Monday, June 29, 2009
Another Scream Sentence
The New York Times: "A man who admitted his role in the theft of the Edvard Munch painting 'The Scream' was sentenced Monday to two and a half years in prison by a court in Oslo .... The man, Bjoern Hoen, 41, had been found guilty by a Norwegian appeals court of providing the getaway vehicle that was used in the daytime heist. ... Last year, Norway’s Supreme Court sentenced one thief, Stian Skjold, to six years in jail and the getaway driver, Petter Tharaldsen, to 10 years and 6 months."
Free Sample of Coffee
Hey all you recent grads now studying for the bar exam. You probably need something to help get you through those long hours of studying! Check out this free sample of coffee from Dunkin Donuts.
Sunday, June 28, 2009
Melendez-Diaz, Magruder, & Virginia
Having watched the continuing angst over Melendez-Diaz, I started asking around as to why everyone is so worried in light of Virginia's Magruder decision. The answer I got back from several people was "because Magruder is before the Supreme Court too." Of course, nobody seemed to know anything else, so I went looking.
After searching for "Magruder" and not finding anything, I came upon it when I searched for the other parties who had been consolidated in the appeal to the Virginia Supreme Court: Briscoe and Cypress (apparently Magruder must not have appealed his case to the federal supreme court).
Here's the timeline for the case to date:
Beyond this, I've had a couple of defense attorneys I know swear to me that the language in 19.2-187.1, "The accused . . . shall have the right to call the person performing such analysis . . . and examine him in the same manner as if he had been called as an adverse witness" shifts the burden to the defendant to bring the expert to trial and call him as the defense's witness.
The party which subpoeanaes the expert to trial is a red herring, since even if the defendant was required to subpoena the expert, subpoenaing is different from actually "calling" the witness at trial. We've all seen cases wherein people are subpoenaed yet never testify. Even so, there is nothing in the statute which requires the defendant to subpoena the expert. The last sentence of the statute is instructive here: "Such witness shall be summoned and appear at the cost of the Commonwealth." This appears to be a poorly written requirement that the Commonwealth summon and pay for the appearance of the expert. Even if one is not convinced by an initial reading, and thinks that the General Assembly had to instruct courts that criminal case subpoenaes are paid for by the State, it's commonsense that the way in which the Commonwealth would pay the "cost" would be for it to arrange the subpoena and any required expenses pretrial. Still, as I wrote previously, the statute really needs the General Assembly to go in and make some changes in order to foreclose any arguments.
I still think that, at least as long as Magruder stands, it will be nigh unto impossible for a defendant to even raise the burden shifting argument. I can't figure a way in which the defendant could get to the point at which he could raise the issue without the cooperation of the Commonwealth. Even assuming arguendo that the defense wasn't required to demand the prosecution produce the expert and was somehow able to subpoena the expert without the Commonwealth finding out before trial, he'd have to raise his objection when the prosecution went to introduce the certificate of analysis during the Commonwealth's case in chief. In order to fulfill the requirements of Magruder, the defendant would have to inform the trial court that he was being required to call the witness. Magruder requires the defendant to (1) "avail [himself] of the opportunity to require the presence of a particular forensic analyst at trial", and be (2) "in the position of being forced, over [his] objection, to call a forensic analyst as a witness). Any prosecutor with half a brain cell will then withdraw the certificate and call the expert himself as part of his case in chief, foreclosing the burden shifting argument.
As things stand, the Commonwealth's statutory plan is on solid footing. Now we just have to wait for word from the Mount about the fate of Magruder (Briscoe/Cypress).
After searching for "Magruder" and not finding anything, I came upon it when I searched for the other parties who had been consolidated in the appeal to the Virginia Supreme Court: Briscoe and Cypress (apparently Magruder must not have appealed his case to the federal supreme court).
Here's the timeline for the case to date:
May 29 2008 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 3, 2008)This case has not been granted certiorari by the US Supreme Court (otherwise it would have a "Petition GRANTED" entry). It's still up in the air and at this moment the controlling case in Virginia remains Magruder.
Jun 10 2008 Order extending time to file response to petition to and including August 4, 2008.
Aug 1 2008 Brief of respondent Virginia in opposition filed.
Aug 14 2008 DISTRIBUTED for Conference of September 29, 2008.
Aug 14 2008 Reply of petitioners Mark A. Briscoe, and Sheldon Cypress filed. (Distributed)
Jun 25 2009 DISTRIBUTED for Conference of June 29, 2009.
Beyond this, I've had a couple of defense attorneys I know swear to me that the language in 19.2-187.1, "The accused . . . shall have the right to call the person performing such analysis . . . and examine him in the same manner as if he had been called as an adverse witness" shifts the burden to the defendant to bring the expert to trial and call him as the defense's witness.
The party which subpoeanaes the expert to trial is a red herring, since even if the defendant was required to subpoena the expert, subpoenaing is different from actually "calling" the witness at trial. We've all seen cases wherein people are subpoenaed yet never testify. Even so, there is nothing in the statute which requires the defendant to subpoena the expert. The last sentence of the statute is instructive here: "Such witness shall be summoned and appear at the cost of the Commonwealth." This appears to be a poorly written requirement that the Commonwealth summon and pay for the appearance of the expert. Even if one is not convinced by an initial reading, and thinks that the General Assembly had to instruct courts that criminal case subpoenaes are paid for by the State, it's commonsense that the way in which the Commonwealth would pay the "cost" would be for it to arrange the subpoena and any required expenses pretrial. Still, as I wrote previously, the statute really needs the General Assembly to go in and make some changes in order to foreclose any arguments.
I still think that, at least as long as Magruder stands, it will be nigh unto impossible for a defendant to even raise the burden shifting argument. I can't figure a way in which the defendant could get to the point at which he could raise the issue without the cooperation of the Commonwealth. Even assuming arguendo that the defense wasn't required to demand the prosecution produce the expert and was somehow able to subpoena the expert without the Commonwealth finding out before trial, he'd have to raise his objection when the prosecution went to introduce the certificate of analysis during the Commonwealth's case in chief. In order to fulfill the requirements of Magruder, the defendant would have to inform the trial court that he was being required to call the witness. Magruder requires the defendant to (1) "avail [himself] of the opportunity to require the presence of a particular forensic analyst at trial", and be (2) "in the position of being forced, over [his] objection, to call a forensic analyst as a witness). Any prosecutor with half a brain cell will then withdraw the certificate and call the expert himself as part of his case in chief, foreclosing the burden shifting argument.
As things stand, the Commonwealth's statutory plan is on solid footing. Now we just have to wait for word from the Mount about the fate of Magruder (Briscoe/Cypress).
Friday, June 26, 2009
Charitable Deductions Update
The New York Times had a story today on the possibilities for paying for President Obama's health care proposal. It includes the following:
"Limit income-tax deductions for high earners. This is Mr. Obama’s main idea for raising revenue, but Congress is not likely to pass it except in a greatly scaled-down form.
"Limit income-tax deductions for high earners. This is Mr. Obama’s main idea for raising revenue, but Congress is not likely to pass it except in a greatly scaled-down form.
"He proposed ... making taxpayers in the top income tax brackets ... deduct their mortgage interest, state and local taxes and charitable donations at the 28 percent income tax rate. Democratic leaders immediately objected that that would hurt charities, universities and other entities dependent on tax-deductible donations ....
"Mr. Obama has not given up. He counters that a 28 percent itemized deduction rate for top earners would be the same as under President Ronald Reagan. Just 1.4 percent of households would be affected, the nonpartisan Tax Policy Center reported. The Center on Philanthropy at Indiana University says charitable giving would decrease 2 percent.
"Any compromises would raise less revenue than Mr. Obama proposed. One alternative would exempt charitable contributions from the 28 percent limit. That, however, would provoke governors from high-tax states or Realtors and bankers protective of the mortgage tax break to press for exempting the other categories as well.
"Another idea would maintain the [current] rates for itemized deductions after the Bush tax cuts for the rich expire in 2011 .... That would leave the current break for deductions unchanged, but prevent it from becoming relatively more generous when income taxes rise for affluent taxpayers.
"Even that fallback hit a wall in the Senate Finance Committee. The opposition of Senator Charles E. Grassley, the panel’s senior Republican, carries weight with Senator Max Baucus, the Democratic chairman from Montana, who is determined to produce a bipartisan bill. Both men say any tax increases or cost savings should come from the health sector."Does the Virginia Notice - Demand Scheme Impermissibly Shift the Burden of Proof?
The whole crimlaw world seems to be going mad in Virginia as people have read Melendez-Diaz and reacted with either glee or panic. No one seems to realize that the entire question has already been settled and the Virginia appellate courts have already found the Virginia notice-demand scheme to satisfy the confrontation clause. Calm down. There's nothing new here. For goodness sake, go read Magruder.
