"All we really have is our word"

New Mexico's KRQE reports that "a woman who sold two paintings to an Albuquerque art dealer-appraiser for $4,500 later auctioned for $661,000 won a cash settlement in court this week after alleging she had been defrauded." That's a slightly misleading way of putting it: it makes it sound as if the dealer-appraiser bought them at $4,500 and turned around and re-sold them for the $661,000, when, in fact, according to the story, he sold them for $35,000, and they then "passed hands two more times" and eventually sold at auction for the larger figure. The seller sued for fraud and negligence, and the jury "returned a split verdict .... [The dealer-appraiser] was cleared of fraud but found to be negligent and ordered to pay [the seller] nearly $15,000."

"The question is simply why there’s such anger"

An "honest question" from the Art Market Monitor for "the vocal opponents of deaccessioning." (The subject this time is Robin Pogrebin's recent NYT piece on "turnkey" museum exhibitions organized by corporations. Judith Dobrzynski, Ed Winkleman, and Derek Fincham all commented on the story earlier in the week.)

Liberal= Get Tough on Crime Instead of Get Tougher

More on the Peters Gallery Lawsuit

Josh Baer gets a statement from the Gerald Peters Gallery on the lawsuit mentioned here: "This lawsuit appears to be grounded in nothing more than buyers remorse, likely brought about by the economic downturn. Neither the facts nor the law support the claims made. The facts will demonstrate the gallery acted properly." Josh says "this seems like an easy case - either there is a record of an agreement allowing Waitt to rescind/take on approval works or not" (this overlooks the possibility, I think, of a contract having been formed through a course of dealing between the parties), but thinks what's really needed is "a strong arbitration process run by the Art Dealers Association that collectors (or dealers) could take complaints to."

Found (but maybe never lost)

Yesterday, Derek Fincham flagged a story that a Picasso painting "which was looted by an Iraqi soldier during the 1990 invasion of Kuwait has been recovered by Iraqi security forces." Today comes news that maybe it's not a Picasso after all: "The painting has a tag on the back with several misspellings that says it was sold by 'the louvre' to 'the museum of kuwait,' with the words Louvre and Kuwait in lower case. There are also several stamps bearing the name of the Louvre Museum in Paris. But an official with the Louvre Museum said it has never had a Picasso in its collection and does not sell its works because they are government property. ... The London-based Art Loss Registry said it has no record of any paintings missing from the Kuwait National Museum, and no record of this particular painting as missing at all."

No Nudes at the Met

A 26-year-old model was arrested yesterday after posing naked for a photo shoot in the arms and armor room of the Met. She was charged with two crimes: endangering the welfare of a minor and public lewdness. The photographer, Zach Hyman, has not been charged. Full story in the LA Times. The NY Post's coverage, with photos and video, is here.

Let the Wild Rumpus Begin!

The Iowa City Press-Citizen reports that "the University of Iowa has established an envisioning committee to consider options for the future of the UI Museum of Art, the university announced Tuesday."

Derek Fincham sums up the state of play: "So, we have a situation where it is not possible to return the works to the original, flood-prone museum; and paying for a new museum will be difficult."

And he has a thought: "One thing I think the committee should consider is selling a few of the works to another public institution, and using the funds raised to keep much of the art at UI."

How dare he! Perish the thought! Philistine! Repulsive! Stalinesque!

I have a headache already.

"Ruling is a setback for sports artist"

The Tuscaloosa News has the latest in Daniel Moore's lawsuit with the University of Alabama, now in its fifth year and on its fifth judge.

"I won’t let anyone treat me like this" (UPDATED)

Bloomberg has more on the lawsuit by Moscow dealer Gary Tatintsian against Luhring Augustine Gallery, mentioned last week here.

UPDATE: Some thoughts on the story from the Art Market Monitor: "Nobody likes to be treated like they’re second in line."

"Ye gods, man, you're accused of what, making a million and a half bucks by ripping off who, a bunch of nuns?"

In the Maine Antique Digest, David Hewett has the latest twist in the story of the nuns and their $2 million Bouguereau, mentioned earlier here and here.

Wildenstein Dismissal Affirmed

Back in Sept. 2007, I mentioned the dismissal of a state court lawsuit against Guy Wildenstein. The Appellate Division has now affirmed, but, interestingly, two judges wrote separate dissents.

The case concerns an appraisal Wildenstein wrote and which the plaintiff claims overstated the value of the work. The majority affirmed the dismissal because there was no "basis for connecting [the plaintiff] to Wildenstein": "There is no allegation or evidence that Wildenstein even knew of [plaintiff's] existence (by name or anonymously) or that [plaintiff] or any other person would rely upon his opinion to buy the painting."

One dissenter agreed that the claims at law (fraud, fraudulent misrepresentation, negligent misrepresentation, etc.) failed, but thought the equitable claim for unjust enrichment should survive: "There is no requirement that the aggrieved party be in privity with the party enriched at his or her expense."

The other dissenter thought the whole complaint should be reinstated: "Since the record does not establish what the relationships of any of the parties were, or what was known or unknown by any of them, the need for discovery is evident, and the motion to dismiss should be denied."

You can read the opinions here.

"Bartering may be the answer to bail us out of our current crisis" (UPDATED)

Lindsay Pollock points to a "no money art show" this weekend in Chelsea -- Art4Barter. The press release explains: "No works shall be sold for money but rather for services and goods. The exact service or good that the artist requires will be on the label next to their art. For example, if an artist were to ask for dental work or other medical procedures in exchange for their art, or for a studio to work in, etc., it will give the community an opportunity to barter for those items that are missing from the artists' lives."

