Heather Hope, who has excellent taste (see last bullet point), says, of The Art of the Steal: "I hated this movie and don’t recommend that anyone see it." Why? Because "it’s completely one-sided," an "ill-conceived gem of propaganda."
And Kevin Murphy -- who's a Democratic speechwriter on Capitol Hill -- says the movie "gradually becomes so grossly one-sided in its telling that it skips right over myopic and naive and ends up feeling downright corrupt." The whole thing is worth reading, but some highlights:
"I would also argue there's a world-historical eminent domain question here that should at least be addressed. Albert Barnes may have been a Great Man, but...Mistah Barnes, he dead. ... He's as dead as King Tut, who probably would not have signed off on what Howard Carter et al did to his tomb. ... And, speaking of which, there's a reason why Indiana Jones' usually undisputed refrain is, 'It belongs in a museum!'
"You may disagree, of course, and think that Barnes' will should be held inviolate from now until the End of Days -- Ok, that's cool, we disagree. But a good documentary would at least entertain this obvious opposing argument. . . . [I]n its final half-hour or so, Art of the Steal just fulminates and rages, barely making any sense at all. It accuses City officials of enacting an elaborate and corrupt scam on the people, and then depicts County officials, as well as the area's GOP Congressman, as if they're pure art lovers or something. . . .
"[T]he movie generates so much heat in the end that the light is lost. At one point, Governor Ed Rendell says the move of the collection to Philadelphia just seemed like an easy call to him, and after watching this documentary, I didn't see much to disqualify that claim. Other than following verbatim the will of a man with no heirs who's been dead for fifty years, what were the reasons again for keeping the collection in Lower Merion?
"In choosing to be a one-sided screed rather than an in-depth exploration of the subject at hand, Art of the Steal does its very interesting topic no favors."
Tuesday, March 30, 2010
Monday, March 29, 2010
Linkage
- Unauthorized readymades?
- Money trouble at the Detroit Institute of Arts.
- The fight over Marc Dreier's Warhols.
Intent? We don't need no stinking Intent!
Tomorrow, I'm going to be doing a presentation at the local Bench-Bar conference on the interesting cases of the last year. While prepping yesterday, I reread a case from the Virginia Court of Appeals, Herron v. Commonwealth. In Herron the defendant was arrested and taken to jail. On the way, the officer asked Herron several times if he had drugs and each time Herron said that he did not. Of course, once he got to jail and was searched, Herron had drugs. He was convicted of bringing drugs into a jail.
At trial, and on appeal, Herron argued that he had a right not to incriminate himself when he told the officer he had no drugs and that he didn't have any intent to bring the drugs into the jail because he didn't have any intent to go to jail - he was put in jail against his will.
Personally, I would have handled this in a fairly typical fashion. A standard jury instruction (and case law) in Virginia states that "A person can be inferred to intend the natural consequences of his actions." He doesn't have tell the officer anything, but when he doesn't and ends up in jail with drugs, he intended to go into the jail with the drugs rather than get charged with simple possession by the officer. I think this is a pretty straight forward analysis. However, the Court of Appeals chose a different path.
The Virginia Court of Appeals shoots down the 5th Amendment argument in a manner similar to what I laid out above (you can remain silent, but that doesn't mean you aren't guilty of your acts), but the really interesting part of the decision is about whether Herron had intent to carry the drugs into the jail.
Here the Court of Appeals goes off onto a tangent which I would not have expected from this case. Relying on Esteban v. Commonwealth, from the Virginia Supreme Court, the Court of Appeals states that because this statute was not in the common law and the General Assembly did not write an intent into the statute it is a strict liability criminal statute and Herron's intent is irrelevant.
This is a disturbing trend in Virginia criminal law. Prior to Esteban declaration of criminal law strict liability there was a solid argument based both in case law and statutes that there must be intent in all criminal law statutes. In fact, here's the argument as the Virginia Supreme Court received it in Esteban (a teacher convicted for bringing a pistol to school after she forgot it was in her bag):
It's a terrible precedent, based upon a shaky line of reasoning. The two primary Virginia cases upon which this was based were Maye v. Commonwealth, JUN72, 213 Va. 48, and Makarov v. Commonwealth, OCT76, VaSC No. 751263. In Maye the VaSC found a statute without an intent element constitutional because:
But here we come full circle, back to the case we started with, Herron. The Virginia Court of Appeals partially overrules the VaSC's Esteban holding. Recall that in Esteban the VaSC rejected the Commonwealth being required to prove she "knew she possessed the firearm." In Herron the VaApp adopts the "voluntary act" test, even in strict liability crimes:
I hope that all this nonsense gets overturned some day or that the General Assembly writes a statue requiring intent in each and every criminal offense. But, if we have to have strict liability criminal statutes, I prefer the Court of Appeals' version to that of the Supreme Court.
.
At trial, and on appeal, Herron argued that he had a right not to incriminate himself when he told the officer he had no drugs and that he didn't have any intent to bring the drugs into the jail because he didn't have any intent to go to jail - he was put in jail against his will.
Personally, I would have handled this in a fairly typical fashion. A standard jury instruction (and case law) in Virginia states that "A person can be inferred to intend the natural consequences of his actions." He doesn't have tell the officer anything, but when he doesn't and ends up in jail with drugs, he intended to go into the jail with the drugs rather than get charged with simple possession by the officer. I think this is a pretty straight forward analysis. However, the Court of Appeals chose a different path.
The Virginia Court of Appeals shoots down the 5th Amendment argument in a manner similar to what I laid out above (you can remain silent, but that doesn't mean you aren't guilty of your acts), but the really interesting part of the decision is about whether Herron had intent to carry the drugs into the jail.
Here the Court of Appeals goes off onto a tangent which I would not have expected from this case. Relying on Esteban v. Commonwealth, from the Virginia Supreme Court, the Court of Appeals states that because this statute was not in the common law and the General Assembly did not write an intent into the statute it is a strict liability criminal statute and Herron's intent is irrelevant.
This is a disturbing trend in Virginia criminal law. Prior to Esteban declaration of criminal law strict liability there was a solid argument based both in case law and statutes that there must be intent in all criminal law statutes. In fact, here's the argument as the Virginia Supreme Court received it in Esteban (a teacher convicted for bringing a pistol to school after she forgot it was in her bag):
At trial, the instruction in issue would have required the Commonwealth to prove that defendant "knew she possessed the firearm." The defendant contends the trial court erred in refusing the instruction because, she argues, mens rea is an element of this statutory offense.That is a well thought out, well reasoned, and persuasive argument for the inclusion of intent in every criminal law statute. And yet, despite this smart, cogent argument the Virginia Supreme Court created the strict liability criminal law statute - or at least stated that the General Assembly could do so as long as the crime in question did not have common law roots.