The only possible real issue with the statutory scheme is whether it shifts the burden to the defendant to provide evidence. The Virginia Supreme Court also addressed this in Magruder:
The only possible real issue with the statutory scheme is whether it shifts the burden to the defendant to provide evidence. The Virginia Supreme Court also addressed this in Magruder:
The defendants do, however, claim that the statutory procedure, by its terms, shifts the burden of producing evidence and requires a criminal defendant to call the forensic analyst in order to exercise his right to confront that witness. This argument is not cognizable under the Confrontation Clause. Instead, it raises due process concerns that are not properly before us in these appeals. Because the defendants did not avail themselves of the opportunity to require the presence of a particular forensic analyst at trial, they were never in the position of being forced, over their objection, to call a forensic analyst as a witness. In other words, no defendant said to the respective circuit court, "the forensic analyst is here to testify but the Commonwealth must first call the witness." Like the situation in Brooks, "the trial court never had occasion to address the proper order of proof."In other words, the statute might unconstitutionally burden shift, but only if the prosecutor screws up can a defendant preserve the issue for appeal. In order to give the defendant grounds for an objection, the prosecutor would have to get the demand, bring the witness in, and then refuse to call the witness, thus forcing the defendant to call the witness. I've never seen a prosecutor do that. If the defense has demanded that the expert witness be there, why wouldn't the prosecutor use her as a weapon against the defense? So, while the particular set of circumstances needed for the the objection to even be made could happen, it seems rather unlikely. No objection = no error preserved = no appeal of whether the statute unconstitutionally shifts the burden of proof to the defendant.
"Let museums sell art if they must"
The editors of the Schenectady Gazette come out against the Brodsky Bill:
"Indeed, cultural institutions should only turn to [deaccessioning] as a last resort. But when it comes to selling a painting or similar asset to keep the doors open or pay the curator’s salary, they — like any other business — should have the right."
The Deaccessioning Blog says it "seems like the tide is turning on the anti-deaccessionists."
"Indeed, cultural institutions should only turn to [deaccessioning] as a last resort. But when it comes to selling a painting or similar asset to keep the doors open or pay the curator’s salary, they — like any other business — should have the right."
The Deaccessioning Blog says it "seems like the tide is turning on the anti-deaccessionists."
Melendez-Diaz and Virginia Law
Yesterday, the federal supreme court rejected the use of certificates of analysis in trial, unless the defendant waives his right to have the actual person who did the analysis testify. It is an extension of Scalia's confrontation absolutism and has far reaching implications. Certificates have been used for a number of things: establishing DUI breath &/or blood levels, establishing that a substance is a drug, DNA, fingerprints, etc.
However, the court did allow one semi-exception to its rule: notice and demand regimes. Under these types of procedures, the prosecution gives notice of intent to use a certificate as proof and the defendant then has to demand the presence of the person who did the analysis or the defendant is deemed to have stipulated the content of the certificate as valid (waiving his right to confront). With this in mind, I went looking at the Virginia statutes governing this to see where we stand.
Under 19.2-187, as long as a certificate is filed with the clerk at least 7 days before trial it is admissible as evidence. Furthermore, upon filing the correct paperwork, the defense can require the court to send it a copy of the certificate at least 7 days prior to trial. 19.2-187.01 allows the certificate as proof of proper chain of custody. 19.2-187.02 allows blood reports taken at the hospital as evidence. 19.2-187.1 allows the defendant to demand that the person who did the analysis be present at trial (at prosecutor summons and cost) and gives the defense the right to "examine him in the same manner as if he had been called as an adverse witness."
Statutory Interpretation
One could wish that the statutory scheme was more tightly written, but it does appear that Virginia has a notice and demand structure in place. The notice is the required filing of the certificate of analysis no later than 7 days pretrial. Why else require a piece of the Commonwealth's evidence to be placed in the court file if not to give notice of the Commonwealth's intent to use it?
The demand part of the Virginia scheme is quite clear. The defense has an absolute right to demand the person who performed the analysis be present at trial under 19.2-187.1.
However, the language of 19.2-187.1 needs some serious reworking. It allows the defense "to call the person . . . as a witness therein, and examine him in the same manner as if he had been called as an adverse witness." While this does not impact notice and demand statutory scheme, it could give rise to burden-shifting arguments. The General Assembly needs to change that language to something like "to require the Commonwealth to call the person . . . as a witness therein" and it wouldn't hurt to drop the language after the comma (although it seems to just be a fancy way of saying "cross-examine"). As a practical matter, I've never seen a prosecutor not call the expert witness once the defendant has required the expert's presence and I think this may make any burden-shifting objection moot. Still, the statute needs fixing.
This statutory scheme was originally developed as a hearsay work around. It also presents the type of notice and demand regime required by the court to satisfy the Constitution's confrontation clause.
However, the court did allow one semi-exception to its rule: notice and demand regimes. Under these types of procedures, the prosecution gives notice of intent to use a certificate as proof and the defendant then has to demand the presence of the person who did the analysis or the defendant is deemed to have stipulated the content of the certificate as valid (waiving his right to confront). With this in mind, I went looking at the Virginia statutes governing this to see where we stand.
Under 19.2-187, as long as a certificate is filed with the clerk at least 7 days before trial it is admissible as evidence. Furthermore, upon filing the correct paperwork, the defense can require the court to send it a copy of the certificate at least 7 days prior to trial. 19.2-187.01 allows the certificate as proof of proper chain of custody. 19.2-187.02 allows blood reports taken at the hospital as evidence. 19.2-187.1 allows the defendant to demand that the person who did the analysis be present at trial (at prosecutor summons and cost) and gives the defense the right to "examine him in the same manner as if he had been called as an adverse witness."
Statutory Interpretation
NOTICE
One could wish that the statutory scheme was more tightly written, but it does appear that Virginia has a notice and demand structure in place. The notice is the required filing of the certificate of analysis no later than 7 days pretrial. Why else require a piece of the Commonwealth's evidence to be placed in the court file if not to give notice of the Commonwealth's intent to use it?
DEMAND
The demand part of the Virginia scheme is quite clear. The defense has an absolute right to demand the person who performed the analysis be present at trial under 19.2-187.1.
However, the language of 19.2-187.1 needs some serious reworking. It allows the defense "to call the person . . . as a witness therein, and examine him in the same manner as if he had been called as an adverse witness." While this does not impact notice and demand statutory scheme, it could give rise to burden-shifting arguments. The General Assembly needs to change that language to something like "to require the Commonwealth to call the person . . . as a witness therein" and it wouldn't hurt to drop the language after the comma (although it seems to just be a fancy way of saying "cross-examine"). As a practical matter, I've never seen a prosecutor not call the expert witness once the defendant has required the expert's presence and I think this may make any burden-shifting objection moot. Still, the statute needs fixing.
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This statutory scheme was originally developed as a hearsay work around. It also presents the type of notice and demand regime required by the court to satisfy the Constitution's confrontation clause.
Thursday, June 25, 2009
"I believe it ignores the dire realities that museums like the Albany Institute of History & Art face every day"
Move over, Hugh Davies. Move over, Richard Armstrong. Here comes Christine Miles, director of the Albany Institute of History & Art, writing in opposition to the Brodsky Bill in the Albany Times Union:
"Does it make any sense to prevent the deaccessioning of works which then won’t be enjoyed by the public because the institution that houses it can’t afford to keep its doors open? I don’t think so. Yes, the public interest in making these works available to the people must be preserved, but not at the expense of the organizations who provide the stewardship necessary to do so."
"Does it make any sense to prevent the deaccessioning of works which then won’t be enjoyed by the public because the institution that houses it can’t afford to keep its doors open? I don’t think so. Yes, the public interest in making these works available to the people must be preserved, but not at the expense of the organizations who provide the stewardship necessary to do so."
Wednesday, June 24, 2009
Debating Deaccessioning II
I have a piece in the summer issue of The Art Newspaper on deaccessioning. It should all sound pretty familiar to regular readers of the blog, but it was nice to have the opportunity to lay out some of the arguments in a more sustained way and for a different audience. (Quick, somebody get Assemblyman Brodsky a subscription!) An excerpt:
"In fact, however, the best of the LACMA works were bought by a London dealer, and all 18 Orange County works went to a single unnamed private collector. Similarly, most of the Montclair works are ending up in private hands, no longer part of the 'public trust.' Nevertheless, the AAMD ultimately blessed each of these transactions on the simple grounds that the resulting proceeds will be used for acquisitions (someday). From the AAMD’s perspective, it’s perfectly fine for a museum to raid its collection and sell work, just so long as the proceeds are put into an account labeled 'acquisitions'—even if the particular acquisitions have yet to be identified, and even if it just so happens, by happy coincidence, that having the money sit in that account helps satisfy the museum’s bond covenants. But selling the same work, for other valuable museum purposes (improving education, upgrading facilities, staying open more hours, reducing admission fees, saving jobs, etc), is never, ever, under any circumstances okay. Unless you define the public interest as 'keeping ever more art in storage at more museums' it’s hard to see how the public benefits from this state of affairs."
"In fact, however, the best of the LACMA works were bought by a London dealer, and all 18 Orange County works went to a single unnamed private collector. Similarly, most of the Montclair works are ending up in private hands, no longer part of the 'public trust.' Nevertheless, the AAMD ultimately blessed each of these transactions on the simple grounds that the resulting proceeds will be used for acquisitions (someday). From the AAMD’s perspective, it’s perfectly fine for a museum to raid its collection and sell work, just so long as the proceeds are put into an account labeled 'acquisitions'—even if the particular acquisitions have yet to be identified, and even if it just so happens, by happy coincidence, that having the money sit in that account helps satisfy the museum’s bond covenants. But selling the same work, for other valuable museum purposes (improving education, upgrading facilities, staying open more hours, reducing admission fees, saving jobs, etc), is never, ever, under any circumstances okay. Unless you define the public interest as 'keeping ever more art in storage at more museums' it’s hard to see how the public benefits from this state of affairs."
Tuesday, June 23, 2009
"Who is this 'public' we keep hearing about?"