I would add just a word of warning.

UPDATE: Economist Michael Rushton points out that there was a similar exhibition in Philadelphia in March. A Philadelphia Inquirer story at the time quoted him as follows:

"I see it as not an awfully important thing. The barter in modern times is a bit of a gimmick, really. It's a fairly ineffective way to go about your business. The electrician always had the option of going to an art fair and a gallery and looking for things. . . . All you've done is made things more difficult for obtaining the services."

Rose Update

Brandeis student newspaper The Justice has more on the transfer earlier this month of the Rose lawsuit from the Massachusetts Supreme Court to the (less supreme) probate court.

The University's lawyer, former Massachusetts AG Thomas Reilly, is quoted as saying:

"The Rose Art Museum is open. The plaintiffs were claiming that it's closed; that's simply not true. They were claiming that [there] was a sale of paintings that was imminent; that's simply not true. So there are serious misrepresentations in the complaint, but the bottom line is the Court wouldn't take their case and didn't take their case."

One of the plaintiffs, Jonathan Lee, chairman of the Rose Board of Overseers, "said in an interview that he was not displeased with the court's decision to transfer the case" (one wonders why he bothered filing the suit in the Supreme Court then in the first place).

A case management conference is scheduled for Sept. 1.

III: Limitations on the Ability of a Judge to Alter a Sentence

In Virginia § 19.2-303 gives a judge certain abilities to suspend a felony sentence:

If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.

I've discussed this twice before here and here.

Last week, in Wilson v. Virginia, the Virginia Court of Appeals addressed - yet again - the jurisdiction of trial courts under this statute. Apparently, after all the evidence had been given in the hearing the trial judge, at the defense attorney's prompting, ruled that she did not have jurisdiction to alter the defendant's sentence. The Court of Appeals makes short shrift of this restating "§ 19.2-303 gives trial courts jurisdiction over all felony convictions provided the defendant has not been sent to the Department of Corrections."

A win for the defense? Sort of. As the hearing had already been held before the judge rendered her ruling, the Court of Appeals had an entire record before it upon which to decide whether or not the case should be returned to the trial court for further consideration. Therefore, the Court of Appeals moves forward with a harmless error analysis.

Circumstances in Mitigation

The Court zeroed in on one part of the statute: "circumstances in mitigation of the offense" (something I'd previously said I didn't think would happen - see comments here). However, it's not the most satisfying analysis. The discussing paragraphs meander back and forth in their description of "mitigating circumstances." When the Court discusses Virginia law it has a fairly restrictive interpretation. It quotes Shiflett, defining mitigating circumstances as

[e]vidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the crime.

It then discusses § 19.2-264.4, stating

The "facts in mitigation" identified by the General Assembly share a common thread in that, while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed and may be relevant in sentencing.

This tracks with my previous assertion that mitigation of the offense actually has to be related to the offense.

However, the Court also adds in some ambiguity. Directly after it quotes Shiflett, the Court quotes Black and defines mitigating circumstances without any reference to the offense

a fact or situation that does not bear on the question of the defendant’s guilt, but that is considered by the court in imposing punishment

The Court ends the paragraph with more ambiguity as to exactly what mitigating circumstances are

Put succinctly, the term "facts in mitigation" has no bearing on the actual guilt or innocence of the accused but rather relates only to the degree to which punishment is appropriate.

Nevertheless, I don't think the ambiguity is enough to mask that the Court is stating (collaterally) that Virginia law requires the mitigation to be "of the offense", not "of the sentence." I only wish the Court had been more clear on this point.

Why wasn't it? Well, maybe because the Court wasn't worrying about my concerns over this statute. It was trying to define "mitigation of the offense" in this statute so that it does not include "absolution of guilt / nullification of conviction." I'd previously stated that I thought the purpose of this statute was to allow the judge to consider both perfect and imperfect defenses beyond the trial courts 21 day retention of jurisdiction post-trial, allowing the judge to suspend part or all of a sentence. The Court's interpretation takes perfect defenses off the table. If, 22 days after the trial, the lab realizes it mixed the DNA, or the police realize they got the wrong guy, or the defendant admits to making it all up, the defendant has no relief short of appeal, habeas, or writ of actual innocence. The defendant could spend months, maybe a year+ (or longer, depending on how quickly the courts worked), incarcerated despite knowledge of innocence 22 days after trial.¹ As you might surmise from my reaction above, I'm not a fan of the possible result of this decision. I'm particularly irked by the use of the creation of a statute in 2004 (the writ of actual innocence) to interpret the meaning of a statute passed in 1975 (19.2-303). However, I'm not going to get into a legislative intent argument. If the Court wants to proclaim that the General Assembly intends to keep innocents incarcerated until they can jump through all the hoops of a habeas or writ it can stake that position out all for itself.

I can't even get there textually. Mitigation is defined by Webster as "1: to cause to become less harsh or hostile; 2: to make less severe or painful." Mitigation isn't as specific as absolve or nullify, but it is a word which has the breadth to incorporate both. If guilt is absolved or nullified it definitely lessens the harshness and severity of the defendant's involvement in the offense.

Oh well, in a disagreement between myself and Judge Humphreys over the interpretation of a statute I suspect his actual legal decision will carry the day over my sniping from the sidelines.

Here's where I now understand the rule to be for this section of § 19.2-303: A defendant can only get relief if she presents evidence which mitigates the offense, but does not tend to prove the defendant not guilty. The evidence presented may only lessen the offender's moral culpability and may only address her prior record or the circumstances of the offense.


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¹ Yes, I know that there are probably not quite legitimate means by which a creative trial court could fudge and nullify the conviction, but what if the judge is a scrupulously honest man who won't act against the letter of the law?