In support of her argument, the defendant refers to Code § 1-10, which provides that the common law of England, "insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly." See Weishaupt v. Commonwealth, 227 Va. 389, 399-400, 315 S.E.2d 847, 852 (1984).
The defendant relies upon the proposition, set forth in Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974), that a statute must be "read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law." This is because the General Assembly "is presumed to have known and to have had the common law in mind in the enactment of a statute." Id.
Continuing, the defendant relies upon the following statement in Parrish v. Commonwealth, 81 Va. 1, 14 (1884), that "whenever a statute makes any offence [a] felony, it incidentally gives it all the properties of a felony at common law." The defendant points out that the requirement of some mens rea for a crime was deeply embedded in the common law, and that the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence, citing Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).
Thus, defendant contends, because the offense charged here is a felony, mens rea must be read into the statute as an element of the offense, even though the statute does not include an express mens rea element.
It's a terrible precedent, based upon a shaky line of reasoning. The two primary Virginia cases upon which this was based were Maye v. Commonwealth, JUN72, 213 Va. 48, and Makarov v. Commonwealth, OCT76, VaSC No. 751263. In Maye the VaSC found a statute without an intent element constitutional because:
A claim that a statute on its face contains no requirement of Mens rea or Scienter is no ground for holding the statute unconstitutional since such requirement will be read into the statute by the court when it appears the legislature implicitly intended that it must be proved.In Makarov the VaSC found a statute unconstitutional because it lacked an intent element, explaining that in Maye:
We upheld the constitutionality of the enactment and decided that a requirement of Mens rea or Scienter should be read into the statute because it appeared the General Assembly 'implicitly intended' that such be proved. 213 Va. at 49, 189 S.E.2d at 351. There, we construed a statute specifically dealing [217 Va. 386] with larceny, a crime which presupposes a Mens rea. But here the statute on its face deals with a naked civil debt and we cannot say the General Assembly implicitly meant to include proof of an intent to defraud as an essential element of the offense.If you turn your head at the right angle and squint, you can use these cases to reach the result the VaSC reached in Esteban. That is to say, there is no intent required in a criminal offense unless there was an intent required in the offense under the common law as it stood in 1776 (independence from British rule leading to a freezing of the common law). The General Assembly might grace the citizens of Virginia with some sort of intent in any statute it passed after 1776, but nothing keeps the General Assembly from passing a law which states it is illegal to roll over in one's sleep and then arresting us in job lots when we do so while we are unconscious.
But here we come full circle, back to the case we started with, Herron. The Virginia Court of Appeals partially overrules the VaSC's Esteban holding. Recall that in Esteban the VaSC rejected the Commonwealth being required to prove she "knew she possessed the firearm." In Herron the VaApp adopts the "voluntary act" test, even in strict liability crimes:
[E]ven if [a statute] is a strict liability offense, the Commonwealth still must prove that appellant committed a voluntary act. All crimes of affirmative action, even strict liability crimes, require something in the way of a mental element-at least an intention to make the bodily movement which constitutes the act which the crime requires.That doesn't mesh with the Esteban opinion. If the school teacher did not know she possessed the firearm, she couldn't have intended to do the "voluntary act" of carrying it into the school. Thus the standard for strict liability in the Virginia Supreme Court is absolute strict liability while the standard for strict liability in the Virginia Court of Appeals is a limited strict liability.
I hope that all this nonsense gets overturned some day or that the General Assembly writes a statue requiring intent in each and every criminal offense. But, if we have to have strict liability criminal statutes, I prefer the Court of Appeals' version to that of the Supreme Court.
.
Saturday, March 27, 2010
"Officials of the failed Fresno Metropolitan Museum say they hope to auction off most of their art collections by October"
"Walter's announcement suggests that the Met doesn't anticipate legal challenges to derail its efforts to sell the collection and use the proceeds to pay creditors." This is what happens when we let them fail.
Friday, March 26, 2010
"A powerful example of the altlaw in action" (UPDATED)
Sonia Katyal and Eduardo Peñalver -- authors of Property Outlaws -- make the case for Shepard Fairey as a heroic intellectual property "altlaw" -- i.e., someone who pushes the boundaries of what the law allows.
Sergio Muñoz Sarmiento responds here.
One question I have is: what if he loses? That is, Katyal and Peñalver argue that "if the law is to avoid being completely captured by the expansive claims of intellectual property owners, it needs more plaintiffs--and more cases--that enable courts to clarify the boundaries of fair use for the future." But doesn't that assume that courts will always clarify the boundaries in the direction or more fair use? Did Rogers v. Koons, for example, result in less expansive claims of intellectual property owners? What if (just for the sake of argument) the Fairey court holds that you can't make use of another's photo -- under any circumstances -- unless you get a license? That certainly would help clarify the boundaries of fair use in the future, but not in a way that makes the law less captive to the claims of IP owners.
UPDATE: Randy Kennedy in Saturday's New York Times: "Artist Looks to be Legal."
Sergio Muñoz Sarmiento responds here.
One question I have is: what if he loses? That is, Katyal and Peñalver argue that "if the law is to avoid being completely captured by the expansive claims of intellectual property owners, it needs more plaintiffs--and more cases--that enable courts to clarify the boundaries of fair use for the future." But doesn't that assume that courts will always clarify the boundaries in the direction or more fair use? Did Rogers v. Koons, for example, result in less expansive claims of intellectual property owners? What if (just for the sake of argument) the Fairey court holds that you can't make use of another's photo -- under any circumstances -- unless you get a license? That certainly would help clarify the boundaries of fair use in the future, but not in a way that makes the law less captive to the claims of IP owners.
UPDATE: Randy Kennedy in Saturday's New York Times: "Artist Looks to be Legal."
Thursday, March 25, 2010
Reviewing the Kindle
Recently, I bought the Kindle. I had thought of buying various different readers, but eventually went with the Kindle because the Sony Touch was slightly more expensive and there has been some talk that the Touch isn't quite as sharp. I bought the smaller one because I can't picture having the larger screen without the ability to use a stylus to write notes. If I'd bought a larger screen ereader I would have gone with Sony's for that reason and its lower price. The Kindle, at $259. was the best price for an ereader that I trust.
The Good: When you use the Kindle for what it is built for it does an amazing job. It is the perfect replacement for paperbacks. The e-ink is crystal clear and it's not another glowing screen to wear out your eyes. You can adjust the font size and I did bump it up a size because of my eyes which were never so great and which have been worn out by too much staring at glowing screens; if you have younger eyes you may bump it down a size to get more on one screen. You can hold the tablet easily in one hand and click the button to change the page with your thumb. Personally, I suggest that you don't get one of the many covers which make the Kindle look like a book and will require you to use both hands like a book. It just works perfectly as a one hand device.