The Deaccessioning Blog on this morning's NYT story on the Brodsky Bill.
Monday, June 22, 2009
"A perfect mess with a long, dismal aftermath"
In this week's Time, Richard Lacayo looks back on the 20th anniversary of the "Mapplethorpe Wars," including the criminal obscenity trial in Cincinnati: "Make no mistake, the battle over Mapplethorpe resulted in sustained harm to arts funding in the U.S."
It's Back
"US Copyright Register Marybeth Peters told Intellectual Property Watch that orphan works legislation is expected to be introduced within the next 10 days."
A bunch of posts from the last go-round here.
A bunch of posts from the last go-round here.
Brodsky Bill Update
Robin Pogrebin has the latest in the New York Times. She mentions the June 1 letter from "more than a dozen major cultural institutions" (including the Met, MoMA, the Guggenheim, and the Whitney) pleading with legislators to slow down. But Brodsky is unmoved: "the problem of deaccessioning is real and growing" and "the need for action is immediate."
CrimLaw Live
Topic: An outline of the Virginia Criminal Trial Process, from Magistrate thru Sentencing
Sunday, June 21, 2009
The Long and short of it (UPDATED)
The big news just before the weekend was that the city of Long Beach was, according to an LA Times headline, "threatening" the Long Beach Museum of Art with the "sale of artwork."
According to the Times, the city owns the museum and 1,400 works of art acquired prior to 1985. In 1999, the museum borrowed money for construction of a new two-story exhibition pavilion. The city agreed to be responsible for the bond debt if the museum couldn't pay it back. Now, with the "chronically deficit-ridden" museum apparently unable to pay off the debt, and the city's own budget deficit at around $20 million, one city councilman was quoted as saying "all options will remain on the table until the bond is paid off."
LA Times art critic Christopher Knight zoomed right past repulsive to "Stalin-esque."
The Deaccessioning Blog says "if this doesn't prove my point I don't know what will. Any institution that is 'critically deficit-ridden' should undergo a radical evaluation and transformation, even if closure is the answer."
I want to make a different, more narrow point, and that is that it seems to me the "public trust" argument completely breaks down in a situation like this, where it is the city itself which owns the museum and therefore it is the public, acting through their democratically elected representatives, that seems to be pushing for the sale.
That's assuming anyone is really pushing for the sale. A later story in the Contra Costa Times quotes a city official as saying: "That certainly would be a last resort as far as we're concerned. What we said is that everything is on the table, but selling art is certainly the last option." The story continues:
"The solution of selling off art was the focus of an article in the Los Angeles Times on Friday. 'We're actually a little surprised by the article because we only met with [the museum's executive director] and one of his board members once,' said [the city official]. 'The building (presently owned by the museum foundation), taking over the art (half is owned by the city, half by the foundation) or replacing the foundation and bringing in another entity who can manage the museum - all of those are preferred options. ... The museum really hasn't presented us with any offers at this point. This is in part some of our frustration. We are open to any suggestions or ideas that the museum might have. It's just that they haven't been forthcoming. And so we're now kind of down to the wire where we don't have a whole lot of time left to explore these options."
UPDATE: The Art Market Monitor: "Is Long Beach a Dictatorship?"
According to the Times, the city owns the museum and 1,400 works of art acquired prior to 1985. In 1999, the museum borrowed money for construction of a new two-story exhibition pavilion. The city agreed to be responsible for the bond debt if the museum couldn't pay it back. Now, with the "chronically deficit-ridden" museum apparently unable to pay off the debt, and the city's own budget deficit at around $20 million, one city councilman was quoted as saying "all options will remain on the table until the bond is paid off."
LA Times art critic Christopher Knight zoomed right past repulsive to "Stalin-esque."
The Deaccessioning Blog says "if this doesn't prove my point I don't know what will. Any institution that is 'critically deficit-ridden' should undergo a radical evaluation and transformation, even if closure is the answer."
I want to make a different, more narrow point, and that is that it seems to me the "public trust" argument completely breaks down in a situation like this, where it is the city itself which owns the museum and therefore it is the public, acting through their democratically elected representatives, that seems to be pushing for the sale.
That's assuming anyone is really pushing for the sale. A later story in the Contra Costa Times quotes a city official as saying: "That certainly would be a last resort as far as we're concerned. What we said is that everything is on the table, but selling art is certainly the last option." The story continues:
"The solution of selling off art was the focus of an article in the Los Angeles Times on Friday. 'We're actually a little surprised by the article because we only met with [the museum's executive director] and one of his board members once,' said [the city official]. 'The building (presently owned by the museum foundation), taking over the art (half is owned by the city, half by the foundation) or replacing the foundation and bringing in another entity who can manage the museum - all of those are preferred options. ... The museum really hasn't presented us with any offers at this point. This is in part some of our frustration. We are open to any suggestions or ideas that the museum might have. It's just that they haven't been forthcoming. And so we're now kind of down to the wire where we don't have a whole lot of time left to explore these options."
UPDATE: The Art Market Monitor: "Is Long Beach a Dictatorship?"
"In fact Kinkade has — justly — won the vast majority of the lawsuits which have been brought against him"
Felix Salmon says Thomas Kinkade is "bad, not evil": "The store owners ... lost money when ... the internet made secondary-market values of Kinkade’s work much more transparent. Suddenly, the enormous growth in past Kinkade sales was no longer a good thing: there were a lot of Kinkades to go around, and many of the buyers were people who bought on the assumption that their paintings would increase in value and they could make money on their investment. Up until the arrival of the internet, that worked for Kinkade, whose company set the prices for all his paintings and would raise them steadily. After the arrival of the internet, a whole industry arose buying and selling Kinkades at market-set, rather than Kinkade-set, prices. And that was the end of the success days for the company: without monopoly pricing power, Kinkade was nothing. The stores failed, ultimately, not because Kinkade treated them badly, and not because other stores were undercutting them. The stores failed because Kinkades are a commodity, and anybody wanting to buy one could get a second-hand Kinkade online at a much lower price than that charged at retail. Buyers no longer believed that their paintings would increase in value, so they bought fewer than they used to. And when they did buy, they were likely to buy already-existing Kinkades rather than new ones."
"People can interpret them differently, but we did nothing outside the AAMD guidelines"
The LAT's Mike Boehm spoke with Orange County Museum of Art director Dennis Szakacs, who, as far as I can tell, is the first museum director to come under fire for not following the Ellis Rule.
Thursday, June 18, 2009
"Judge Slams MoMA, Guggenheim on Secret Holocaust Art Agreement"
That's a headline from Bloomberg today. A few notes:
1. The slamming in question took place in March. (Here's a NYT story at the time.) I'm not sure why it's news today. I guess the hook for the story is that the decision "has become the talk of the Holocaust restitution community."
2. I'm not sure why Judge Rakoff was so upset with the museums. The settlement, including a confidentiality provision, was reached on Feb. 2, the morning the trial was to have started. Judge Rakoff's written order notes that on March 6 he "directed the parties to submit letters stating whether they object to making the settlement agreement public and setting forth the grounds for any such objection. By letter that same day, the Museums informed the Court that they no longer had an objection to making the settlement terms public and that they were prepared to waive the confidentiality provision." It was the plaintiffs who refused.
3. It's worth pointing out that, despite the slamming, the Court left the confidentiality in place. As the order noted, "the Second Circuit strongly endorses the confidentiality of settlement agreements in virtually all cases." Allowing parties' to keep their agreements confidential encourages settlement, and there is a public interest in settlement of litigation.
4. Last, it's not clear why Judge Rakoff thinks it would be in the public interest to make this settlement (more) public. We already know the museums paid some money to the plaintiffs, and we also know the paintings will remain with the museums. Why do we need to know how much money the plaintiffs got? Why is that a matter of great public interest?
1. The slamming in question took place in March. (Here's a NYT story at the time.) I'm not sure why it's news today. I guess the hook for the story is that the decision "has become the talk of the Holocaust restitution community."
2. I'm not sure why Judge Rakoff was so upset with the museums. The settlement, including a confidentiality provision, was reached on Feb. 2, the morning the trial was to have started. Judge Rakoff's written order notes that on March 6 he "directed the parties to submit letters stating whether they object to making the settlement agreement public and setting forth the grounds for any such objection. By letter that same day, the Museums informed the Court that they no longer had an objection to making the settlement terms public and that they were prepared to waive the confidentiality provision." It was the plaintiffs who refused.
3. It's worth pointing out that, despite the slamming, the Court left the confidentiality in place. As the order noted, "the Second Circuit strongly endorses the confidentiality of settlement agreements in virtually all cases." Allowing parties' to keep their agreements confidential encourages settlement, and there is a public interest in settlement of litigation.
4. Last, it's not clear why Judge Rakoff thinks it would be in the public interest to make this settlement (more) public. We already know the museums paid some money to the plaintiffs, and we also know the paintings will remain with the museums. Why do we need to know how much money the plaintiffs got? Why is that a matter of great public interest?
More on the Picasso Sketchbook Theft
Art Theft Central's Mark Durney on the recent theft from the Picasso Museum in Paris: "Its astonishing that given the desirability of works of art by Picasso and the tremendous sums of money the Picasso Museum has spent on sketches in the past that they would not have better security measures implemented protecting such a significant part of their collection." He's also not convinced the sketchbook would be "as difficult to sell as many have been led to believe."