Barnes Doc

This year's New York Film Festival lineup includes The Art of the Steal: "Bound to be controversial, this thought-provoking documentary explores the travails of the legendary Barnes collection of art masterworks and the foundation set up to protect it [and] raises vital questions about public vs. private 'ownership' of art." Sept. 29, 9:15 pm.

Virginia Jury Sentencing: Elaborations on the Limits of Defense Evidence

You'll recall that a while back I discussed what the Virginia courts had determined to be relevant evidence a defendant can introduce during a non-capital jury sentencing hearing.

"Evidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the noncapital crime"; in doing so it rejected a "life story" and "testimony about [defendant's] employment, [defendant's] family responsibilities."

This came from the Virginia Supreme Court in Shifflett v. Commonwealth and in the last month and a half the Virginia Court of Appeals has elaborated upon this both directly and indirectly.

Harkening back to Shiflett, in Jones Jr v. Commonwealth, the Court further explores the adoption of the same standard for the introduction of evidence in non-capital jury sentencing hearings as allowed in capital hearings. It lists other evidence which has been rejected: (1) sentence of codefendant; (2) impact of incarceration on defendant mental state; (3) defendant's wife's illness and dependence upon him; (4) impact on family; (5) impact on employment; & (6) family history.¹ The Court adopts § 19.2-264.4(B) and judges the relevance of the evidence through the purposes of punishment: "deterrence, incapacitation, rehabilitation and retribution." In rejecting the appellant's argument it states the acceptable evidence which can be introduced during jury sentencing: (1) circumstances surrounding the offense; (2) history and background of the offender; (3) circumstances tending to explain the offense; (4) criminal record; (5) mental condition; (6) age of the offender; & (7) any other factor in mitigation of the offense.

Of course, the last factor is open ended. Fortunately, just last week the Court of Appeals addressed this in Wilson v. Commonwealth (a decision discussing the limits on a judges's ability to suspend a sentence under 19.2-303). Discussing § 19.2-264.4 the Court states that the "common thread" of the "facts in mitigation" is that "while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed."

So, a defendant cannot introduce extraneous evidence (family, job, &cetera) or evidence which impacts legal culpability.² Only factors which weigh on the morality of the defendant's role in the illegal act are allowed.³


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¹ The Court also cites Pierce v. Commonwealth as finding "testimony that defendant was a "good upstanding citizen" and a "loyal and loving son" relevant", however Pierce had nothing to do with the relevance of that evidence. It found that a defendant can present evidence during a sentencing hearing even if the prosecution has not. Even had it ruled that evidence relevant, Pierce was a Court of Appeals case decided 3 years before the Supreme Court's Shiflett and would seem to have been overruled.

² There is at least one exception to this. Accomodation lessens legal culpability for drug distribution in Virginia and it is supposed to be argued in the jury sentencing phase.

³ Defense evidence pertaining to the defendant's record is also allowed, per Shiflett. This may relate to the morality of the offender's participation in the offense or may simply be allowed as rebuttal to the prosecution's introduction of defendant's prior record.
.

As old as the Eden tree

Lots of stories about fakes in the news lately.

Derek Fincham points to a story in ARTnews "on the slew of Russian avant-garde paintings which were alleged to be fake." One expert is quoted as saying: "There are more fakes than genuine pictures."

Fom the AP: "German police have confiscated hundreds of bronze and plaster statues alleged to be the works of Alberto Giacometti and arrested an art dealer and two others on suspicion of selling the fakes across the globe."

An art dealer in San Francisco has been indicted by a federal grand jury on fraud charges "for allegedly selling fake Joan Miro prints."

The New Mexico state attorney general’s office "entered into a consent decree with Golden Bear Trading Inc. of Santa Fe over selling fake Indian art work."

The Art Newspaper's Jason Edward Kaufman reports that "a collection of Frida Kahlo oil paintings, diaries and archival material that is the subject of a book to be published by Princeton Architectural Press on November 1 has been denounced by scholars as a cache of fakes."

The Guardian's Jonathan Jones says "the fear of fakes does far more harm than forgery itself. This terror that comes with the pride of thinking you know something about art corrodes pleasure, cripples the imagination, blinds you to what might be beautiful. Art is riddled with forgeries, misattributions and dodgy restorations. ... The kind of scholarship that does not add to the excitement of art, but instead makes people terrified that what they are seeing might be inauthentic, is arrogant and destructive."

ARTINFO's Yael Friedman asks: "Why are individuals of means, often extraordinarily savvy in their other financial dealings, so vulnerable when it comes to the acquisition of art? What is it about art that causes buyers to take such leaps of faith, often only to discover that simple research could have easily uncovered any snags or malfeasance?"

"A large number of art attackers appear to be several sandwiches short of the full picnic"

Inspired by "the recent assault on the Mona Lisa with the unlikely weapon of a teacup," Bloomberg's Martin Gayford asks: "Why do people attack art?"

On some legal issues surrounding art vandalism, see here.

"The case is still something of a mystery"

Soon-to-be movie-star Richard Lacayo on the 98th anniversary of The Great Mona Lisa Heist.

The Stealth Brodsky Bill

Lee Rosenbaum reports that the NY State Board of Regents has released its Proposed Permanent Amendment to its deaccessioning rules. Lee summarizes:

"This amendment ... would prohibit use of deaccession proceeds for operating expenses, payment of outstanding debt, or capital expenses (other than those for historic buildings designated as part of an institution's collection). Proceeds cannot be used as loan collateral, and 'collections shall not be capitalized' (i.e., listed as assets on an institution's balance sheet). They can be used only for the acquisition, preservaton, protection or care of collections."