Prices at Amazon are generally very reasonable. Amazon held the line at $9.99 maximum for all e-books until recently. When Apple sold consumers down the river in order to get publishers to come to its bookstore for the iPad Amazon was forced to give ground. Still, I think the highest price I saw was $14.99 and I found a number of classic books, such as Blackstone, for $.99 (I even found Moby Dick available free of charge). Outside of Amazon, other companies can provide digital books which work on the Kindle through various formats. Some companies are reasonable about this and some are insane enough to think that I'll pay the price of a hardbound book even if they haven't paid for ink or paper or shipping or the profit the brick and mortar would have taken.
All-in-all, once ereaders come down to a reasonable price (they really should be $99 or lower), there will be no reason for anyone to buy a paperback anymore except sheer stubbornness. The only reason to buy hardbound books will be to have the book on a shelf to impress people.
The Bad: The thing I'm most upset about has nothing to do with Amazon. It has to do with legal publishers. This would be a good medium for legal trial books - the ones companies put out every year for practitioners to take to court with them so that they are able to make arguments on the fly. Specifically, I checked for Criminal Offenses and Defense in Virginia, The Law of Evidence in Virginia (usually called "Friend"), Police, Crimes and Offenses and Motor Vehicle Laws of Virginia (yearly selected codes for crime and traffic), and the Annotated codes (both Lexis and West). None of these were available. Neither West nor Lexis had any useful books which could be downloaded on the Kindle. Last year, West announced that it was putting 30 of its books out for the Kindle, but there wasn't a single one of them which was really of use.
The Other: PDF's don't work well on the Kindle; it shrinks them in size and can make them very difficult to read. I can't really complain about this because if I'd wanted full size I could have bought one of the larger ereaders.
I also can't use the wireless downloading of books, but this is not Amazon's fault. We just have very limited wireless service here in the mountains. I was able to get the wireless to work over in a town in Kentucky, but didn't download any books (just checked the internet). Not having wireless isn't all that bad, all you do is download a book from the Amazon site to your computer and transfer it via a USB cord.
The internet browser on the Kindle is primitive. It works about like a phone browser on a non-smart phone. If a site is optimized for mobile browsers the site is easily read; if the site isn't optimized for it (or has flash) it's just not going to work very well. Basically, you should be able to read well put together blogs and newspapers.
The MP3 player is basic. It works. It can also play music while you read books. My Creative Zen is more versatile and smaller, so I use it instead.
Versus the iPad: There have no shortage of stories predicting the death of the Kindle because of the coming iPad. At this point the Apple reality distortion field is in full effect, so it's hard to tell. The one actual bit of research I've been able to find indicates that the Kindle is actually doing better than the iPad.
I wouldn't be surprised if this continues. I know that since I've started carrying mine their have been a lot of people showing interest in it and most of them are people I don't see buying an iPad (or any other tablet computer). My main hope is that the competition from multi-purpose tablets will drive ereaders down to where their pricing ought to be, perhaps $79.99 for the smaller and $124.99 for the larger unit. It'd also be nice if they finally went to color e-ink. I hope they don't try to change from single focus devices to multi-focus. If the ereader providers try to compete at that level they'll lose.
Conclusion: As something to read with, the Kindle is easily better than a paperback book. In the end, even at $259, it will pay for itself in money I save on books (assuming the current pricing scheme holds) in about 18 months, but it is really too expensive to achieve the level of market penetration it should be getting. If you can afford one buy it.
[addendum] cross posted - with some improvements at my office's blog "The Digital Office".
The Good: When you use the Kindle for what it is built for it does an amazing job. It is the perfect replacement for paperbacks. The e-ink is crystal clear and it's not another glowing screen to wear out your eyes. You can adjust the font size and I did bump it up a size because of my eyes which were never so great and which have been worn out by too much staring at glowing screens; if you have younger eyes you may bump it down a size to get more on one screen. You can hold the tablet easily in one hand and click the button to change the page with your thumb. Personally, I suggest that you don't get one of the many covers which make the Kindle look like a book and will require you to use both hands like a book. It just works perfectly as a one hand device.
Prices at Amazon are generally very reasonable. Amazon held the line at $9.99 maximum for all e-books until recently. When Apple sold consumers down the river in order to get publishers to come to its bookstore for the iPad Amazon was forced to give ground. Still, I think the highest price I saw was $14.99 and I found a number of classic books, such as Blackstone, for $.99 (I even found Moby Dick available free of charge). Outside of Amazon, other companies can provide digital books which work on the Kindle through various formats. Some companies are reasonable about this and some are insane enough to think that I'll pay the price of a hardbound book even if they haven't paid for ink or paper or shipping or the profit the brick and mortar would have taken.
All-in-all, once ereaders come down to a reasonable price (they really should be $99 or lower), there will be no reason for anyone to buy a paperback anymore except sheer stubbornness. The only reason to buy hardbound books will be to have the book on a shelf to impress people.
The Bad: The thing I'm most upset about has nothing to do with Amazon. It has to do with legal publishers. This would be a good medium for legal trial books - the ones companies put out every year for practitioners to take to court with them so that they are able to make arguments on the fly. Specifically, I checked for Criminal Offenses and Defense in Virginia, The Law of Evidence in Virginia (usually called "Friend"), Police, Crimes and Offenses and Motor Vehicle Laws of Virginia (yearly selected codes for crime and traffic), and the Annotated codes (both Lexis and West). None of these were available. Neither West nor Lexis had any useful books which could be downloaded on the Kindle. Last year, West announced that it was putting 30 of its books out for the Kindle, but there wasn't a single one of them which was really of use.
The Other: PDF's don't work well on the Kindle; it shrinks them in size and can make them very difficult to read. I can't really complain about this because if I'd wanted full size I could have bought one of the larger ereaders.
I also can't use the wireless downloading of books, but this is not Amazon's fault. We just have very limited wireless service here in the mountains. I was able to get the wireless to work over in a town in Kentucky, but didn't download any books (just checked the internet). Not having wireless isn't all that bad, all you do is download a book from the Amazon site to your computer and transfer it via a USB cord.
The internet browser on the Kindle is primitive. It works about like a phone browser on a non-smart phone. If a site is optimized for mobile browsers the site is easily read; if the site isn't optimized for it (or has flash) it's just not going to work very well. Basically, you should be able to read well put together blogs and newspapers.
The MP3 player is basic. It works. It can also play music while you read books. My Creative Zen is more versatile and smaller, so I use it instead.
Versus the iPad: There have no shortage of stories predicting the death of the Kindle because of the coming iPad. At this point the Apple reality distortion field is in full effect, so it's hard to tell. The one actual bit of research I've been able to find indicates that the Kindle is actually doing better than the iPad.
I wouldn't be surprised if this continues. I know that since I've started carrying mine their have been a lot of people showing interest in it and most of them are people I don't see buying an iPad (or any other tablet computer). My main hope is that the competition from multi-purpose tablets will drive ereaders down to where their pricing ought to be, perhaps $79.99 for the smaller and $124.99 for the larger unit. It'd also be nice if they finally went to color e-ink. I hope they don't try to change from single focus devices to multi-focus. If the ereader providers try to compete at that level they'll lose.
