped down on the podium. Burge quickly announced the new bid and declared 'you saw it,' which was funny because he hadn’t seen it himself but heard the spotter shout. As he re-opened bidding, the telephone bidder made a half-hearted chopped bid and the late-bidder countered to win the lot as the room filled with murmurs. Jose Mugrabi could be seen in his seat wagging his finger at Burge."

Section 2-238(2) of the UCC provides that "a sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner. Where a bid is made while the hammer is falling in acceptance of a prior bid the auctioneer may in his discretion reopen the bidding or declare the goods sold under the bid on which the hammer was falling."

And Christie's Conditions of Sale -- which "by bidding at auction the bidder agrees to be bound by" -- provide that "the auctioneer has the right at his absolute and sole discretion to ... advance the bidding in such a manner as he may decide, ... and, in the case of error or dispute, and whether during or after the sale, to determine the successful bidder, to continue the bidding, to cancel the sale or to reoffer and resell the item in dispute. If any dispute arises after the sale, our sale record is conclusive."

"The Rose, as we have known it, is closing"

Geoff Edgers stops by the Rose Museum on the last day of its "final curated exhibtions."

"Holier Than Thou" / "There But For the Grace of God"

Sherry Colb has an article about what I think most of us who practice criminal law would recognize as the "those people" attitude. She gives it her own spin, calling it the "holier-than-thou effect." Basically, it is the inability of people see themselves as a person who would fail in situations where they were tempted - through chance, fate, or desperation - to break the societal compact as embodied in the law.

Ms. Colb goes further identifying 4 purposes to criminal law: retribution, deterrence, incapacitating offenders, and rehabilitation. She identifies retribution as the primary focus of the American system based upon the lack of rehabilitation programs in prisons in combination with rapes and gangs. Then she concludes that locking someone away in this situation, away from law-abiding citizens is a bad thing, so that shorter sentences are most likely preferable.

Indeed, the situation-dependent nature of behavior counsels against surrounding a person convicted of wrongdoing with other criminals for long stretches of time, during which he will be almost entirely cut off from what lawful behavior in civilized society looks like. Shorter and less brutal sentences, coupled with humane and educational transition opportunities for former prisoners, could yield better results for everyone.

To take into account the holier-than-thou effect might also facilitate the forgiveness necessary to our ability to think logically about the problem of crime. If we are filled with rage and hatred, it will be more difficult for us to imagine, and thus to allow, that someone who committed a bad act in the past might soon become (or might even have already been) a contributing member of society.

This article struck me as wrong in many ways, but I'm just going to concentrate on one here: Ms. Colb badly overestimates the effect of "holier than thou" on the system. Our system is far more dominated by the "there but for the Grace of God" thought process.

Here's a graphic of how I've observed the punishment of offenders in the time I've been practicing.



I've tried to be a little conservative in my estimates for this chart. In reality I think that the downward slope is more severe. However, I don't have actual figures, so I adjusted by assuming higher numbers of more severe punishments. In any event, it gives a true view of how offenders are actually punished.¹

Why is there such a severe downslope? Because the greatest number of offenses are treated with mercy. People just don't get thrown in jail for reckless driving, DUI, writing a bad check, or most misdemeanors the first time they are convicted (without aggravating circumstances). There's a good chance they won't go to jail for a second or even third misdemeanor conviction, particularly if they are different types (driving suspended, bad check, assault and battery). Furthermore, there's a whole slew of felonies wherein the first conviction will only get an offender probation.

Next come the convictions which should lead to incarceration, but do not because they are somehow diverted. Sometimes this is just having a case continued to be dismissed if there are no problems for a year. In other cases there are drug courts, shoplifting classes, anger management programs, and/or community service given in lieu of incarceration.

Then come the minor incarcerations. I don't know how many offenders get a couple days in jail or 10 days or 3 months, but I lay odds that by far the largest number of incarcerations fall within that range. Misdemeanor courts hand out punishments such as this daily and any misdemeanor court which has significant numbers of defendants appearing before it probably hands out several a day. Felony courts hand out incarcerations in the "up to 6 month" range all the time to offenders with prior misdemeanor records or their second or third felony conviction.