Lee thinks these rules are even "more stringent than the deaccession guidelines of the [AAMD]," but I'm not so sure about that. It seems to me that the exception for "refinement of collections" puts us exactly where the AAMD rules are: sales to buy more art are fine; sales for any other purpose you can think of are not.

Lee is of course thrilled: "I believe that government oversight ... is needed now more than ever, as the temptation to monetize collections for a quick fix becomes increasingly hard to resist. I've lost confidence in the ability of the field to regulate itself. It's time to call in the reinforcements." Cornell's Peter Hirtle offers some thoughts here. My own views on this issue should be pretty clear by now.

Public comments on the proposal are due Sept. 25. The Regents will vote on it at their meeting on Oct. 19-20. If they are adopted, the effective date of the new rules will be Nov. 12.

One interesting feature of this whole debate is that, while it's the Brodsky Bill that gets all the attention, with the exception of the few institutions not chartered by the Board of Regents, these regulations achieve the same effect, but in a much quieter way.

You can read the proposed amendment here. The full text of the current version of the regulations (see §3.27) is here.

Dealer Defamation Suit

Private dealer Paul Rusconi is suing actress Claire Forlani for defamation: "On July 27 of this year, Forlani allegedly ... sent out a mass email claiming Rusconi was selling art work that he knew had been forged 'and that he routinely defrauded his clients by vastly overcharging for the works he sold to them.'"

Rusconi is represented by Kaye Scholer, and seeks "at leat $25 million" in damages.

No Less Than Three

Artnet News notes that Josh Baer might have to start a new newsletter devoted just to legal news:

"His Aug. 18 issue, for instance, featured items on no less than three legal actions: a dispute involving Gateway Computer founder Norman Waitt over some paintings he acquired from Gerald Peters Gallery; a lawsuit by Moscow dealer Gary Tatintsian against Luhring Augustine Gallery over the sale of a dozen George Condo paintings for $4.5 million; and a $5-million suit filed against Christie’s by Georges Marciano and Beverly Hills Antiques accusing the auction house of negligence in the transport of a collection of 400 artworks."

"How could this happen to Annie Leibovitz?"

The Atlantic Wire has a roundup of commentary on the Annie Leibovitz mess.

Live With It

"An art collector claims that in the course of spending $10 million with the Gerald Peters Gallery, they developed a deal in which he could 'live with' art for a while to decide if he wanted to keep it, and if not, he could return it for a refund or 'art of equivalent value.'"

Norman Waitt v. the Gerald Peters Gallery.

Virginia Cases of Interest

I was browsing through the Virginia Court of Appeals and these are the cases which caught my interest:

Brown v. Virginia, No. 1034-08-2 - A video is not subject to the best evidence rule and therefore an individual can testify as to what he saw by watching the tape and the tape need not be introduced. **In a footnote the Court of Appeals acknowledges that it is ruling contrary to federal understanding of this rule of evidence and the rule as applied in 42 States.**

Atkins v. Commonwealth, No. 1502-08-2 - An offender running away from officers and lying as to his name does not qualify as obstruction of justice under Virginia's statute.

Turner v. Commonwealth, No. 1836-07-1 - The Court of Appeals grants a Writ of Actual Innocence based upon a co-defendant taking all the blame after conviction of both. (I think this one is being redecided en banc)

Cooper v. Commonwealth, No. 1392-08-3 - If the Commonwealth gets a continuance because a necessary witness cannot currently testify in view of the fact she is awaiting trial herself it is not prejudicial to the defendant and therefore not an abuse of the trial judge's discretion.

Scott v. Commonwealth No. 1557-07-2 - Ohio found Scott guilty of violating his Virginia probation and sentenced him to serve 6 months of the suspended Virginia sentence in Ohio prison. After serving his time in Ohio, Scott was extradited to Virginia. The Virginia court found Scott guilty of violating his probation and gave him two years. Scott appeals, stating that he'd already been punished for violating his probation by Ohio. The Court of Appeals points out that Ohio didn't have any right to do such a thing and upholds the Virginia sentencing.

Jones, Jr. v. Commonwealth, No. 1802-08-1 - Updates and follows Shiflett.

Wilson v. Commonwealth, No. 1775-08-2 - Elaboration on the ability of a judge to alter a sentence under 19.2-303.

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The last two are cases I'm probably going to post more extensively about - hopefully next week. Wilson in particular interests me. I usually think that Judge Humphreys' opinions are among the best our appellate court puts out, but a quick read of this one bothers me. I'll have to digest it for a bit and post my thoughts later.

Another Blawg Down

And now HOWT is gone too.

Leibovitz Update

This week's New York magazine has a lengthy story on Annie Leibovitz's legal troubles. Felix Salmon says "Art Capital did not ... simply have $24 million lying around when it extended the loan to Leibovitz. As a result, it sold part of the loan to other investors, including Goldman Sachs. And Goldman Sachs, while it’s happy to make lots of money, does not want to be painted as a predatory lender. So Goldman is now Leibovitz’s best hope: if Goldman can buy out Art Capital, it might be able to come to a more Annie-friendly agreement." And the Art Market Monitor adds some thoughts: Art Capital Group Negotiates with Goldman Sachs Through Bloomberg.

Stolen Art Database

Derek Fincham notes that INTERPOL is putting its stolen art database online. Says Derek: "This is a remarkable development in a number of ways, and makes it possible for anyone to search. This means it will be far more difficult for a buyer to claim he or she did not have the resources to check into a work's history."

The Power of Power of Attorney

Can a defendant empower someone to be his attorney thru a power of?