Conclusion: As something to read with, the Kindle is easily better than a paperback book. In the end, even at $259, it will pay for itself in money I save on books (assuming the current pricing scheme holds) in about 18 months, but it is really too expensive to achieve the level of market penetration it should be getting. If you can afford one buy it.
[addendum] cross posted - with some improvements at my office's blog "The Digital Office".
Tuesday, March 23, 2010
"A momentous, elating acquisition that makes us all proud"
MoMA has acquired the @ symbol into its collection: "Being in the public realm, @ is free. It might be the only truly free—albeit not the only priceless—object in our collection."
More Minor
Courthouse News Service: "A finance company owned by Bank of America demands that Christie's auction house and the Paul Kasmin Gallery turn over more than 100 artworks that belonged to CNET founder Halsey Minor - or the money from selling them. ML Private Finance says it holds a $21.6 million judgment against Minor."
For more Minor art litigation, see here and here.
For more Minor art litigation, see here and here.
Monday, March 22, 2010
How about "The Section 11 of the Indenture Foundation"?
Ed Winkleman watched The Art of the Steal and came away searching for a new name for the Barnes (he considers, among others, "The P.A.L. Foundation (for Pew Charitable Trusts; the Annenberg Foundation; and The Lenfest Foundation)").
He also says that "no one who watches this film could possibly imagine that the central Philadelphia location is anything Dr. Barnes would want his name attached to. It's the exact opposite of what he was very, very careful to put into his will as to his wishes for how his efforts should be remembered." It is in fact true that no one watching the film could possibly imagine that, but it's worth noting again in this connection Barnes chairman Bernard Watson's claim that the central Philadelphia location "was, in fact, anticipated by Section 11 of the Barnes Foundation Indenture," which includes the following:
". . . should it for any other reason become impossible to administer the trust hereby created concerning said collection of pictures, then the property and funds contributed by Donor to Donee shall be applied to an object as nearly within the scope herein indicated and laid down as shall be possible, such application to be in connection with an existing and organized institution then in being and functioning in Philadelphia, Pennsylvania, or its suburbs" (emphasis added).
He also says that "no one who watches this film could possibly imagine that the central Philadelphia location is anything Dr. Barnes would want his name attached to. It's the exact opposite of what he was very, very careful to put into his will as to his wishes for how his efforts should be remembered." It is in fact true that no one watching the film could possibly imagine that, but it's worth noting again in this connection Barnes chairman Bernard Watson's claim that the central Philadelphia location "was, in fact, anticipated by Section 11 of the Barnes Foundation Indenture," which includes the following:
". . . should it for any other reason become impossible to administer the trust hereby created concerning said collection of pictures, then the property and funds contributed by Donor to Donee shall be applied to an object as nearly within the scope herein indicated and laid down as shall be possible, such application to be in connection with an existing and organized institution then in being and functioning in Philadelphia, Pennsylvania, or its suburbs" (emphasis added).
Ego Busting 101
Our local court uses video records, so you can see the arguments you made. Recently, I was in a rather intense argument after which the judge agreed to do what I asked. I felt pretty good about it and 3 or 4 people told me how well I did. So, I decided to get a copy of it.
Maybe some of the rest of you are so telegenic and make arguments so perfectly that watching yourself just feeds your ego. Me? Not so much.
First of all, if there is something that is the opposite of telegenic I'm that. Short, overly round, and wearing goofy glasses - they're not going to be modeling any TV drama attorneys after me and nobody who isn't a juror or judge should be forced to look at me too long. Yeesh.
Then there was the argument. I stumbled. I stuttered. I stopped in mid-sentence. I made statements which made perfect sense to me (and the defense attorney) because I know the facts, but which had to leave the judge thinking, "Huh?" AAAaaarrrgggg!
Now, I have been told that my arguments work better when witnessed in person rather than watched on video. I hope so. Good gracious, I hope so.
.
Maybe some of the rest of you are so telegenic and make arguments so perfectly that watching yourself just feeds your ego. Me? Not so much.
First of all, if there is something that is the opposite of telegenic I'm that. Short, overly round, and wearing goofy glasses - they're not going to be modeling any TV drama attorneys after me and nobody who isn't a juror or judge should be forced to look at me too long. Yeesh.
Then there was the argument. I stumbled. I stuttered. I stopped in mid-sentence. I made statements which made perfect sense to me (and the defense attorney) because I know the facts, but which had to leave the judge thinking, "Huh?" AAAaaarrrgggg!
Now, I have been told that my arguments work better when witnessed in person rather than watched on video. I hope so. Good gracious, I hope so.
.
Saturday, March 20, 2010
Friday, March 19, 2010
And Many Moore!
Adam Jones of the Tuscaloosa News: "It’s been five years today, March 18, since the University of Alabama sued alumnus and sports artist Daniel Moore for trademark violations and Moore countersued for damaging his business. If a child were born that day, he’d start kindergarten in August."
Thursday, March 18, 2010
NYT on Rothschild Foundation
The New York Times had a story today -- on the front page, no less -- on the Judith Rothschild Foundation. The headline is "Foundation Promotes Art as Well as Sole Trustee." The Charity Governance Blog's Jack Siegel says: "That headline and the story [suggest] scandal. Sorry, we don’t see it. An ideal governance structure? Absolutely not, but we see little to suggest that the sole trustee ... has done anything wrong."
There Will Be More Moore
Sports artist Daniel Moore's appeal in his lawsuit with the University of Alabama has been reinstated. Background here.
When it Comes to Your Career, Maybe You Can Just Reinvent Yourself!
Check out this article written by Director of Career & Professional Development at Indiana University Maurer School of Law on a few ways to reinvent your professional self. This is especially relevant for those attorneys who hope to use their degree to pursue alternate career paths. You can also check out her blog This Is Not the Career I Ordered.
Who are these Crummy Defense Attorneys?
A big topic around the criminal defense blawgs recently was how defendants will hire incompetent attorneys and just be tickled pink as that attorney walks them right off the plank and into the ocean. via Divorce Discourse, My Law License, Simple Justice, & Crime and Federalism.
We've all seen these guys and rather than rehash why defendants are drawn to them, I thought I'd try to break down who they are.
Sturm und Drang: This guy has figured out that the best strategy for attracting clients is to be LOUD AND CONFRONTATIONAL. There is no give in this guy. Everything has got to be a trial and he will holler and fuss and object and object and object and object and his client will be convicted of driving without a license anyway. Then, the thoroughly peeved prosecutor will ask the thoroughly peeved judge to throw the book at his client. Defendant could have gotten a weekend in jail if the attorney had just had a short, civilized discussion with the prosecutor before they went before they went to the bench - now he's getting a month. This guy doesn't care. He knows that 50% of the people in the gallery were wowed by him fighting tooth and nail for his client and that they don't understand how it hurt the client. He knows this will bring business and big fees.