Even for those who actually have incarceration imposed there are mitigations against its effect. Most commonly these mitigations include serving time on days off of work (weekend time) and getting work release. However, it can also include things such as delayed reporting to jail, furloughs while in jail, or home incarceration. Even failing all of this, most every incarceration system has some sort of "good time" so that if the offender behaves he is not required to serve a certain amount of his sentence.

In my experience, to get more than a year an offender has to have a prior record, have committed multiple offenses, have committed a violent felony, or violated a particular law (firearm with drugs, 4th DUI, use firearm in felony). To get more than two years incarceration an offender usually has to combine two or more of these elements; 3 to 5 years usually requires even more of a combination of these elements. To get above 5 years the offender usually has to do something significant: armed robbery, rape, murder, etc. It may not be impossible to get above five years without having committed a major violent felony, but it'd be mighty hard (unless in a State with a very strict 3 strikes law). The most I've seen an offender convicted of larceny or the like get in Virginia is 5 years and even then it was a departure above guidelines.

Somewhere between 1 to 3 years of potential actual sentence comes the point at which mercy stops being an option. Even at 3 years a judge in Virginia can order the Department of Corrections to have an offender entered into a specific drug treatment program run in the prison. Still, there must come a point at which the tendency toward mercy must be overcome by obligations to the citizenry at large.

In these more serious offenses retribution, deterrence, and incapacitation are all tied together. A robber whom a jury sentences to 10 years in retribution is incapacitated for those 10 years and serves as a deterrence for those who consider following in his footsteps. However, when we consider the system as a whole, we must conclude that the system serves more of the purpose of deterrence and incapacitation. After all, no one really gets recompense (outside of restitution) in a criminal case. Retribution is at heart a distributive justice theory and no victim can have that which is taken in a rape or shooting actually returned by putting the other person in prison. At best, if one thinks that recompense can be made by putting someone in prison, the only person(s) brought back to equilibrium is the victim. For the rest of us it matters not whether the victim is made whole. For the vast majority of people the only effects are the protection of society through the incapacitation and deterrence.


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¹ Please note that most of this is modeled on Virginia's judicial system and the sentencing guidelines in place in Virginia.

Movie: Beyond a Reasonable Doubt

Y'know, life at my office isn't anywhere near this exciting:

"We are not in the business of upsetting and alienating our donors and community"

Interesting sidebar on the Montclair Art Museum deaccessioning: the museum has "decided not to auction off [a] 104-year-old portrait of one of its founders after his descendants complained that the memory of the Montclair civic leader was being disrespected." The portrait was expected to bring $25,000-$35,000.

The remainder of the "aggressive" deaccessioning remains on, however:

"The museum, which has been struggling financially as a result of the recession, has come under fire for its plan to deaccession so many works. Critics have questioned the timing of the sale and the decision to invest the proceeds for use in the future. [Montclair director Lora] Urbanelli claims the museum's actions are within the ethical guidelines outlined by the Association of Art Museum Directors."

Difficult Choices

One of the arguments Lee Rosenbaum likes to make against deaccessioning is the following:

"Perhaps an analogy might help them understand what's really at stake. If someone were to suggest that funds be raised by selling important books from the library, that (one hopes) would be a non-starter: Books go to the core of the college's educational mission."

(To which I once responded:

"Would we really object if a university decided it was in the best interest of the school to sell off some books -- presumably because they thought the proceeds from the sale could be put to better use in other ways (like funding athletic programs, or preserving the anthropology department, or supporting additional need-based scholarships, and so on)? ... Do we really want to say that university trustees and administrators can never, under any circumstances, sell off an asset that 'goes to the core' of its educational mission, even if the funds raised from the sale would be used to acquire other assets (or fund programs etc.) that also go to the core of its educational mission?")

Well, here we go: The University of San Francisco is reportedly considering selling items from the rare book room of its library. And it draws the usual responses. One bibliophile says: "Any way you look at it, this is a nasty business .... [D]eaccessioning - legitimate deaccessioning - is a necessary part of an institution's business, but doing so in this form and fashion is completely beyond the pale. Not only is selling off prize items from the collections just cutting off your nose to spite your face, it's also an incredibly short-sighted way to deal with financial difficulties." Another responds: "The financial peril USF faced must have been acute. ... Is it unfortunate that the Library has had to sell a few items? Indeed. Is it a catastrophe? No."