Ask Blonde Justice

If you can't be with the one you love, love the one you're with.

Do these lyrics apply to jobs? If you can't get your dream job out of law school or if you are currently not in your dream job or even just a job you like, should you just consider yourself lucky and blessed for having a job and suck it up or should you continue your search for "the one"? I think if you dread going to work every day, you won't be a productive worker, so you should "love the one you're with" while keeping your eye out for other options. I also came across this article regarding job satisfaction.


Any thoughts?

Finding Other Law Grads Gainfully Employed

So, I'm puttering around the web trying to find something worth blawging about. The federal supreme court isn't going to be putting out anything interesting for a while. The most interesting case that the Virginia court of appeals decided last week can be boiled down to one phrase: No matter how poor the case against you was and the number of errors made you don't get to appeal if you don't object and make the appropriate motions to strike the evidence. Nothing earth shattering there; the court of appeals has probably said as much 100 times. One of the guys in my office wants me to write about Virginia Supreme Court Rule 7C:5(f), but I just can't see too many of ya'll being interested in the vagaries of misdemeanor discovery rules in Virginia. Besides, if I research and write that post I either have to take the side of a person in my office whom I know reads this blawg or a judge whom I know reads this blawg.

Then I trip across an entry in the VLW blog which points to a law classmate (Chuck James) of mine's involvement in defending a sheriff who is being prosecuted by the federal government. Chuck is quoted as making the dreaded "green beans with spaghetti" argument. For the record, I agree with Chuck that they don't go together, but I must admit that didn't stop my high school from serving such a travesty against the gods of taste (actually, it was usually worse: lima beans and canned spaghetti). Still, the rejoinder made by the federal prosecutor has a pretty nasty flaw: "If you’re trying to get youngsters to eat green vegetables spaghetti and green beans DO go together."

Wait. Wait a sec . . . Did he just say "If you're trying to convict on weak charges they should be mixed with the strong ones so the jury will just convict on everything"? Arrrggg. That's got to be a statement he wished he could have back. A better prosecutorial argument (if we must stick to a pasta theme) would have been: "What we have here, judge, is a spaghetti dinner. There are no green beans here. What the defense is trying to do is separate the pasta, and the sauce, and the meatballs, and the parmesan cheese. He's trying to make it unrecognizable for the dinner it is."

Of course, Tom Bondurant was in court commenting off-the-cuff on an argument he had just heard. I'm sitting comfortably in my kitchen drinking a diet pepsi as I compose my answer. Were my circumstances switched with the top-dog federal criminal prosecutor in the Western District, I'm not certain I'd have done better (and he'd probably be real confused as to why he was in my kitchen).

Anyway, for those of you who don't know him, Chuck is the first gentleman in this pack of lawyers walking into the courthouse.



It's a terrible picture; here's the news video it came from.

Anyway, it's good to see someone from my class involved in an interesting case. Since I'm now on the side of the angels, I cannot wish him good luck at trial, but I doubt he needs my luck behind him anyway. :-0

"Where do you draw the line between critique or parody and outright exploitation?"

In the NYT Week in Review section today, Charles McGrath discusses the legal issues surrounding literary prequels and sequels, including the Salinger case currently on appeal to the Second Circuit:

"Mr. Salinger, who is 90 and went all the way to the United States Supreme Court in the late 1980s to stop the biographer Ian Hamilton from quoting from his work, has just won another legal battle, halting the publication of '60 Years Later: Coming Through the Rye,' a sequel to 'The Catcher in the Rye,' by Fredrik Colting, a Swede who for some reason writes under the name J. D. California. Most accounts of Mr. Colting’s book make it sound pretty awful: Holden Caulfield, now in his 70s and stricken with urological problems, escapes from a nursing home and reunites with his sister Phoebe, who is apparently suffering from dementia. ... But Mr. Colting’s book has nevertheless become a literary cause célèbre, with a number of legal experts ... seeking to overturn the judge’s decision. The argument is that the Colting text is 'transformative': that instead of being a mere rip-off, it adds something original and substantive to Mr. Salinger’s version."

"The dispute raises questions about the obligation of a state government with finite resources to uphold the artistic vision of a public memorial"

Sergio Muñoz Sarmiento spots a threatened VARA suit in Washington State involving a World War II memorial sculpture. According to a local news report, artist Simon Kogan "says that overaggressive cleaning in May 2007 damaged the memorial .... He has demanded that the state agency fix the damage or he will sue."

On that way of framing the issue, one problem Kogan faces under VARA is section 106A(c)(2): "The modification of a work of visual art which is the result of conservation ... is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence."

Around the Blawgs

1) Skelly is gone. :`(

2) And so is Feddie.

3) Scott's still baiting lawprofs, making fun of marketers, and telling them dang worthless kids to get off his lawn and go work for a living.

4) Mark is slowly unfolding his "How to treat a jury" exposition.

5) How loud do you have to yawn to be found in contempt?

6) You're liable if you call the police during a robbery and someone is killed in the ensuing shootout?

7) I'm not sure that allowing 18 year olds to drink will discourage "binge" drinking - especially since "binge" drinking has been redefined by prohibitionists from a multi-day bender to a fairly normal 5 drinks (4 if you're female) - but here's an interesting post about whether the federal blackmail requiring the drinking age to be 21 might be unconstitutional.

8) Windy wants you to support a Feminazi scumbag.

9) Who needs permission for a DUI blood test? In Kentucky you just wait until they're asleep . . .