I Believe: A True Believer, especially a young True Believer, is dangerous for her clients. She's got a Cause. It can be to stop the oppression of the downtrodden. It can be to force the rule of law to be followed in Pitcairn County. It can be to prove to the world that Judge Smith isn't competent to be a judge. She's got long term goals and she's fired up about them. The problem is that she takes her clients with her on her quest to cure the world's ills (or at least those of the judicial system). Defendants usually have fairly short term problems and she isn't doing one of them a whole lot of good when she uses him as her gateway to make a novel argument that the larceny statute is an unconstitutional violation of the 13th Amendment. The defendants see her fighting tooth and nail and hear all these wonderful arguments - just like Law & Order - and think they're getting the best representation in the world.
Used to Be: This guy had an amazing string of victories once upon a time. He built a well deserved reputation as one of the best. The problem is that that was 20-30 years ago. Nowadays, he doesn't understand electronic research, he doesn't keep up with new cases, and the prosecutors aren't all that worried about him anymore. Still, he's been the high priced, high rep lawyer for so long that people keep going in and handing him tons of money.
The Only: This guy is one of the only two lawyers who have done criminal law in Pitcairn county for the last 20 years. He's represented entire clans - grandfather, fathers, sons, grandsons & granddaughters - as each generation makes it's way into court and on to jail. Every once in a while he's looked at the books and made some arguments, but usually he's just there to ease his clients comfortably through the system. And they go to him without even thinking about it. He's one of them - as opposed to those city lawyers who come out here and get in shouting matches with Judge Smith - and he's the guy they've been seeing in the courthouse every time they go there for the last 20 years. He must know what he's doing.
Miss Empathy: She makes illogical arguments in court, makes ridiculous objections, and does long meaningless cross examinations. Worse, she can't negotiate with the prosecutor and officers worth a darn. Her client "didn't really mean to do it" and was "led astray by her friends" and is a nice boy who comes from a good God-fearing family." She believes this and is emotionally invested in her client. The problem is, she believed it for the last 300 clients just as strongly and nobody trusts her judgement. Because she tends to harass prosecutors and officers they try to avoid her if at all possible. At the end of the trial she's out in the hall talking to Mom about her son's jail sentence and she's visibly more upset about it than Mom is; in fact, you'll sometimes see family members trying to comfort and talk her down. Defendants, and their families, love her because she obviously cares so much.
In the Glow: This guy is the partner, associate, or office sharer of a prominent lawyer. As such, he benefits from the Big Guy's reputation. When people can't afford Big Guy's fee or need someone NOW and Big Guy isn't available, they end up with this guy. After all, he's connected to Big Guy and therefore the defendant's going to get Big Guy's experience at this lawyer's rates (because this guy is going to talk to Big Guy and follow his advice). The they get to court and this guy is a civil attorney who dabbles in criminal law or a kid six months post Bar passage or they guy Big Guy keeps around out of loyalty because he gave Big Guy office space 20 years ago. Still, the defendant's happy because he's represented by someone out of Big Guy Law Offices (even if it's not Mr. Big himself).
MegaFirm International: The son of the COO of IBM gets a shoplifting charge. He turns to the only lawyers he knows, those of MegaFirm International, Inc., PSC, LLP - the ones who charge his corporation $750 an hour to write contracts. The next month a partner shows up in court with a hair styling alone which cost more than the combined value of the suits of all the trial lawyers in the room. He's had associates research all the shoplifting laws in the entire US for the last 20 years (at a bargain basement price of merely $250 per hour). They've briefed him and he has come to court with that one perfect case out of Wyoming. He doesn't know that if he just walked over to the prosecutor and asked the first time shoplifting would be taken under advisement for six months and dismissed after shoplifting classes and 50 hours community service. And he seems a little befuddled when Judge Smith just won't give any credit to that case out Cheyenne's District Court. Still, the COO is impressed and knows that his son has the only real lawyer in the courtroom.
--------------
Of course, these are not mutually exclusive categories. Most of these attorneys range across a number of them. While these are surely not all, they are all the categories I can think of this morning. And, none of these are based upon people I practice with now. I can, but won't, point to people in places I used to practice as models for every category above.
We've all seen these guys and rather than rehash why defendants are drawn to them, I thought I'd try to break down who they are.
Sturm und Drang: This guy has figured out that the best strategy for attracting clients is to be LOUD AND CONFRONTATIONAL. There is no give in this guy. Everything has got to be a trial and he will holler and fuss and object and object and object and object and his client will be convicted of driving without a license anyway. Then, the thoroughly peeved prosecutor will ask the thoroughly peeved judge to throw the book at his client. Defendant could have gotten a weekend in jail if the attorney had just had a short, civilized discussion with the prosecutor before they went before they went to the bench - now he's getting a month. This guy doesn't care. He knows that 50% of the people in the gallery were wowed by him fighting tooth and nail for his client and that they don't understand how it hurt the client. He knows this will bring business and big fees.
I Believe: A True Believer, especially a young True Believer, is dangerous for her clients. She's got a Cause. It can be to stop the oppression of the downtrodden. It can be to force the rule of law to be followed in Pitcairn County. It can be to prove to the world that Judge Smith isn't competent to be a judge. She's got long term goals and she's fired up about them. The problem is that she takes her clients with her on her quest to cure the world's ills (or at least those of the judicial system). Defendants usually have fairly short term problems and she isn't doing one of them a whole lot of good when she uses him as her gateway to make a novel argument that the larceny statute is an unconstitutional violation of the 13th Amendment. The defendants see her fighting tooth and nail and hear all these wonderful arguments - just like Law & Order - and think they're getting the best representation in the world.
Used to Be: This guy had an amazing string of victories once upon a time. He built a well deserved reputation as one of the best. The problem is that that was 20-30 years ago. Nowadays, he doesn't understand electronic research, he doesn't keep up with new cases, and the prosecutors aren't all that worried about him anymore. Still, he's been the high priced, high rep lawyer for so long that people keep going in and handing him tons of money.
The Only: This guy is one of the only two lawyers who have done criminal law in Pitcairn county for the last 20 years. He's represented entire clans - grandfather, fathers, sons, grandsons & granddaughters - as each generation makes it's way into court and on to jail. Every once in a while he's looked at the books and made some arguments, but usually he's just there to ease his clients comfortably through the system. And they go to him without even thinking about it. He's one of them - as opposed to those city lawyers who come out here and get in shouting matches with Judge Smith - and he's the guy they've been seeing in the courthouse every time they go there for the last 20 years. He must know what he's doing.