"Despite the promising effects of the TTCA, some disincentives to fractional giving still remain"

Honorable mention in the 2009 Paul Faherty Tax Writing Competition for law students went to Kristina Gordon of Loyola-Chicago for her (cleverly titled) Where is My Monet? Museums and Donors Lose an Important Incentive for Fractional Giving. (I appreciate the props in various footnotes.) I noted a related student note here.

Davis Suit

Josh Baer: "Earl Davis, the son of Stuart Davis, has sued dealer Michael Altman over 2 paintings. In the first he alleges that Altman never paid the estate on a $2 million sale to Alice Walton and the other is part of the Salander fiasco where he alleges Altman took a painting from Salander without proper title."

This isn't Davis's first Salander-related suit. See here. And more on Davis and Salander from the Maine Antique Digest a little while ago here.

Chilly

Back in November I mentioned a NY state court decision that I said "could have far-reaching implications for the auction houses." Judd Tully wrote about the case in the February Art+Auction, noting that it had "sent a chill down the collective spines of the major auction houses."

Christie's motion for reargument of the decision has now been denied (or, more accurately, the motion was granted, but the court stuck to the original decision). The court held that the fact that Christie's "never dealt with [the plaintiff]" is irrelevant: "lack of privity is not a viable defense to a fraud claim." It added:

"Christie's argues that if the fraud claims against it from a third party are sustainable, such liability could stretch out in perpetuity. It asks where or, more precisely, when that would end. Could it be liable under a theory of fraud not only for decades but for hundreds of years? While not unmindful of the validity of this line of inquiry, that question is not currently before the Court. The nexus between Christie's and Orsi is not only close, but also limited and finite."

One aspect of the decision that I did not mention in my initial post was that it also let stand plaintiff's claim for damages in the amount of $2,000,000 (the current value of an authentic Basquiat painting), rather than limiting him to $185,000 (what he paid for the painting). The court reaffirmed that holding as well, on the ground that UCC Section 2-721 "was intended to correct the traditional remedies available for fraud, and those remedies were therefore extended to coincide with those available for non-fraudulent breach [of contract]."

Justice Cahn wrote the initial decision. Justice Kornreich wrote the new one, so that's two separate judges sending chills down auction house spines. I suspect the next stop will be the Appellate Division.

"The second major art heist in 10 days in the Netherlands"

Details here. Here was the first one. The Art Market Monitor says "both highlight the problems of security in small museums."

You can't befriend a witness

Check out this ABA article about an attorney's attempt to use a third party to "friend" a witness on facebook to access character information. I think its interesting! Also check out the comments below the article.

Fairly Straightforward

The rigid formalism of the AAMD/AAM position on deaccessioning (sales to buy more art -- totally fine, knock yourself out; sales for any and all other reasons -- repulsive) leads its defenders to say some odd-sounding things, at least to my ear. Here's an example, from a story in the Newark Star-Ledger yesterday entitled "Sale of art linked to financial woes by Montclair museum sparks debate." AAM president Ford Bell is quoted as saying:

"It is fairly straightforward. Museums have a lot of stuff in their basements that they don't use. You don't want to be caring for and conserving objects and collections that aren't central to your mission. But it is not acceptable to sell parts of your collection in order to pay the bills."

What's great about this quote is that it perfectly encapsulates the internal inconsistency of the AAM's position. It starts off by talking down the works that museums sell in order to buy more art: it's stuff museums don't use, that isn't central to the museum's mission, valuable resources are being wasted caring for and conserving them. It's in the basement, for chrissakes. But then -- in the very same breath -- comes The Pivot. All of a sudden it is "unacceptable" to sell this same superfluous, basement-residing stuff -- for any purpose, no matter how worthy. (Notice how, in Bell's quote, it's just "stuff" when it's being sold to acquire other art, but it gets promoted to "parts of your collection" when it's being sold for other reasons.)

There's another amusing quote in the same article, this one from Montclair director Lora Urbanelli:

"Urbanelli said the museum is accelerating the pace of the deaccessionings to take advantage of the art market. 'The market might be down overall but certain areas are strong. Some sales may be better now than next year. Next year might be tougher,' she said" (my emphasis).

Really? They decided now is the time to take advantage of the art market? That's an interesting approach.