10) Yep, California, the land that pioneered marijuana hang-nail therapy. (You know it's bad when NPR is calling them out)

Roerich Return (UPDATED)

Art Theft Central's Mark Durney breaks the news that one of the two works recently stolen from the Nicholas Roerich Museum was returned, in an "ordinary yellow, padded envelope, with a Brooklyn return address."

UPDATE: More from Durney: "From my exchanges with a museum representative, I would describe them as cautiously optimistic for the return of the [second work]."

Lloyd Webber Dismissal Affirmed

The Appellate Division has affirmed the dismissal, on standing grounds, of a lawsuit against the Andrew Lloyd Webber Art Foundation by a man who claimed his great-uncle was forced by the Nazis to sell a Picasso painting now owned by the foundation. I discussed the lower court decision here. Am Law Litigation Daily's Alison Frankel has a good summary:

"Under New York law, the appellate division opinion says, Schoeps would have had to show that he had been appointed the personal representative of his great-uncle's estate. Instead, the record showed only that he was one of several heirs .... That's quite a different result than what Schoeps ... achieved in similar litigation [before Manhattan federal district court judge Jed Rakoff] with the Museum of Modern Art and the Guggenheim Museum. The state appellate court expressly rejected Rakoff's reasoning on Schoeps's standing."

"Once again, he insisted he favors limiting charitable deductions for high earners, but admitted Congress opposes it."

Joan Walsh at Salon.com.

Joe Friday on the Drug War

Fractional Gift News

The Wall Street Journal reports that "reacting to museums' complaints of sharp declines in art donations, a bill announced Friday by Sen. Charles Schumer ... could revive the practice of so-called fractional gifts."

Some brief background is probably in order. The Pension Protection Act of 2006 drastically changed the rules applicable to fractional gifts -- essentially bringing about an end to fractional giving. The most serious problem was what I referred to as the "mismatch problem": if the work appreciated in value between the time of the initial gift and a subsequent gift, the excess value of the subsequent gift would have been subject to gift or estate tax. In early 2008 technical corrections were enacted fixing the mismatch problem, but, as I noted at the time:

"[The technical corrections] do not, however, change the requirements that (1) the gift be completed within 10 years (or, if sooner, the collector's death) or (2) the value of any additional contributions be determined using the lesser of the value of the work at the time of the initial contribution or the time of the additional contribution (thus depriving donors of the benefit of any increase in the value of the work over time). So, while the corrections do bring fractional gifts back from the dead (as evidenced by the recent major gift to LACMA), there still remain some disincentives to fractional giving."

The new bill focuses on these two issues, and basically tracks the "agreement in principle" among members of the Senate Finance Committee that was described in a New York Times article in July of last year:

First, it was reported that "amendments hammered out by aides to Mr. Schumer and Mr. Grassley would lengthen [the 10-year donation period] to 20 years" -- and that's exactly what the new bill provides.

And second, it was said that Grassley appeared "willing to allow donors to claim deductions for subsequent donations that reflect increases in the value of the portion of the artwork they still own." That is also now reflected in the bill.

There's one other important change to note. Back in 2006, when this problem first surfaced, I mentioned a New York Times article which said that proponents of the change were concerned about "abuse" by collectors who "received upfront tax deductions for works that will not appear in museum collections for decades, if ever." Senator Grassely was quoted as saying: "It isn’t right for a donor to get a big tax break for supposedly donating a painting that hangs in his living room, not the museum, all year. A painting in a private living room doesn’t benefit the public." As I said then:

"Those problems, to the extent they are problems, could have been solved with the following two changes:

"1. By overruling the Winokur rule that the museum’s legal entitlement to possession for a portion of the year was sufficient to secure the deduction, even if it never took actual possession. This would eliminate Senator Grassley's concerns about a painting hanging in the collector's living room all year.

"2. By requiring that the collector transfer her remaining interest to the museum by some outside date .... This would deal with the concerns ... about works not appearing in the museum's collection 'for decades, if ever' (though the first change, overruling Winokur, would ensure that, from the beginning, the works would appear in the museum's collection for at least part of each year)."

As we've seen, the new bill does the second thing: it sets an outside date of 20 years for completion of the gift. But it also does the first: it overrules Winokur by providing that, for every five-year period, the work must be "in the physical possession" of the museum (and "used in a use which is related to a purpose or function constituting the basis for the donee organization's [tax] exemption") for a portion of the time "substantially" equivalent to its fractional interst (so, for example, a museum with a 20% interest in a painting must take physical possession of the painting for roughly one year out of the five). The WSJ story interprets this provision as requiring that the museum "exhibit the artwork in proportion to its ownership interest over every five-year period" (my emphasis), but it's not clear to me whether keeping a work in storage, or perhaps making it accessible to scholars, would satisfy that requirement. If not, then the donor may have to extract a promise from the museum, as a condition of the gift, to exhibit the work in compliance with this provision.

Very briefly, a few other points about the bill. First, like the Pension Protection Act, it provides that no deduction will be allowed unless all interests in the work were owned by the donor and the donee immediately before the contribution (although it contemplates the issuance of regulations covering "cases where all persons who hold an interest in the property make proportional contributions" of their interests).

Second, the initial fractional contribution must be at least 10%, and it must be pursuant to a "written binding contract" which requires (a) that a total of at least 20% be contributed within 11 years and (b) the rest be contributed within 20 years.

Finally, for works (as distinct from interests) worth more than $1 million, the donor has to attach to her tax return "a statement of value obtained from the Internal Revenue Service." There are also additional reporting requirements for museums.

You can read the bill, S. 1605, here.

Prosecution Argument at Sentencing

In Virginia after a defendant is found guilty of a crime there is a jury sentencing hearing and, of course, argument from both sides as to what the appropriate sentence should be. Here's my sentencing argument from my jury last Friday.