Change of Heart
Back in December, U.S. District Court Judge A. Howard Matz said Clint Arthur's action against Louis Vuitton "appears to be a misguided lawsuit."
In April, a California state court judge dismissed a similar suit, calling it a "prime example" of "opportuntistic litigation."
Yesterday Matz decided that appearances can be deceiving and denied Louis Vuitton's motion to dismiss. The LAT's Mike Boehm has the details.
In April, a California state court judge dismissed a similar suit, calling it a "prime example" of "opportuntistic litigation."
Yesterday Matz decided that appearances can be deceiving and denied Louis Vuitton's motion to dismiss. The LAT's Mike Boehm has the details.
Wednesday, June 17, 2009
Kinkade Loss
The San Francisco Chronicle: "A federal appeals court has some dark news for the self-described 'Painter of Light,' Thomas Kinkade - it has restored an arbitration panel's $2.1 million award to two former gallery owners who say Kinkade's company duped them into investing their life's savings in a doomed enterprise. A federal judge in San Francisco overturned the [arbitration] panel's decision in 2007 .... On Tuesday, however, the Ninth U.S. Circuit Court of Appeals said the company 'received a fair hearing from the arbitrators' and must pay $860,000 in damages to the former gallery owners ... and more than $1.2 million in attorneys' fees and arbitration expenses."
A Primer from the Virginia Supreme Court on the Invocation of Counsel
Every so often the Supreme Court of Virginia seems to adopt a theme across a couple of cases. An example of this was in 2007 when the Court took a couple cases on Obstruction of Justice and significantly altered what the crime of Obstruction is. This time the Court, in two decisions authored by Justice Lemons, has outlined the parameters of the assertion of the right to counsel under Miranda.
I've not had a recent argument which involved assertion of the right to counsel, so I can't claim to be up on the nuances of this area. However, my general impression has been that up to a couple years ago Virginia appellate courts were very hostile to Miranda and required a very clear, unequivocal invocation of the right to have counsel present during questioning. Then things seem to have begun to get mixed up and I recall reading a case or two that seemed to start backing away from the courts' prior position. This month's decisions seem to be the Supreme Court's attempt to remove as much ambiguity as possible.
The question in Zektaw v. Commonwealth (No. 081738), the Court was to decide whether "Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?" during a custodial interrogation is a clear, unambiguous and unequivocal invocation of the right to counsel recognizable as such to a reasonable police officer. The crux of the matter is whether "I'd really like to" expresses a preference or is an attempt to assert the right. Both the trial court and the court of appeals ruled that it was not an assertion. The Virginia Supreme Court disagreed.
The decision deals quickly with the preliminary matter of whether the defense counsel waived the objection to the introduction of the statement by asking questions about the statement on cross. The Court states that questioning during cross or introducing a rebuttal witness does not waive the objection. Only introducing new evidence of the same character waives the objection.
Then the decision gets to the meat of the matter. The Court goes through an exhaustive list of Virginia cases in which it has ruled upon possible assertions of the right to counsel; it bolsters this discussion with cases from the federal supreme court. Following this, it characterizes the statements which do not assert the right to counsel as follows:
While the statement may look somewhat ambiguous - after all, it's not an assertion such as "I'm taking the 5th" or "I will not talk to you without my lawyer" - the US supreme court had already set precedent in this when it found "Uh, yeah. I’d like to do that" (in reference to the right to counsel just explained) not to be ambiguous. Smith v. Illinois, (No. 84-5332).In fact, the Virginia Supreme Court could have made this an extremely short opinion: Per Smith v. Illinois this matter is reversed.
In the second case, Commonwealth v. Ferguson (No. 081645), the defendant was more savvy and put his assertion of the right to counsel a little more clearly: "Nah, I want a lawyer, you know what I’m saying?"
Despite the clear invocation of the right to counsel, Officer One continues to interrogate him without getting a response. Eventually, Officer One "concludes the interview", turns off the tape recorder, and leaves the defendant in the room with Officer Two. Officer Two sits in silence with the defendant and, after a few minutes, the defendant begins to talk to Officer Two and eventually, after Officer Two reads the defendant his Miranda rights again, the defendant makes incriminatory statements.
The Commonwealth asserts that these were two separate interviews and that the second one was initiated by the defendant. Thus, while the first interview was unconstitutional, the second was cleared of any tint because it was a conversation by choice of the defendant.
The Supreme Court rejects this interpretation of the situation:
I've not had a recent argument which involved assertion of the right to counsel, so I can't claim to be up on the nuances of this area. However, my general impression has been that up to a couple years ago Virginia appellate courts were very hostile to Miranda and required a very clear, unequivocal invocation of the right to have counsel present during questioning. Then things seem to have begun to get mixed up and I recall reading a case or two that seemed to start backing away from the courts' prior position. This month's decisions seem to be the Supreme Court's attempt to remove as much ambiguity as possible.
The question in Zektaw v. Commonwealth (No. 081738), the Court was to decide whether "Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?" during a custodial interrogation is a clear, unambiguous and unequivocal invocation of the right to counsel recognizable as such to a reasonable police officer. The crux of the matter is whether "I'd really like to" expresses a preference or is an attempt to assert the right. Both the trial court and the court of appeals ruled that it was not an assertion. The Virginia Supreme Court disagreed.
The decision deals quickly with the preliminary matter of whether the defense counsel waived the objection to the introduction of the statement by asking questions about the statement on cross. The Court states that questioning during cross or introducing a rebuttal witness does not waive the objection. Only introducing new evidence of the same character waives the objection.
Then the decision gets to the meat of the matter. The Court goes through an exhaustive list of Virginia cases in which it has ruled upon possible assertions of the right to counsel; it bolsters this discussion with cases from the federal supreme court. Following this, it characterizes the statements which do not assert the right to counsel as follows:
1) An attempt to clarify the right - "Can I have an attorney here?"After having gone through all of these, the Court decides that "I'd really like to talk to an attorney" doesn't fit under any of these and is an unambiguous assertion of the right.
2) Asking for someone else to be present, but not specifically asking for an attorney.
3) The defendant stating he might want an attorney.
4) The defendant questioning the wisdom of going forward without an attorney - "Maybe I shouldn't talk to you without my attorney."
While the statement may look somewhat ambiguous - after all, it's not an assertion such as "I'm taking the 5th" or "I will not talk to you without my lawyer" - the US supreme court had already set precedent in this when it found "Uh, yeah. I’d like to do that" (in reference to the right to counsel just explained) not to be ambiguous. Smith v. Illinois, (No. 84-5332).In fact, the Virginia Supreme Court could have made this an extremely short opinion: Per Smith v. Illinois this matter is reversed.
In the second case, Commonwealth v. Ferguson (No. 081645), the defendant was more savvy and put his assertion of the right to counsel a little more clearly: "Nah, I want a lawyer, you know what I’m saying?"
Despite the clear invocation of the right to counsel, Officer One continues to interrogate him without getting a response. Eventually, Officer One "concludes the interview", turns off the tape recorder, and leaves the defendant in the room with Officer Two. Officer Two sits in silence with the defendant and, after a few minutes, the defendant begins to talk to Officer Two and eventually, after Officer Two reads the defendant his Miranda rights again, the defendant makes incriminatory statements.
The Commonwealth asserts that these were two separate interviews and that the second one was initiated by the defendant. Thus, while the first interview was unconstitutional, the second was cleared of any tint because it was a conversation by choice of the defendant.
The Supreme Court rejects this interpretation of the situation:
Whatever the significance of Ferguson’s comments that broke the silence, they were the product of the coercive interrogation and environment created by police. Surely, police may not use the product of such techniques as proof of a voluntary reinitiation of communication and subsequent waiver of the right to counsel.No bright line here; all of these cases are to be decided on totality of their facts.
. . .
Under the totality of the circumstances, we hold that this encounter was one continuous custodial interrogation conducted in such a manner as to deliberately disregard a clear, unambiguous and unequivocal invocation of the right to counsel and coerce Ferguson to incriminate himself.
Tuesday, June 16, 2009
"Once it's accessioned into the collection, it cannot be deaccessioned unless it does not fit the museum's defined mission" (UPDATED)
Art in America's Stephanie Cash interviews NY Assemblyman Richard Brodsky about the Brodsky Bill.
UPDATE: Picking up on Brodsky's remark that "if we don't do this, there will be institutions that cannibalize their collections in order to stay open, and you'll end up with paintings being sold to keep the doors open, and eventually institutions with open doors and no paintings," the Deaccessioning Blog says: "I suppose Mr. Brodsky would rather have paintings sitting in open air and beneath falling rain due to a forced eviction."
UPDATE: Picking up on Brodsky's remark that "if we don't do this, there will be institutions that cannibalize their collections in order to stay open, and you'll end up with paintings being sold to keep the doors open, and eventually institutions with open doors and no paintings," the Deaccessioning Blog says: "I suppose Mr. Brodsky would rather have paintings sitting in open air and beneath falling rain due to a forced eviction."
Monday, June 15, 2009
"Frequently these things are less than black and white" (UPDATED)
A lot of people seem very bothered by the news that the Orange County Museum of Art recently sold a group of 18 paintings. This time the trouble is not that the sales proceeds are to be used for something other than acquiring more art; rather, it's that the works were sold "to an undisclosed private collector," instead of at auction. There is also a question about whether the museum "got a good price for the works sold."
The AAMD is okay with the transaction. Its executive director says that "frequently these things are less than black and white" and that a private sale to a collector "isn’t in that level of egregious behavior" and "could easily be a very legitimate decision."