"This case has profound implications for artists' rights"

Last fall I wrote about "another frustrating VARA decision," this time involving artist Chapman Kelley's Wildflower work in Chicago. Kelley has now filed his appellate brief with the Seventh Circuit, relying primarily on the grounds I described in my earlier post:

1. I said the District Court's holding that the work was not "original" enough to qualify for copyright protection was "just plain wrong" under the Supreme Court's Feist decision. The brief says "the District Court invoked a legal standard that bears no relationship to the extremely low threshold for copyright protection established by the Supreme Court in Feist" (p. 10).

2. I also said:

"As an alternative holding, the court, without much analysis, followed the First Circuit in Phillips v. Pembroke in finding that VARA simply does not protect site-specific art. I discussed the Phillips decision here. The gist of that discussion was that, while a reasonable argument can be made that VARA doesn't prevent the removal of a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. Kelley's work serves as a good example. Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things? What does the work's site-specificity have to do with any of that?"

Kelley's brief argues that the District Court was wrong to adopt "(without any analysis of its own) the First Circuit's fatally flawed conclusion regarding site-specific art" (p. 10):

"Site-specific art is just as vulnerable to acts of distortion, mutilation, or modification ... as non site-specific art .... A site-specific mural ... is just as vulnerable to mutilation as a painting hanging on the wall of a museum and VARA should and does protect both. ... [This case] highlights the extent of the error in the First Circuit's interpretation of VARA's application to site-specific art. The Park District did not remove and thereby conceptually damage [Kelley's work]. Instead, the Park District did something equivalent to painting a huge garish mustache on the Mona Lisa .... The Park District did not remove and relocate Chapman Kelley's art -- instead it distorted and mutilated the [work] in the exact location where it has been for decades ..." (pp. 19-20).

"An absence of clues meant an abundance of theories, and Scotti advances them all in a collection of arresting but disparate narratives"

Yesterday's NYT Book Review included a review of "Vanished Smile: The Mysterious Theft of Mona Lisa," one of two new books on the 1911 crime (see earlier post here). You can read the first chapter of the book here. Another review from the Times here.

"Finding an answer of what's best to do with a valuable painting is difficult"

The Wilmington Library in Delaware is selling 14 N.C. Wyeth illustrations "to pay for $5 million in major improvements." Story here. "No one is sadder than we are," says the president of the library's board of managers. "We love the paintings but we also love the building and want to keep the library in the building and make improvements in tough economic times."

Are these works held in trust for the public? Or do only museums hold work in trust for us? Is this sale repulsive? It's so hard to keep it all straight sometimes.

Framing Art Vandalism

An interesting student note by M.J. Williams in the Brooklyn Law Review arguing for legal recognition of art vandalism separate and distinct from other forms of vandalism. As a bonus, it includes an appendix of reported instances of art vandalism in public institutions over the last 30 years.

"Obama Continues to Promote Limits on Charitable Deductions" (UPDATED)

The Chronicle of Philanthropy has the latest.

UPDATE: More from CNN.com: "The charitable deductions proposal has drawn opposition from congressional Democrats."

More on Flores-Figueroa

I got a couple interesting comments on my last post. Donald first raised the Rule of Lenity because the statute is poorly written. I couldn't quite get there, but it did start me thinking. What if you ignored the way the Court did its analysis and looked at the statute as a whole, considering "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" as a verbal phrase, thus rendering "transfers, possesses, or uses, without lawful authority, a means of identification of another person" into a multi-part verb all of which is modified by knowingly. However, while the thought was still nascent in the slow-grinding gears in my head, Neal Goldfarb stepped up and pointed to a blog post and his amicus brief. Both put forth strong arguments for that position. Both are better than the Supreme Court's "'cuz it looks right" explanation.

However, as textual interpretation is not strictly the same as grammar, I must say that I am not entirely persuaded by their arguments. The language of the statute is sloppy, but it does leave 2 separate occurrences which the defendant could have knowledge of: (1) the transfer, possession, or use & (2) the actual state of the identification. Knowing of a transfer does not require knowledge of the state of the identification. Knowing the state of an identification does not require knowledge of its transfer.

Still, the verbal phrase argument carries enough weight to make the phrase ambiguous and thus brings the Rule of Ambiguity into play. This then requires that a knowledge requirement be added to a means of identification of another person, because ambiguous statutes are to be interpreted in favor of the defendant.