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Thank you, Judge.

Ladies and gentlemen, there are generally four reasons we put somebody in prison or jail. The first is what everybody calls retribution, basically just punishment. The second is to keep them away from people, to keep them from being able to do anything. The third is to teach the lesson to other people; they see what happened to somebody and they don't do it themselves. The fourth is rehabilitation. I'd ask you to keep all these in mind when you go in the back and try to decide all this.

Now I'm going to tell you, I don't know what this ten months in Texas was. The conviction records I'm handing up to you are all from Virginia. As the defendant himself testified, apparently if you commit a felony in Texas and you do something right, they take it off your record. I don't know how that works; I'm a lawyer in Virginia, not Texas, but apparently he spent ten months in jail in Texas. So, I don't think, to be honest with you, that rehabilitation is going to happen. You may disagree with me on that and that's you privilege. I really don't think going to jail or prison is going to rehabilitate him.

So, the questions then come down to, if you're a person who believes in straight punishment,what punishment's appropriate. And you should weigh what both Dad and Step-Mom have said. And you should also weigh the fact that he's been to jail for ten months in Texas and then came up here and did this. So ten months didn't stop him. So, you weigh his prior record and everything in and you might think how much punishment he's due.

Stopping him from doing something like this again. Well, obviously as long as he's in jail or prison he's not going to be doing this again. How long he needs to be away to accomplish that, again I leave to you.

The last thing, of course, is setting an example for others. You know, a lot of people believe in standing up here and banging on the table and saying "Send a message! Send a message!" Well, I'm not going to feed you that line, because this is a family thing. Now, whatever happened in Texas or his drug possession charges, those might have been send a message charges. This is family and as much as I think he needs a stiff sentence, his family has asked for less.

I think, and I've tried any number of juries in my career, I think personally that finding guilt or innocence is the easier part of the trial. Setting an appropriate sentence is incredibly difficult and I don't know if we ever get it 100% right. Like I said, my thoughts would be to ask you for a lot of time. 10 months didn't work; my thoughts would be to ask for more than that. His parents, his father and step mother have asked you for less than that. Balance all that in, ladies and gentlemen.

There are different ways that different people think punishment should be set. I've heard people stand up and say that for every $100 stolen a month should be given in jail - that would be 15 months in this case. I probably would have asked for, in this case, two years, but that's another issue.

I just ask you to take serious thought as to what good you are going to do the community through this sentence and please do your best with it. Thank you.

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As you might be able to tell, we don't get the over night break that the prosecutors in Law and Order always seem to get in order to put their arguments in proper order. It's pretty much extemporaneous exposition and every time I read one of my arguments I see errors, things I forgot, and things that don't make sense when you just read them. Still, at least when I was in the moment the argument seemed to be flowing well and connecting with the jury (although, for all I know, they may have thought me an idiot and ignored everything I said in their deliberations).
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Still More on the Roerich Thefts

From Art Theft Central's Mark Durney here and here: "Why are the police only publicizing the thefts now? Also, if the museum receives only approximately 35 visitors a day, then have investigators attempted to track who visited on Wednesday, June 24 and Sunday, June 28?"

Background here.

Arts Programming Cuts

The top story in the NYT Arts section today tells how "tens of thousands of students at public and private colleges and universities around the country will find arts programs, courses and teachers missing — victims of piercing budget cuts — when they descend on campuses this month and next." You can read the gory details here.

Derek Fincham thinks it perhaps "indicates ... a potential tide of deaccessions across the country":

"Given this, I think we need to seriously ask whether the current set of rules for deaccessioning works of art are really ensuring the continued viability of the arts. Why can't a University decide to sell all or part of its art collection? So long as it remains on display or available to researchers in the public trust, who is harmed?"

Sometimes You Look Back & Realize What a Snit You Were Being

There are times you look back at your behaviour and feel like kicking yourself.

Jury on Friday was credit card theft with Defendant stealing from Dad & Step-Mom. Defense Counsel wants Dad to testify during the sentencing phase of the jury trial, because he knows Dad is a reluctant witness who doesn't really want his son to go to jail. However, under Virginia case law Defense Counsel is clearly not allowed to present evidence of anything other than that which lessens his prior record or diminishes, but does not negate culpability for the current crime. Family wishes and effect on the family are clearly not allowed. See Shifflet and (last month) Jones Jr.. We argue back and forth on this with me pointing to the rule set out in the cases and Defense Counsel trying to play the precedent down by claiming the decisions just said the judge hadn't abused his discretion so the judge didn't have to follow the precedent. At one point the judge said something off the cuff about "Isn't family continuity one of the goals of Virginia law?" Anyway, after a while the argument shifted and Defense Counsel started arguing that he didn't want to call Dad because he was family, but because he was the victim. I point out that the statute only authorizes the prosecution to introduce victim evidence during the sentencing, thus excluding the defendant from doing so. In the end, the judge allows Defense Counsel to call Dad, "just to ask him what he thinks an appropriate sentence would be."

Faced with that, I introduce the defendant's prior convictions and the call Step-Mom to the stand. Defense Counsel objects and we go up to the bench to argue the point where the jury cannot hear us. Now, I've got a clear statutory allowance to "present any victim impact testimony" and she's as hooked into the checking account as her husband. I can just stand there and point at the statute and I should win the argument. Is that what I did?. Nope. When Defense Counsel objects because Dad's name is on the checking account, not Step-Mom's, I let out, "Judge, I thought we in family harmony mode, kumbyaland . . ." At which point Defense Counsel bows to my keen legal argument and withdraws his objection.