Two quick comments:
1. Does anybody know what the numbers are on deaccessioned works sold at auction vs. those sold privately? I could be wrong, but it certainly doesn't strike me as unprecedented for a museum to sell a work privately. Is there a new norm that museums must always sell at auction?
2. If the works were sold for less than full value, then that's another story. From Marie Malaro's A Legal Primer on Managing Museum Collections (2d ed. p. 227):
"Private sales, although not wrong per se, are more vulnerable to accusations of favoritism or inept bargaining by the museum. See, for instance, the complaint in Lefkowitz v. Kan, Index No. 40082/78 (N.Y. Sup. Ct. , N.Y. County, Jan. 3, 1978). (Kan, a museum curator, deaccessioned and sold certain museum objects to a dealer. Kan also collected personally and did business with the same dealer. The attorney general charged Kan with violation his fiduciary duties by not obtaining the best price for museum objects so that Kan could benefit in his personal transactions with the dealer. The case was settled in January 1983.) See M. Brenson, 'Auctions: The Museum Connection,' New York Times C17 (Jan. 6, 1984), for a discussion of disposal routes used by New York City art museums. Private sales to employees and trustees should be avoided because hey raise ethical, if not legal, problems."
UPDATE: In a follow-up story in the LAT, the director of the museum "confirm[s]" that "the buyer has had no previous contact with the museum as a past donor, supporter, board member or member of a committee of the museum. This was very important to ensure an arm's-length transaction and keep within ethical guidelines."
The AAMD is okay with the transaction. Its executive director says that "frequently these things are less than black and white" and that a private sale to a collector "isn’t in that level of egregious behavior" and "could easily be a very legitimate decision."
Two quick comments:
1. Does anybody know what the numbers are on deaccessioned works sold at auction vs. those sold privately? I could be wrong, but it certainly doesn't strike me as unprecedented for a museum to sell a work privately. Is there a new norm that museums must always sell at auction?
2. If the works were sold for less than full value, then that's another story. From Marie Malaro's A Legal Primer on Managing Museum Collections (2d ed. p. 227):
"Private sales, although not wrong per se, are more vulnerable to accusations of favoritism or inept bargaining by the museum. See, for instance, the complaint in Lefkowitz v. Kan, Index No. 40082/78 (N.Y. Sup. Ct. , N.Y. County, Jan. 3, 1978). (Kan, a museum curator, deaccessioned and sold certain museum objects to a dealer. Kan also collected personally and did business with the same dealer. The attorney general charged Kan with violation his fiduciary duties by not obtaining the best price for museum objects so that Kan could benefit in his personal transactions with the dealer. The case was settled in January 1983.) See M. Brenson, 'Auctions: The Museum Connection,' New York Times C17 (Jan. 6, 1984), for a discussion of disposal routes used by New York City art museums. Private sales to employees and trustees should be avoided because hey raise ethical, if not legal, problems."
UPDATE: In a follow-up story in the LAT, the director of the museum "confirm[s]" that "the buyer has had no previous contact with the museum as a past donor, supporter, board member or member of a committee of the museum. This was very important to ensure an arm's-length transaction and keep within ethical guidelines."
"We are all reviewing what we are doing and asking are we doing enough"
Friday, June 12, 2009
"Well, perhaps no retirement account, but at least the faculty and staff will have an art collection!"
The Deaccessioning Blog listens to a podcast interview with Jonathan Lee, chair of The Rose Art Museum's Board of Directors, and says:
"When asked if there are any situations in which selling of artworks by a museum are warranted, Lee retreats into a familiar emotional response lacking any substantive rationale. 'It's not allowed in the museum world' and 'it goes against the ethics of the art museum world,' and 'as soon as they sell one of these paintings and scoop the cash they will be shuned' pretty much sum up his reasoning."
"When asked if there are any situations in which selling of artworks by a museum are warranted, Lee retreats into a familiar emotional response lacking any substantive rationale. 'It's not allowed in the museum world' and 'it goes against the ethics of the art museum world,' and 'as soon as they sell one of these paintings and scoop the cash they will be shuned' pretty much sum up his reasoning."
Thursday, June 11, 2009
Security
Ulrich Boser on the Holocaust Museum shooting and museum security: "Museums are, after all, museums. They suffer from a Catch 22. On one side, they have to show their treasures. On the other side, they have to protect them. ... Keep in mind that a museum can't pat down people before they come inside. Ultimately, if people want to kill and they have access to weapons, it's hard to defend oneself. Not impossible. But very hard."
Whitehead v. Commonwealth, No. 080775The Virginia Supreme Court Makes a Major Change in the Law of Appeals
It has been long accepted in Virginia that while the losing party in a criminal case (usually the offender) is limited to arguing the objections made at trial, the party fighting for affirmation could scour the record and argue any issue which would support its position. Not any more.
On 04 June 2009, the Supreme Court of Virginia decided Whitehead v. Commonwealth. Much of the decision is a fairly standard insufficiency of the evidence decision. Then the Court, in a major change which it treats as though it were just following precedent, rejects the ability of the government to raise new arguments during the appeal:
On the other hand, I can remember losing an appeal when I was doing defense work because of something which wasn't raised in the trial court. It looked like a legitimate argument in the appellate court because the appellate court didn't understand the reality of the trial court from which the appeal had been granted. The trial judge, who did understand the realities of that jurisdiction, would have handled the same argument in a manner which I'm certain would have foreclosed the argument which allowed the AG to win the appeal.
It'll be interesting to see if attorneys actually pick up on this change or if they'll keep right on doing it the way they always have, without noticing the law has changed. The language I quoted above isn't prominent at the beginning of the opinion and a head note would probably just state this case is about sufficiency of the evidence in a receiving stolen property case. Sometimes, it's interesting how blind the legal community can be to changes like this when they happen.
On 04 June 2009, the Supreme Court of Virginia decided Whitehead v. Commonwealth. Much of the decision is a fairly standard insufficiency of the evidence decision. Then the Court, in a major change which it treats as though it were just following precedent, rejects the ability of the government to raise new arguments during the appeal:
It is true that "[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground." However, cases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not "proper cases" for the application of the doctrine. This principle applies in criminal as well as civil cases.This is going to make the job of lawyers in the Attorney General's office much harder. Per the nature of the system, defense attorneys know to raise issues (and objections) in order to preserve them for appeals. On the other hand, prosecutors are neither trained nor prepared to do the same thing. Consider if the defense attorney researches and makes an objection to the entry of the axe as evidence in the Pitcairn axe murderer trial. He chooses his best argument and springs it in the middle of the case. Let's say there are 4 possible reasons that the axe should remain in evidence. The strongest is the 4th. When the prosecutor states reason number two the judge agrees and overrules the objection. How many prosecutors have you seen go on to put the other 2 reasons into the record? How many trial judges are going to tolerate such a thing? That's what the Supreme Court has ruled that he must do in order to preserve those rationales for the appeal.
. . .
Because this argument was not made at trial, the Court of Appeals erred when it held that the evidence provided this additional rationale to support Whitehead’s convictions.
. . .
The constructive possession theory was not argued in the trial court or the Court of Appeals. Likewise, the “aiding in concealing” argument was not made in the trial court or the Court of Appeals; nonetheless, the Court of Appeals utilized the theory as a basis for its judgment. The concealment argument is made by the Commonwealth for the first time on appeal in this Court.
. . .
We ... will not consider the constructive possession or concealment theories advanced for the first time on appeal.
On the other hand, I can remember losing an appeal when I was doing defense work because of something which wasn't raised in the trial court. It looked like a legitimate argument in the appellate court because the appellate court didn't understand the reality of the trial court from which the appeal had been granted. The trial judge, who did understand the realities of that jurisdiction, would have handled the same argument in a manner which I'm certain would have foreclosed the argument which allowed the AG to win the appeal.
It'll be interesting to see if attorneys actually pick up on this change or if they'll keep right on doing it the way they always have, without noticing the law has changed. The language I quoted above isn't prominent at the beginning of the opinion and a head note would probably just state this case is about sufficiency of the evidence in a receiving stolen property case. Sometimes, it's interesting how blind the legal community can be to changes like this when they happen.
Wednesday, June 10, 2009
"The Childe Hassam transaction is the top count in the indictment"
The latest on the Brooke Astor trial, from the New York Times.
Tuesday, June 9, 2009
What Would Be the Ideal Way to Choose a Judge?
Monday, on CrimLaw Live, I went over the different ways in which judges are selected: the federal method, the direct election method, the legislative election method, and (quite possibly the worst of all worlds) the Missouri method. I've been mulling it over and I think I've come up with what I think would be the perfect system for initial selection of trial judges: ability testing. What do I mean by ability testing? Well, I mean that we actually set up a testing system with three components - a written test, peer evaluation, and a board - all of which add up to 1000 points and rank candidates.
Initially, the possibility of becoming a judge must be an opt in choice. If an attorney is interested in becoming a judge he should be required to have taken a test similar to a Bar exam within a set period of time prior to the judicial position becoming open (3 to 5 years probably being the best time frame). Tests should be specific to the type of court the candidate wishes to be a judge in; for instance, a candidate in Virginia would have to choose whether to test for Juvenile and Domestic Court, General District Court, or Circuit Court. However, they should cover the breadth of those matters covered under the jurisdiction of the specific court. The test should not be a test for the ability to advocate; it should be an ability to restate the black letter law. This test should max out at 500 points.