Disclosure: I think the above to be a correct reading of the statute in its entirety. However, as I have previously stated on this blawg, I find strict liability in criminal statutes to be an anathema. I may be straining to get away from a reading which requires a strict liability if the identification happens to be that of another person, whether the defendant knows it to be or not.

MOCA Update

The LA Times's Mike Boehm has an update on the California attorney general's investigation into LA MOCA's finances -- "the withered state of which became a running news story last November and December."

Third-Party Guarantee

At Christie's last night, a Picasso was sold by Jerome Fisher, a founder of the footwear company Nine West and (according to the NYT's Carol Vogel) "a victim of the Bernard L. Madoff swindle," for $14.6 million. The WSJ's Kelly Crow adds some further detail:

"Before the sale, the auction house had signed up outside investors to promise the seller of the Picasso a prearranged price for the painting. In exchange, the investors were promised a cut of any profits should the work sell to another bidder for an even greater price, an arrangement called a third-party guarantee. During the sale, the anonymous investors bid on the Picasso but were ultimately outbid."

"Ultimately the administration decided that the government should hold onto more tax revenue to improve health care"

The director of the White House domestic policy council tells foundation officials that President Obama’s plan to limit charitable tax deductions "was hotly debated in the White House."

More Art-Related Bankruptcy News

The Wall Street Journal reports: "The art lovers at a once high-flying subprime mortgage lender now under bankruptcy protection and California’s insurance regulator have settled their fight over collection of Ansel Adams prints. Fremont General Corp. has agreed to let California’s Insurance Commissioner to keep $4.1 million from the sale of Ansel Adams prints sold at Christie’s auction house last year in the months before the company filed for bankruptcy protection."

Salander Bankruptcy Compromise

Bloomberg's Philip Boroff has the latest on the Salander bankruptcy: "Bank of America’s First Republic unit agreed to share proceeds from the sale of art with other creditors of the bankrupt Salander-O’Reilly Galleries LLC. The compromise was announced [Monday] in U.S. Bankruptcy Court in Manhattan. As a secured creditor, First Republic could have claimed the proceeds before others."

Flores-Figueroa: Forgiving Sloppy Statutese

[1] The USSC decided a case yesterday contrary to the actual language of the statute - using the language of statutory interpretation. In Flores-Figueroa, the Court had to decides "knowingly" is not an adverb but a substitute for the phrase "knowing it to be." The Court is interpreting this statute:

[2] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. 18 U. S. C. §1028A(a)(1)

[3] However, when the Court is finished with it, the statute ends up being this:

[4] transfers, possesses, or uses, without lawful authority, a means of identification knowing it to be of another person.

[5] The Court's rationale is that

As a matter of ordinary English grammar, it seems natural to read the statute’s word "knowingly" as applying to all the subsequently listed elements of the crime. The Government cannot easily claim that the word "knowingly" applies only to the statutes first four words, or even its first seven.

[6] Poppycock. Balderdash. Fiddlesticks.

[7] "Knowingly" does not equal "knowing it to be." To be certain, the statute is poorly written and would make much more sense if it were written in the manner which the Court decided to rewrite it. However, as we all learned somewhen about the 3d grade, "ly" is a suffix indicating an adverb. This confines it to the verbs, "transfers, possesses, or uses." Thus, the government is quite correct in claiming that "knowingly" applies only to those four words. The Court is correct in stating that "without lawful authority" (the next three words-making "its first seven") isn't modified by "knowingly" because they also modify the verbs.

[8] Before anyone argues that certain adjectives can also end in "ly", I concede the point. Words such as "lovely" are clearly adjectives: "the lovely dress." Still, the general rule isn't violated in this case.

[9] In any event, I invite you to diagram that statute. Go on, it's a skill we all learned in seventh grade English class. Okay, now look at that line which separates the verbs from the object. Which side is "knowingly" on? The verbal side. Or, if you don't have the rudimentary English skills to do that, just take "knowingly" and try to fit it anywhere into "a means of identification of another person" without changing the form of "knowingly." It doesn't work.

[10] Justify your decision another way. Tell me that the Constitution, via the common law, requires a defendant to intend every element of a crime. Tell me there's a rule of statutory interpretation requiring intent for every element of a crime. Heck, tell me there's a scriviner's error. Just don't tell me you've reached this conclusion "as a matter of ordinary English grammar."

Announcing My Availabilty to Serve