Cross Examination: Convicted in Texas, but Apparently not Virginia

On Friday, I was cross examining the defendant in a case and asked him about his felony record:

Q: Have you been convicted of a felony in Virginia?

A: No. not in Virginia . . .

Q: Well, have you been convicted of a felony in another State?

A: I don't know how to answer that question. According to that piece of paper, I haven't. I don't know what to say.

Q: You're under oath. You're supposed to tell the truth.

A: Well, I was convicted in Texas, but that was supposed to go away.
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Q: So, you were convicted of a felony in Texas?

A: Yes, but after I spent my time in jail it was supposed to go away.

Not Off To A Great Start

The Boston Herald reports that "the [Massachusetts] Supreme Judicial Court won’t hear the lawsuit filed by three top Rose Art Museum patrons against Brandeis University .... The SJC transferred the case to the Suffolk probate court."

"We were always more oriented toward prevention"

More from the NYT on the Roerich Museum thefts. Derek Fincham says "such a small museum is a good target for art thieves as it may not have sophisticated security systems, and limited visitors who may notice a theft."

"We imagine that the first hurdle the three plaintiffs will face is a challenge by Brandeis University to their standing"

The Charity Governance Blog's Jack Siegel on the recently filed Rose lawsuit:

"Under general principles of charity law, the [plaintiffs] probably lack standing: Donors lack standing. ... The donors may ... be able to argue special interest standing, but the Massachusetts Attorney General is aware of and, according to the plaintiffs' own pleadings, has been involved in the dispute. Attorney general involvement can undercut a claim to special interest standing. The three plaintiffs will undoubtedly argue that their status as members of the Board of Overseers of the Rose Museum provides them with standing. As we understand the board’s legal status, it is advisory. That fact may undercut their claim. At this point, all we can say is that both sides have sufficient facts to keep the battle over standing going for several rounds of court decisions. In the end, we bet the three will lose on the standing issue, but there are cases where donors have prevailed. See, for example, Smithers v. St. Luke’s-Roosevelt Hospital, 281 A.D.2d 127 (N.Y. App. Div. 2001)."

My initial reaction to the complaint was similar.

"These books seem to cover everything an art professional might need to know"

In The L Magazine, Paddy Johnson reviews Heather Darcy Bhandari and Jonathan Melber’s Art/Work: Everything You Need to Know (and Do) As You Pursue Your Art Career and Jackie Battenfield’s The Artist’s Guide. I mentioned the former before here.

"If someone steals your car you can go get another one, but with a painting you can't replace it"

From the New York Post: "Brazen art thieves swiped two Russian masterpieces right off the walls of an Upper West Side museum in separate heists that police are finding as hard to decipher as an abstract painting. A cop who happened to be visiting the museum was the first to notice a work was missing from the Nicholas Roerich Museum on West 107th Street near Riverside Drive."

Another Museum Embezzlement

This time by a bookkeeper for the Tucson Museum of Art, to the tune of $975,000 over five-years. Previous museum-embezzlement stories here, here, here, and here.

"How does any of this jibe with the penchant for the public’s access and right to art?"

The Art Market Monitor: De-accessioning Double Standard.

Is art theft the third-largest criminal enterprise?

Derek Fincham considers the question here.

More on the Bull Suit

Nick Obourn: "The irony behind this, of course, is if Random House loses the lawsuit, the title of the book (A Colossal Failure of Common Sense) will have a deeply regretful double meaning."

Action & Reaction: Virginia Altering Ethics Rules for Prosecutors

By changing constitutional law in Montejo, the federal supreme court fundamentally altered the realities of interrogations. In so doing, it left prosecutors in a precarious position. The generic ethical rule does not allow communication with a defendant once she has counsel. However, there are no longer any protections of the defendant until she announces that she will not talk without her lawyer present - irregardless of whether an attorney has been appointed/hired. Where does this leave the prosecutor? Is he disabled from doing what he can constitutionally by ethics obligations? What if an officer has heard about Montejo and asks if he can talk to a defendant who already has an attorney appointed? Are we supposed to mislead the officer as to what he's allowed to do because of the Bar's ethics rules?

The Virginia State Bar is stepping into the breach with a proposed change to the comment section of Rule 4.2: Communication With Persons Represented By Counsel

[5] In circumstances where applicable judicial precedent has approved investigative contacts in pre-indictment, noncustodial circumstances prior to attachment of the right to counsel, and they are not prohibited by any provision of the United States Constitution or the Virginia Constitution, they should be considered to be authorized by law within the meaning of the Rule. Similarly, communications in civil matters may be considered authorized by law if they have been approved by judicial precedent. This rule does not prohibit a lawyer from providing advice regarding the legality of an interrogation or the legality of other investigative conduct.

The second change to the comment is unambiguous. A prosecutor can advise officers as to the current limits of the law.

However, the first change is more problematic. It's very ambiguous. "Prior to the attachment of right to counsel" leaves open the question of when the right to counsel attaches. Per Montejo it would seem to attach at the moment the defendant asserts her right to counsel during questioning, whether or not counsel had previously been hired/appointed. However, during the initial pre-trial hearing the judge is supposed to determine what the defendant is going to do about an attorney, and appoint counsel to anyone who is indigent. A not insignificant argument can be made that this is when the right attaches (assuming the defendant has not demanded counsel during earlier questioning). Personally, I wouldn't mind the second interpretation too much. Since I can't be a witness, I really don't need to be talking to the defendant anyway. Still, the Bar should tighten that language up some.

"The city's attorneys set Clearwater on a path that led to unnecessary expense, public ridicule and losses in court"

The St. Petersburg Times editorial board on the fish mural suit.