Next should be peer evaluation. Members of the Bar who practice in the jurisdiction wherein the candidate would be eligible to become a judge should be confidentially polled as to their perception of the candidate's demeanor, perceived knowledge, and ability to communicate. A series of questions should be asked on something like a 5 point scale per question: 0=absolutely unfit, 1=unfit, 2=do not have enough information to make informed decision about this candidate, 3=average, 4=above average, 5=excellent. These replies should be tallied and averaged and make up a maximum of 250 points.
Finally should come an examination by a group of judges. These judges should not be from the area of the State wherein the attorney practices - preferably not not even from the same half of the State - and should not know the lawyer. This board should probably only take place after it has been determined that there will be a judicial opening. The candidates with the top 5 combined scores should be interviewed and the judges should score the candidate on his demeanor, ability to communicate his ideas, and apparent ability to apply legal knowledge. This should be scored at a maximum of 250 points.
At the end of this process there is a list of attorneys vetted for the judicial position and their levels of qualification: John Smith-874, Kerry Jones-810, Mike Greene-753; Paul Perry-735; & Mary Madre-710. The top scorer could automatically be made the judge or the names of the top 3 could be forwarded to either the Legislature or Governor with a mandate that one of the three be chosen within 30 days or the position defaults to the top scorer.
What's the advantage of all this? First of all, it has the best chance of any system I've seen of guaranteeing that the person elevated to a judicial position is actually qualified for it, both in terms of actual knowledge and the social abilities needed to be an effective trial judge. Second, it actually allows the judiciary to be an independent third branch of government. Every part of this system can and should be operated by the State Supreme Court. The politics involved in local good-ole-boy committee choosing, or a governor choosing or a legislature choosing or a party boss choosing who will be the judge will be pruned away by this system.
Of course, there needs to be some sort of reappointment system. This could be the Missouri "life tenure lite" system wherein the citizens vote "yes" or "no" every so often as to whether to retain a judge. Personally, I think this is a terrible system unlikely to remove the few bad judges who get through the selection process above or who develop a god-complex over the years. I prefer some sort of legislative check. When time comes for reappointment have the House do a simple up or down vote on Juvenile and domestic judges. Have the Senate do up or down votes for general district court judges. For the superior trial court the barrier to removal should be higher, perhaps a down vote by both houses. In any case, should a judge be poor enough that he is removed, he would be barred from the position and the judicial branch would provide a replacement as spelled out above. I think that this would eliminate much of the politics since the legislators would not be able to remove judges to replace them with their buddies or members of the legislators' party. It would give those who have issues with a particular judge a place to go for redress and allow the legislators some input as to how the laws they have promulgated are being enforced (for instance, the Legislature could remove a judge who refuses to enforce the anti-snipe hunting laws).
All-in-all, I think it's a better system for selecting judges than I've seen anywhere. However, I doubt we shall ever see its like.
Initially, the possibility of becoming a judge must be an opt in choice. If an attorney is interested in becoming a judge he should be required to have taken a test similar to a Bar exam within a set period of time prior to the judicial position becoming open (3 to 5 years probably being the best time frame). Tests should be specific to the type of court the candidate wishes to be a judge in; for instance, a candidate in Virginia would have to choose whether to test for Juvenile and Domestic Court, General District Court, or Circuit Court. However, they should cover the breadth of those matters covered under the jurisdiction of the specific court. The test should not be a test for the ability to advocate; it should be an ability to restate the black letter law. This test should max out at 500 points.
Next should be peer evaluation. Members of the Bar who practice in the jurisdiction wherein the candidate would be eligible to become a judge should be confidentially polled as to their perception of the candidate's demeanor, perceived knowledge, and ability to communicate. A series of questions should be asked on something like a 5 point scale per question: 0=absolutely unfit, 1=unfit, 2=do not have enough information to make informed decision about this candidate, 3=average, 4=above average, 5=excellent. These replies should be tallied and averaged and make up a maximum of 250 points.
Finally should come an examination by a group of judges. These judges should not be from the area of the State wherein the attorney practices - preferably not not even from the same half of the State - and should not know the lawyer. This board should probably only take place after it has been determined that there will be a judicial opening. The candidates with the top 5 combined scores should be interviewed and the judges should score the candidate on his demeanor, ability to communicate his ideas, and apparent ability to apply legal knowledge. This should be scored at a maximum of 250 points.
At the end of this process there is a list of attorneys vetted for the judicial position and their levels of qualification: John Smith-874, Kerry Jones-810, Mike Greene-753; Paul Perry-735; & Mary Madre-710. The top scorer could automatically be made the judge or the names of the top 3 could be forwarded to either the Legislature or Governor with a mandate that one of the three be chosen within 30 days or the position defaults to the top scorer.
What's the advantage of all this? First of all, it has the best chance of any system I've seen of guaranteeing that the person elevated to a judicial position is actually qualified for it, both in terms of actual knowledge and the social abilities needed to be an effective trial judge. Second, it actually allows the judiciary to be an independent third branch of government. Every part of this system can and should be operated by the State Supreme Court. The politics involved in local good-ole-boy committee choosing, or a governor choosing or a legislature choosing or a party boss choosing who will be the judge will be pruned away by this system.
Of course, there needs to be some sort of reappointment system. This could be the Missouri "life tenure lite" system wherein the citizens vote "yes" or "no" every so often as to whether to retain a judge. Personally, I think this is a terrible system unlikely to remove the few bad judges who get through the selection process above or who develop a god-complex over the years. I prefer some sort of legislative check. When time comes for reappointment have the House do a simple up or down vote on Juvenile and domestic judges. Have the Senate do up or down votes for general district court judges. For the superior trial court the barrier to removal should be higher, perhaps a down vote by both houses. In any case, should a judge be poor enough that he is removed, he would be barred from the position and the judicial branch would provide a replacement as spelled out above. I think that this would eliminate much of the politics since the legislators would not be able to remove judges to replace them with their buddies or members of the legislators' party. It would give those who have issues with a particular judge a place to go for redress and allow the legislators some input as to how the laws they have promulgated are being enforced (for instance, the Legislature could remove a judge who refuses to enforce the anti-snipe hunting laws).
All-in-all, I think it's a better system for selecting judges than I've seen anywhere. However, I doubt we shall ever see its like.
More Opportunity Cost
The LAT's David Ng: "Eight museum exhibitions you won't be seeing in L.A. anytime soon."
Related post here.
Related post here.
In Contempt
From Courthouse News Service: "The 5th Circuit upheld a civil contempt order against an attorney who helped his client evade an asset freeze by selling a Picasso painting for $431,161."
Sketchbook Stolen (UPDATED)
From BBC News: "A sketchbook of 33 drawings by Pablo Picasso worth about [$11m] has been stolen from a museum in Paris, police have said. The theft from the Picasso Museum was discovered on Tuesday afternoon but the exact time and circumstances have yet to be determined."
UPDATE: More from the New York Times. The Art Marker Monitor has a roundup. Derek Fincham comments.
UPDATE: More from the New York Times. The Art Marker Monitor has a roundup. Derek Fincham comments.
Reviewing My CrimLaw Live Broadcast Last Night
Well, Ustream worked perfectly and streamed like a champ. I had some issues with keeping the broadcast concise and on point (yes, I rambled some) and I think it hurt the points I was trying to make. On the other hand, unlike when I filmed and edited offline it took a lot longer for me because I would reshoot (and reshoot and reshoot) trying to make things perfect and then spend even more time editing it. Livecasting meant it was one and done.
Yes, I am broadcasting in black and white. The reason for this is that I have the curly, energy-saving lights and they make color filming look yellow. I may switch back to folament style lights in the future if I keep doing this.
As of now, I plan to try and do this every Monday at 8 p.m. See ya'll next time.
Yes, I am broadcasting in black and white. The reason for this is that I have the curly, energy-saving lights and they make color filming look yellow. I may switch back to folament style lights in the future if I keep doing this.
As of now, I plan to try and do this every Monday at 8 p.m. See ya'll next time.
Monday, June 8, 2009
"We can't save all our treasures"
Harry Themal -- Delaware News Journal columnist since 1959 -- started out to write "a column deploring the decision by the Wilmington Library to deaccession ... its marvelous portfolio of 14 N. C. Wyeth paintings for 'Robinson Crusoe' and its 20 volumes of Edward Curtis photographs." But his "exploration of how the sales could have been prevented" led him "to the reluctant conclusion" that the decision is "inevitable and correct":
"The sale would provide much needed money for repairs and endowment for the 86-year-old building on Rodney Square; no Santa Claus is around to stop the sale and give the library its needed money."
I wrote about the sale last month here.
"The sale would provide much needed money for repairs and endowment for the 86-year-old building on Rodney Square; no Santa Claus is around to stop the sale and give the library its needed money."
I wrote about the sale last month here.
"Taking photographs of objects or people in plain view is not a crime"
From seattlepi.com:
"The City of Snohomish has settled with a University of Washington fine art professor arrested shortly after she was seen photographing power lines, the ACLU reports. According to a statement from the [ACLU], Shirley Scheier was driving home in October 2005 when Snohomish police stopped her car on state Route 9 and began questioning her about her 'suspicious' photography. ... Police handcuffed and frisked Scheier, placing her in the backseat of a patrol car for about 25 minutes, the ACLU contends. Scheier later sued the city in U.S. District Court, alleging that she was wrongfully detained. On Monday, an ACLU spokesman announced that the suit had been settled for $8,000."