Miss Empathy: She makes illogical arguments in court, makes ridiculous objections, and does long meaningless cross examinations. Worse, she can't negotiate with the prosecutor and officers worth a darn. Her client "didn't really mean to do it" and was "led astray by her friends" and is a nice boy who comes from a good God-fearing family." She believes this and is emotionally invested in her client. The problem is, she believed it for the last 300 clients just as strongly and nobody trusts her judgement. Because she tends to harass prosecutors and officers they try to avoid her if at all possible. At the end of the trial she's out in the hall talking to Mom about her son's jail sentence and she's visibly more upset about it than Mom is; in fact, you'll sometimes see family members trying to comfort and talk her down. Defendants, and their families, love her because she obviously cares so much.
In the Glow: This guy is the partner, associate, or office sharer of a prominent lawyer. As such, he benefits from the Big Guy's reputation. When people can't afford Big Guy's fee or need someone NOW and Big Guy isn't available, they end up with this guy. After all, he's connected to Big Guy and therefore the defendant's going to get Big Guy's experience at this lawyer's rates (because this guy is going to talk to Big Guy and follow his advice). The they get to court and this guy is a civil attorney who dabbles in criminal law or a kid six months post Bar passage or they guy Big Guy keeps around out of loyalty because he gave Big Guy office space 20 years ago. Still, the defendant's happy because he's represented by someone out of Big Guy Law Offices (even if it's not Mr. Big himself).
MegaFirm International: The son of the COO of IBM gets a shoplifting charge. He turns to the only lawyers he knows, those of MegaFirm International, Inc., PSC, LLP - the ones who charge his corporation $750 an hour to write contracts. The next month a partner shows up in court with a hair styling alone which cost more than the combined value of the suits of all the trial lawyers in the room. He's had associates research all the shoplifting laws in the entire US for the last 20 years (at a bargain basement price of merely $250 per hour). They've briefed him and he has come to court with that one perfect case out of Wyoming. He doesn't know that if he just walked over to the prosecutor and asked the first time shoplifting would be taken under advisement for six months and dismissed after shoplifting classes and 50 hours community service. And he seems a little befuddled when Judge Smith just won't give any credit to that case out Cheyenne's District Court. Still, the COO is impressed and knows that his son has the only real lawyer in the courtroom.
--------------
Of course, these are not mutually exclusive categories. Most of these attorneys range across a number of them. While these are surely not all, they are all the categories I can think of this morning. And, none of these are based upon people I practice with now. I can, but won't, point to people in places I used to practice as models for every category above.
Wednesday, March 17, 2010
"Nobody viewing the movie should be under the illusion that they are getting a balanced representation of the issues and facts"
It seems that Gary Steuer -- the Chief Cultural Officer for the City of Philadelphia -- is a blogger, and today he has a post on the Barnes move. Because of who he is, I'm sure the Usual Suspects will dismiss his arguments out of hand, but it would be more interesting if they bothered to respond on the merits. Among the points he makes:
- "If Dr. Barnes's commitment was to education and the use of the collection to educate people about art ... isn't there a great value to being located in a facility that is much more easily accessible ...?"
- The new building "maintains the exact same arrangement of art in rooms of the same dimension, with windows and doors in exactly the same locations, and even with view through the windows onto a bucolic landscape being replicated."
- "The prohibition on lending work or removing it other than for conservation will also be maintained."
- "Because the intimate dimensions of the rooms will be preserved, there will still need to be limitations on the volume of visitors that can be accommodated per hour, but because the new building will be open many more hours than the Merion site, ... many more people will be able to access the Barnes collection than are now able to."
- "The new building will create gallery space for temporary exhibitions, which the current building lacks. ... Temporary exhibition space will allow for fascinating curatorial exploration of the Barnes collection, mounting of exhibits that might illuminate the context of the man, the art and the times ...."
- The city "is putting no capital money into the project, and has made no commitments to providing operating funding."
Still More Linkage
- Arrests in Dutch art theft.
- Stolen Gris recovered by FBI.
- Disputed Lloyd Webber Picasso to be sold at Christie's.
- "A cautionary tale."
Linkage (Gardner Heist 20th Anniversary Edition)
- Randy Kennedy.
- Derek Fincham.
- Interview with Ulrich Boser, author of "The Gardner Heist" ("If I were to speculate -- and this is raw speculation -- I believe these paintings are most likely in the Boston area, most likely the thieves have lost control of them, and maybe hid them away in an attic somewhere").
- "Twenty years without a clue."
- Providence Journal.
- AP ("It remains the most tantalizing art heist mystery in the world").
Tuesday, March 16, 2010
"The museum was less secure than the average 7-Eleven or bank that night"
Ulrich Boser thinks the Gardner theft was "probably a local job carried out by common thieves who knew the paintings were valuable and that security at the Gardner was relatively lax. ... According to a previous [Boston] Globe investigation, the Gardner was equipped with only one alarm button and two young guards."
In the News
1) Great, the youngins are going to be huff zombies.
2) Solicit a child, get 100 years.
3) If you went to prison before 1995 you are eligible for parole, but you ain't getting it.
4) If you can't be tried because you're incompetent it doesn't get you set free.
5) I don't car how stupid the other driver is - don't do this.
2) Solicit a child, get 100 years.
3) If you went to prison before 1995 you are eligible for parole, but you ain't getting it.
4) If you can't be tried because you're incompetent it doesn't get you set free.
5) I don't car how stupid the other driver is - don't do this.
Monday, March 15, 2010
You thought I was hard on "The Art of the Steal"?
The Charity Governance Blog's Jack Siegel takes it to the woodshed: "Unfortunately, the film, with all of its arrogance and hypocrisy, falls way short, doing nothing to advance the ball." Some highlights:
- "The makers of the Art of the Steal assume government officials, the local foundations, and the big hitters had an obligation to the Barnes Foundation and Dr. Barnes’ mission. That’s where the non-sequitor exists. The Pew Charitable Trusts, the City of Philadelphia, and the State of Pennsylvania had funds available to rescue the Barnes Foundation from its financial plight. None of these potential funders were obligated to use their funds to further Dr. Barnes intent. They played hardball, which was their right since it was their money that was being used or raised to rescue the collection."
- "The law is very clear in how it deals with donor intent. So long as the donor’s vision is viable, the law will respect and protect the donor’s intentions, but the law will step in when the circumstances thwart the donor’s intentions by making it impossible to carry them out. The law looks to the doctrines of cy pres and equitable deviation to address the problem. ... That’s exactly what happened in this case. The court did not have the funds to make the impossible possible. Neither did Lincoln University. Those who did have the funds put some condition on the use of their funds. That’s how the world works."
- "For us, the film raises interesting dilemmas about art and society, wealth, individual freedom, and control of heritage. Yet, in an effort to create a permanent, biased, and self-righteous record, the makers of the Art of Steal forgo an opportunity to explore these dilemmas and the contradictions they create."
In the News
1) You gotta luv local papers. Read the typical "Modern Law Enforcement in a Modern World" bit, then go down and read the comments from locals who are just going off about everything they think is wrong with law enforcement in their county.