"The City of Snohomish has settled with a University of Washington fine art professor arrested shortly after she was seen photographing power lines, the ACLU reports. According to a statement from the [ACLU], Shirley Scheier was driving home in October 2005 when Snohomish police stopped her car on state Route 9 and began questioning her about her 'suspicious' photography. ... Police handcuffed and frisked Scheier, placing her in the backseat of a patrol car for about 25 minutes, the ACLU contends. Scheier later sued the city in U.S. District Court, alleging that she was wrongfully detained. On Monday, an ACLU spokesman announced that the suit had been settled for $8,000."
A different kind of "fake"
From the New York Times: "A former payroll manager for the Brooklyn Museum stole more than $620,000 from the institution by issuing fake paychecks that were directly deposited into his bank account, according to court papers made public on Thursday. The former employee, Dwight Newton, 40, faces up to 20 years in prison for wire fraud if convicted."
Friday, June 5, 2009
"If deaccessioning does occur, let's hope that we do not have to follow the well-meaning but problematic practices of A6959"
Peter Hirtle has the latest on the Brodsky Bill:
"The good news: I assume in reaction to the concern expressed by museums, zoos, and libraries, the bill governing deaccessioning from museums was pulled from the Ways and Means committee's calendar on Tuesday. I gather that staff from Assemblyman Brodsky's and Senator Serrano's offices have begun discussions with some concerned community representatives. The bad news: An amended version of the bill is circulating in Albany. This bill makes it crystal-clear that it does not just cover museum deaccessioning, but would cover deaccessioning from 'collecting institutions' - meaning libraries, archives, historical societies, zoos, and private foundations."
"The good news: I assume in reaction to the concern expressed by museums, zoos, and libraries, the bill governing deaccessioning from museums was pulled from the Ways and Means committee's calendar on Tuesday. I gather that staff from Assemblyman Brodsky's and Senator Serrano's offices have begun discussions with some concerned community representatives. The bad news: An amended version of the bill is circulating in Albany. This bill makes it crystal-clear that it does not just cover museum deaccessioning, but would cover deaccessioning from 'collecting institutions' - meaning libraries, archives, historical societies, zoos, and private foundations."
"What does the bar owner owe the artist?"
I'm quoted in this story by Jen Graves in The Stranger posing the above question.
Know when to fold 'em
There've been some developments in Gregory Callimanopulos's suit against Christie’s over the reopening of the bidding for a Sam Francis painting last month. I discussed the suit here.
On May 15, the court granted a TRO preventing Christie's from going ahead with the sale to the ultimate buyer (Eli Broad). Callimanopulos's lawyers had argued that "to resolve this dispute the Court may need not look further than the recordings of the auction .... It is clear that these recordings are critical to the determination of this matter -- indeed, they may be dispositive." According to papers filed by Broad, "the recordings of the auction were shown to Callimanopulos, his curator, his assistant, and his numerous lawyers on May 21." The next day Callimanopulos got new lawyers.
On June 2 the court denied Callimanopulos's motion for a preliminary injunction. It notes that it "has reviewed a video of the relevant portion of the Auction. In the video, a woman seated in the front row can be seen raising her paddle to chest-height as [auctioneer] Burge calls 'fair warning' and then raising it above her head as Burge is bringing down the hammer. Burge recognizes the woman's bid a few seconds after striking the hammer." It goes on to say that "under the U.C.C." -- which "the parties agree governs this action" -- "it is clear that while the fall of the hammer concludes a sale, where a bid is made while the hammer is falling, the auctioneer has the discretion to recognize that bid even after the hammer has fallen. ... Here, Burge exercised his discretion and re-opened the bidding, seconds after striking the hammer. The videotape ... confirm[s] that [the competing bidder] raised her paddle as Burge said 'fair warning' and then raised it even higher as he brought down the hammer."
The court then brought the hammer down on Callimanopulos, concluding that he "fails to raise sufficiently serious questions going to the merits to make them a fair ground for litigation, let alone a likelihood of success" (emphasis added).
Callimanopulos is appealing the decision -- his argument now seems to be that "the auctioneer must act in good faith in relying on spotters to reopen the bidding," but in this case he "could not possibly have exercised his discretion in good faith unless the spotters informed him that [the new bidder] made her bid before the hammer fell (otherwise, there would be no basis for the auctioneer to reopen the bid)" -- but it's hard to escape the conclusion that, as Christie's put it in their most recent filing, "undisputed video evidence in this case conclusively demonstrates that another bidder placed a bid for the Artwork prior to the fall of the hammer and therefore there is no question for litigation" (emphasis in the original this time).
Additional coverage from Philip Boroff in Bloomberg and from American Lawyer, which helpfully provides a link to a transcript of the preliminary injunction hearing as well.
On May 15, the court granted a TRO preventing Christie's from going ahead with the sale to the ultimate buyer (Eli Broad). Callimanopulos's lawyers had argued that "to resolve this dispute the Court may need not look further than the recordings of the auction .... It is clear that these recordings are critical to the determination of this matter -- indeed, they may be dispositive." According to papers filed by Broad, "the recordings of the auction were shown to Callimanopulos, his curator, his assistant, and his numerous lawyers on May 21." The next day Callimanopulos got new lawyers.
On June 2 the court denied Callimanopulos's motion for a preliminary injunction. It notes that it "has reviewed a video of the relevant portion of the Auction. In the video, a woman seated in the front row can be seen raising her paddle to chest-height as [auctioneer] Burge calls 'fair warning' and then raising it above her head as Burge is bringing down the hammer. Burge recognizes the woman's bid a few seconds after striking the hammer." It goes on to say that "under the U.C.C." -- which "the parties agree governs this action" -- "it is clear that while the fall of the hammer concludes a sale, where a bid is made while the hammer is falling, the auctioneer has the discretion to recognize that bid even after the hammer has fallen. ... Here, Burge exercised his discretion and re-opened the bidding, seconds after striking the hammer. The videotape ... confirm[s] that [the competing bidder] raised her paddle as Burge said 'fair warning' and then raised it even higher as he brought down the hammer."
The court then brought the hammer down on Callimanopulos, concluding that he "fails to raise sufficiently serious questions going to the merits to make them a fair ground for litigation, let alone a likelihood of success" (emphasis added).
Callimanopulos is appealing the decision -- his argument now seems to be that "the auctioneer must act in good faith in relying on spotters to reopen the bidding," but in this case he "could not possibly have exercised his discretion in good faith unless the spotters informed him that [the new bidder] made her bid before the hammer fell (otherwise, there would be no basis for the auctioneer to reopen the bid)" -- but it's hard to escape the conclusion that, as Christie's put it in their most recent filing, "undisputed video evidence in this case conclusively demonstrates that another bidder placed a bid for the Artwork prior to the fall of the hammer and therefore there is no question for litigation" (emphasis in the original this time).
Additional coverage from Philip Boroff in Bloomberg and from American Lawyer, which helpfully provides a link to a transcript of the preliminary injunction hearing as well.
When choosing law schools, think about the long term ramifications
Check out the featured answer to this ABA Journal Poll. You might want really think before applying to law school about where you want to end up and about the realities of the current job market!
Seriously...law school is demanding and expensive. You might want to consider going to best law school in the area where you actually want to practice, rather than just aiming for the top 20 or 40. You may also consider working while in law school so that you don't have to borrow as much, but I would not recommend this for first year students unless you work a job where you can study as well. When I was in law school, I was able to work at the library and still get some homework done at the same time. I know other law students who worked at campus computer clusters, at the bookstore, or as graduate assistants to undergraduate classes.
Also don't be like me and borrow the max you are allowed to borrow and also work. I would figure how much money you will make with your part-time job and reduce your loan amount by that much. Believe me, you will be thankful that your loan payments are lower when you're out in the "real world" and paying your loans back.
Be smart about where you go to law school, how much you are going to borrow, and managing your money in law school, so that you are not still living like a law student 5 years after you graduate!
Seriously...law school is demanding and expensive. You might want to consider going to best law school in the area where you actually want to practice, rather than just aiming for the top 20 or 40. You may also consider working while in law school so that you don't have to borrow as much, but I would not recommend this for first year students unless you work a job where you can study as well. When I was in law school, I was able to work at the library and still get some homework done at the same time. I know other law students who worked at campus computer clusters, at the bookstore, or as graduate assistants to undergraduate classes.
Also don't be like me and borrow the max you are allowed to borrow and also work. I would figure how much money you will make with your part-time job and reduce your loan amount by that much. Believe me, you will be thankful that your loan payments are lower when you're out in the "real world" and paying your loans back.
Be smart about where you go to law school, how much you are going to borrow, and managing your money in law school, so that you are not still living like a law student 5 years after you graduate!
Thursday, June 4, 2009
Biscuitless
The Deaccessioning Blog notes "at least three other reasons why anti-deaccessionists are wrong."
Relatedly, The Art Newspaper has "identified over 20 important shows that have been axed (or, in a few cases, postponed) later this year or in 2010," which, they add, "almost certainly represents the tip of the iceberg."
It's a question of opportunity cost. As economist Bruno Frey has said, "at a (real) rate of interest of 5 percent per year for instance, a painting held by a museum and worth one million Euros means a steady flow of income of 50,000 Euros forgone each year, i.e. which could have been used in a different way. Thus, the painting under consideration could be 'transformed' into a permanent flow of 50,000 Euros, which could be spent on" -- well, lots of things, including not axing important shows.
One example The Art Newspaper mentions is a Gorky retrospective that had been scheduled for LACMA in June 2010, but has now been canceled.
So maybe it's more important to have that 220th Eakins sitting in storage year after year than it is to have that Gorky show.
But maybe it isn't.
Relatedly, The Art Newspaper has "identified over 20 important shows that have been axed (or, in a few cases, postponed) later this year or in 2010," which, they add, "almost certainly represents the tip of the iceberg."
It's a question of opportunity cost. As economist Bruno Frey has said, "at a (real) rate of interest of 5 percent per year for instance, a painting held by a museum and worth one million Euros means a steady flow of income of 50,000 Euros forgone each year, i.e. which could have been used in a different way. Thus, the painting under consideration could be 'transformed' into a permanent flow of 50,000 Euros, which could be spent on" -- well, lots of things, including not axing important shows.
One example The Art Newspaper mentions is a Gorky retrospective that had been scheduled for LACMA in June 2010, but has now been canceled.
So maybe it's more important to have that 220th Eakins sitting in storage year after year than it is to have that Gorky show.
But maybe it isn't.
More on the Wildflower Suit
The Art Newspaper's Martha Lufkin on Chapman Kelley's 7th Circuit VARA appeal, discussed here last month.
"We are united in our belief that the public interest will be best served if the proposed measure is tabled at this time"
A group of nonprofits -- including MoMA, the Guggenheim, the Whitney, and the Met -- urge Assemblyman Brodsky to slow down. You can read their (brief) letter here (courtesy of The Deaccessioning Blog).
Wednesday, June 3, 2009
"Many art theft cases take years, decades, even more than a century, to crack" (UPDATED)
Ulrich Boser, author of a recent book on the Gardner theft, has a good piece in U.S. News on art crime more generally. It focuses mainly on the FBI's art theft team, but William Kingsland, Melvyn Kohn, and Dr. No all make appearances.
UPDATE: Boser is blogging here.
UPDATE: Boser is blogging here.
"This lack of transparency translates into the potential for illegal transactions"
The ARCAblog is running a series of papers by students in Noah Charney's art crime class at Yale. Here's Elizabeth Sebesky, on How Lending Fuels Art Crime.
"Wark said prosecutors are still going forward with the other charges"
Boston prosecutors have dropped 13 (or 14, depending on who you ask) vandalism charges against Shepard Fairey. Story here. "Prosecutors said Fairey still faces charges for 13 similar offenses, 10 in Boston Municipal Court’s Central Division and another three in the Brighton Division. The charges stem from an incident on Sept. 16, 2000 where Fairey allegedly pasted a poster onto a Brighton Avenue electrical box."
Tuesday, June 2, 2009
"Too Important to Decide Immediately"
Ed Winkleman "want[s] to know ... where [Supreme Court nominee Sonia Sotomayor] comes down on issues of free speech and in particular where that meets art." He discusses one case, "involv[ing] a sex offender on parole who was found with porn (a violation of his parole terms)."
Here's another data point, from 1999:
"The Giuliani administration won a round yesterday in its legal fight to keep a
"Responding to an emergency appeal by the city, the United States Court of Appeals for the Second Circuit issued a temporary stay of a
"The stay, issued by a three-judge panel convened for an unusual Saturday session, effectively put Mr. Tunick's plan to photograph the 100 nude people on hold ....
"The ruling superseded Friday's decision by Judge Harold Baer Jr. of United States District Court in
Tunick eventually prevailed, though Sotomayor was not on the Second Circuit panel that ended up deciding the case.
ALR on a roll
Last week it was some Egyptian artifacts. Now, "U.S. Immigration and Customs Enforcement (ICE) today seized a Pompeii wall panel fresco from a Manhattan auction house that was reported stolen in Italy 12 years ago. The fresco panel, which was the subject of an international search by INTERPOL, was located by the Art Loss Register of New York and brought to the attention of ICE and Italian Authorities."
Derek Fincham says the stories highlight the fact that "the Art Loss Register—though not a cure-all for what ails the antiquities trade—is an invaluable tool for the recovery of stolen objects so long as they have been documented and reported. ... Though it cannot help aid the recovery of antiquities which have never been documented, it can help in the recovery of stolen antiquities which have been documented and reported missing, underscoring the need I think for museums and nations of origin to do a better job documenting and reporting the stores of objects which they currently have."
Derek Fincham says the stories highlight the fact that "the Art Loss Register—though not a cure-all for what ails the antiquities trade—is an invaluable tool for the recovery of stolen objects so long as they have been documented and reported. ... Though it cannot help aid the recovery of antiquities which have never been documented, it can help in the recovery of stolen antiquities which have been documented and reported missing, underscoring the need I think for museums and nations of origin to do a better job documenting and reporting the stores of objects which they currently have."
Monday, June 1, 2009
"While ostensibly about museums, the law could have a major impact on how libraries function"
Cornell's Peter Hirtle is concerned with the potential impact of the Brodsky bill on libraries and archives:
"The problem is that while the bill discusses the issue surrounding collecting in museums, it defines museums so broadly that most libraries and archives would fall under its sway. Here is the definition:
"The problem is that while the bill discusses the issue surrounding collecting in museums, it defines museums so broadly that most libraries and archives would fall under its sway. Here is the definition:
'MUSEUM' means any institution having collecting as a stated purpose in its charter, certificate of incorporation, or other organizing documents, or owning or holding collections, or intending to own or hold collections that is a governmental entity, education corporation, not-for-profit corporation, or charitable trust.
"Since almost every library in the state owns or holds collections, for the purposes of the law they would be museums. The law would sharply limit their ability to dispose of any material .... [I]nstead of throwing unwanted items into the trash or putting them in the local library book sale, a library would first have to offer the material to other 'museums' in New York state and then the rest of the country. Proceeds from any sale could only be used to support further acquisitions."
Second Try
From the LA Times Culture Monster blog: "Frank Romero, a noted muralist and pioneering Chicano painter, is suing Caltrans for painting over a mural he created along the Hollywood Freeway downtown in conjunction with the 1984 Olympics. ... Romero's suit, filed Thursday in Los Angeles Superior Court, contends that sometime after June 1, 2007, a Caltrans work crew painted over his 102-foot-long, 20-foot-high mural, 'Going to the Olympics,' erasing it from a wall at Alameda Street."
A similar federal lawsuit by Romero (mentioned here back in December) was recently dismissed, on sovereign immunity grounds.
A similar federal lawsuit by Romero (mentioned here back in December) was recently dismissed, on sovereign immunity grounds.
Kokoschka Decision
The New York Times: "A Massachusetts judge has ruled that the Museum of Fine Arts, Boston, is the rightful owner of a 1913 Oskar Kokoschka painting being sought by a woman who said it was sold under duress during the Nazi occupation of Austria. In 2008 the museum filed suit to assert its ownership rights to the painting ... after a restitution request by the woman, Claudia Seger-Thomschitz, who said she was an heir to Oskar Reichel, who in 1939 sold the painting to the Viennese art dealer Otto Kallir."
The court held that "the evidence is undisputed that the members of the Reichel family had sufficient knowledge of [the] transfer of the Painting to put them on notice of possible injury long before defendant contacted the MFA" and therefore the three-year statute of limitations under Massachusetts law had expired.
I mentioned the suit back in January 2008 here.
The court held that "the evidence is undisputed that the members of the Reichel family had sufficient knowledge of [the] transfer of the Painting to put them on notice of possible injury long before defendant contacted the MFA" and therefore the three-year statute of limitations under Massachusetts law had expired.
I mentioned the suit back in January 2008 here.
More on the Warhol Decision
Egyptian Artifacts Recovered
"U.S. Immigration and Customs Enforcement recovered seven artifacts of Egyptian origin that were found at a Manhattan auction house. The ... items were stolen from the Bijbels Museum in Amsterdam on July 29, 2007 in the middle of the afternoon. ... The investigation received significant help from the Art Loss Register (ALR) of New York, an organization that maintains a database of stolen works of art. The ALR discovered the artifacts at the Manhattan auction house, which turned the artifacts over to the Register and ICE agents."
Crunch
Richard Lacayo has a good piece in the current Time on how the recession is affecting museums and other arts organizations. The whole thing is worth reading, but some highlights:
- "Endowments have shrunk everywhere, and sizable budget cuts have been the rule at museums in Atlanta, Baltimore, Denver, Detroit, Indianapolis, Los Angeles, Philadelphia and San Diego."
- "In Michigan, where the struggling Detroit Institute of Arts recently laid off 20% of its staff, the 2010 budget proposed by Governor Jennifer Granholm would cut arts funding to exactly nothing."
- "In April the [Art Institute of Chicago] ... announced plans to increase admission for adults from $12 to $18 .... In response, Chicago alderman Edward Burke threatened to end the museum's city-supplied free water. Eventually a compromise was reached: the institute would charge out-of-town visitors the full amount, but Chicagoans would get a $2 discount." (I mentioned this controversy here.)
- The federal stimulus package includes $50 million for the National Endowment for the Arts (NEA). "President Obama has also proposed increasing the NEA budget next year by $6 million, to $161.3 million. ... But at the same time, arts groups are worried about what they see as a serious threat to their donor base: the White House proposal to reduce as much as 20% the tax deduction that higher-income families can take for charitable contributions." (I've mentioned that serious threat a number of times, including here.)
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