2) Come into a Virginia house - get shot. Who needs the castle doctrine?
3) I've heard of padding a bra, but this is ridiculous.
4) Eluding arrest is not a violent crime as far the feds are concerned.
5) Good news lawyers in Virginia's Western Federal District! Soon you'll be able to tell the press what went on in that bench conference in the middle of the trial.
2) Come into a Virginia house - get shot. Who needs the castle doctrine?
3) I've heard of padding a bra, but this is ridiculous.
4) Eluding arrest is not a violent crime as far the feds are concerned.
5) Good news lawyers in Virginia's Western Federal District! Soon you'll be able to tell the press what went on in that bench conference in the middle of the trial.
R.I.P. HB1394
For those of you who don't know, HB1394 (previously addressed here) passed the House of Delegates. However, the Senate sent it straight to its Committee for Courts of Justice and passed it by indefinitely.
In case you don't speak legislativese, that means the Senate killed it.
In case you don't speak legislativese, that means the Senate killed it.
Sunday, March 14, 2010
"There is an opportunity for someone to return the paintings, become a multimillionaire, and remain confidential"
The latest approach to the Gardner heist.
Saturday, March 13, 2010
Frigon Again
The Philadelphia Inquirer's Stephan Salisbury reports that the Philadelphia Museum of Art is suing its insurer to recover for the loss of two paintings it had consigned to the now defunct Salander-O'Reilly Galleries. Two things to note.
First, as we all know, the two works the museum was trying to sell -- Maurice Prendergast's The Harbor and Arthur B. Davies' Mountain Landscape -- were of course held in the public trust by the museum, to be accessible to present and future generations.
And second, this appears to be a repeat of the Frigon case from a few years ago, in which a federal judge in Illinois held that an "all risk" insurance policy covered conversion by a gallery of consigned works. That decision was in Jan. 2007. The museum consigned the two works at issue here in late 2006.
First, as we all know, the two works the museum was trying to sell -- Maurice Prendergast's The Harbor and Arthur B. Davies' Mountain Landscape -- were of course held in the public trust by the museum, to be accessible to present and future generations.
And second, this appears to be a repeat of the Frigon case from a few years ago, in which a federal judge in Illinois held that an "all risk" insurance policy covered conversion by a gallery of consigned works. That decision was in Jan. 2007. The museum consigned the two works at issue here in late 2006.
Thursday, March 11, 2010
Do they ever stop wringing?
Kenneth Turan's generally positive review of "The Art of the Steal" ("Even if you believe that the art should stay where it is, it's hard not to wish that director Don Argott had made the film somewhat more balanced") refers to a 2004 piece by Roberta Smith -- written right after the court had approved the move -- that's really worth reading in full.
She begins by noting that the decision "has met with the usual wringing of art-world hands," but goes on to argue that "the gains may ultimately outweigh the losses." She says "the decision is a triumph of accessibility over isolation, of art over the egos of collectors and, frankly, of the urban over the suburban" and adds:
"The Barnes collection is not the Sistine Chapel ceiling. Barnes didn't make the art; he bought it, one movable object at a time. Very few things remain the same forever .... Our perceptions of artworks shift when the setting changes .... But that is one of the exhilarating things about art objects: different things can be learned from them as they move from one context to another. And most of them, after all, were originally built to move."
And one more great passage:
"[The Barnes] has been mismanaged to the point of dissolution and fought over to the point of dysfunction. It is so overburdened with restrictions - on the display of paintings, on loans, on attendance - that it has become a kind of fetish, a monument to an oppressive vision that is frozen in time, holding the art hostage. In short, the Barnes had become too much about Barnes and his vision and not enough about the art and the people who needed to see it. It seems likely that a move to Philadelphia ... could correct this imbalance to the benefit of every constituent."
As I say, read the whole thing.
She begins by noting that the decision "has met with the usual wringing of art-world hands," but goes on to argue that "the gains may ultimately outweigh the losses." She says "the decision is a triumph of accessibility over isolation, of art over the egos of collectors and, frankly, of the urban over the suburban" and adds:
"The Barnes collection is not the Sistine Chapel ceiling. Barnes didn't make the art; he bought it, one movable object at a time. Very few things remain the same forever .... Our perceptions of artworks shift when the setting changes .... But that is one of the exhilarating things about art objects: different things can be learned from them as they move from one context to another. And most of them, after all, were originally built to move."
And one more great passage:
"[The Barnes] has been mismanaged to the point of dissolution and fought over to the point of dysfunction. It is so overburdened with restrictions - on the display of paintings, on loans, on attendance - that it has become a kind of fetish, a monument to an oppressive vision that is frozen in time, holding the art hostage. In short, the Barnes had become too much about Barnes and his vision and not enough about the art and the people who needed to see it. It seems likely that a move to Philadelphia ... could correct this imbalance to the benefit of every constituent."
As I say, read the whole thing.
Wednesday, March 10, 2010
Edelman Suit
Reuters: "Asher Edelman, a former corporate raider who became an art dealer, has been sued by Emigrant Bank for more than $3.1 million after allegedly defaulting on some loans, including one to buy a sculpture by Alberto Giacometti."
Tuesday, March 9, 2010
Polaroid Collection Update
Interesting report in The Art Newspaper: "A group led by a former US magistrate judge has launched an 11th hour campaign to prevent the auction of photographs from the Polaroid collection." The group is said to be "working towards filing a motion for a rehearing at the Minnesota bankruptcy court that awarded sale rights to Sotheby’s last August." The works are scheduled to be sold at Sotheby's in New York in June.
The former magistrate judge -- Sam Joyner -- "believes that both the Delaware Bankruptcy Court that awarded transfer of the Polaroid Collection in 2002 and the Minnesota Bankruptcy Court that approved the Sotheby’s sale in 2009, 'acted without full knowledge of the restrictive language in the many and varied licence agreements'." He says "I don’t think that the number of these licence agreements was presented to [the Judge] as fully and completely as it should have been. We hope to provide them with that full knowledge. There are hundreds of photographers, and thousands of images involved."
Sotheby's responded: "On August 28, 2009 the federal bankruptcy court in St Paul approved Sotheby’s auction of approximately 1,200 works from the Polaroid Collection. Public notice of the hearing was given in the national media, and the hearing was well publicised. This order was not appealed and now has become a final order of the United States Bankruptcy Court."
And a reminder (and a call to action) from A.D. Coleman: "We should all keep in mind that, even assuming the auction by Sotheby’s goes through as planned, it includes only 1260 works out of an inventoried total of 15,936. That leaves 14,676 still in the hands of the court-appointed trustee, John R. Stoebner, for disposition. His job is to raise as much cash as he can, as quickly as he can, to settle the debts Tom Petters left in his wake. It’s a safe bet that Stoebner would much prefer to sell that entire collection, quickly, to a single buyer, and is prepared to negotiate. ... In short, we need to help the trustee find this collection — complete as is, or minus the auction selection but otherwise intact — a good new home."
See here for background.
The former magistrate judge -- Sam Joyner -- "believes that both the Delaware Bankruptcy Court that awarded transfer of the Polaroid Collection in 2002 and the Minnesota Bankruptcy Court that approved the Sotheby’s sale in 2009, 'acted without full knowledge of the restrictive language in the many and varied licence agreements'." He says "I don’t think that the number of these licence agreements was presented to [the Judge] as fully and completely as it should have been. We hope to provide them with that full knowledge. There are hundreds of photographers, and thousands of images involved."
Sotheby's responded: "On August 28, 2009 the federal bankruptcy court in St Paul approved Sotheby’s auction of approximately 1,200 works from the Polaroid Collection. Public notice of the hearing was given in the national media, and the hearing was well publicised. This order was not appealed and now has become a final order of the United States Bankruptcy Court."
And a reminder (and a call to action) from A.D. Coleman: "We should all keep in mind that, even assuming the auction by Sotheby’s goes through as planned, it includes only 1260 works out of an inventoried total of 15,936. That leaves 14,676 still in the hands of the court-appointed trustee, John R. Stoebner, for disposition. His job is to raise as much cash as he can, as quickly as he can, to settle the debts Tom Petters left in his wake. It’s a safe bet that Stoebner would much prefer to sell that entire collection, quickly, to a single buyer, and is prepared to negotiate. ... In short, we need to help the trustee find this collection — complete as is, or minus the auction selection but otherwise intact — a good new home."
See here for background.
Leibovitz Latest
Randy Kennedy in the NYT: "The photographer Annie Leibovitz ... has reached an agreement with Colony Capital, a Los Angeles firm, to help her restructure her debt .... Under the deal, Colony — which manages about $30 billion in assets, mostly in real estate — will become Ms Leibovitz’s only creditor .... Ms. Leibovitz averted a foreclosure last summer after she missed a deadline to repay $24 million in loans she owed to Art Capital Group .... Colony, which also controls the rights to the Neverland Ranch in California, ... plans to manage sales of Ms. Leibovitz’s photographic holdings and pursue other business ventures for her so that she can concentrate on her career."
Felix Salmon says it's a smart move for Leibovitz: "[Colony's] unlikely to start foreclosing on her assets in the way that Art Capital is prone to do. Technically, this is a debt deal: Colony has bought Art Capital’s loan. But my guess is that Colony is looking at it more like an equity deal: they expect to work with Leibovitz to start generating an income stream for both of them which is going to last more or less indefinitely."
Felix Salmon says it's a smart move for Leibovitz: "[Colony's] unlikely to start foreclosing on her assets in the way that Art Capital is prone to do. Technically, this is a debt deal: Colony has bought Art Capital’s loan. But my guess is that Colony is looking at it more like an equity deal: they expect to work with Leibovitz to start generating an income stream for both of them which is going to last more or less indefinitely."
RIP Virginia Appellate Defender's Office
Casualty of the budget shortfall.
There doesn't appear to be a way to link to an exact post so I point you to the 09 March 2010 post.
There doesn't appear to be a way to link to an exact post so I point you to the 09 March 2010 post.
In the News
1) Well, it's been 25+ years and kids are still bringing guns to my high school.
2) Kentucky about to approve death penalty method.
3) He shot at his mother 20 times.
2) Kentucky about to approve death penalty method.
3) He shot at his mother 20 times.
Monday, March 8, 2010
On Outlaws
I've been meaning to mention Sonia Katyal and Eduardo M. Penalver's Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership, and I now see that they've posted the introduction online here. Here's the abstract:
"Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.
"The authors employ wide-ranging examples of the behaviors of 'property outlaws' - the trespasser, squatter, pirate, or file-sharer-to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of 'property outlaws' and legal innovation should be cultivated in order to maintain this avenue of legal reform."
"Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.
"The authors employ wide-ranging examples of the behaviors of 'property outlaws' - the trespasser, squatter, pirate, or file-sharer-to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of 'property outlaws' and legal innovation should be cultivated in order to maintain this avenue of legal reform."
Off the Wagon
I know I said I would take a break from "The Art of the Steal," but a few interesting pieces appeared over the weekend that are worth noting.
First, in the Philadelphia Inquirer, Barnes chairman Bernard Watson says the film is an example of "voodoo history": "The film would have the public believe that the Philadelphia philanthropic community, the Barnes' trustees, the Commonwealth of Pennsylvania, the Philadelphia Museum of Art, and The Inquirer itself, were all engaged in a conspiracy hatched well over a decade ago to 'steal' the collection . . . ." But: "As has always been the case, the collection belongs to the Barnes Foundation, and no one else. You can't 'steal' something that you already own."
He concludes: "One thing is perfectly clear. You can never influence the opinion of those who would prefer to believe in a 'vast conspiracy' rather than face reality. The Barnes Foundation was on the brink of bankruptcy, and those who came to its help do not deserve to be vilified, but should be praised for their extraordinary public service."
Also in the Inquirer, classical music critic Peter Dobrin, who believes that "something will be lost" in the move, nevertheless labels the film "documentary-as-propaganda": "The aim here isn't balanced exposition so much as a sharp elevation of the viewer's blood pressure." (He later points out that "the menacing music is more appropriate to an exposé of a military junta than the moving of an art collection.") And he notes some of the many contradictions in the movie:
"The Art of the Steal rails against the commercialization of art, yet repeatedly marvels at how many billions of dollars the Barnes Foundation is worth.
"The film bristles at the power and elitism of the Art Establishment. Opponents of the Barnes' move to the Parkway, however, manage to come across as just elitists of another stripe.
"Talkers state their case as one that unfolded with the media asleep at the switch. Yet they repeatedly rely on facts uncovered by - the media. Without slow pans across newspaper clips, half the film's suspense would drain away."
He also says "I would never rate one kind of art-viewing experience as superior to another, yet this film presumes a hierarchy of experiences - Barnes acolytes get moral authority, everyone else not so much." (Some related thoughts here.)
Finally, the Washington Post's Philip Kennicott uses the film as a springboard to examine the issue of one-sided documentaries generally. First, here's how he summarizes the history that led to the move:
"The Barnes indenture ... was fatally misconceived, with crippling limits on how his money could be invested. Quixotic and even irresponsible management drove the foundation near the point of insolvency, which is when Pew and other foundations stepped in. Working with the Barnes Foundation board of directors ... the groups helped save the foundation from financial ruin. But they're also helping with a move into a new home under construction on the Benjamin Franklin Parkway, where it will be more accessible (scheduled to open in 2012)."
He then moves on to the question of what documentary filmmakers owe their viewers in the way of balance. He quotes the film's director, Don Argott, as saying "we never positioned ourselves as people who were hostile and had any agenda," and says in reply:
"But his film is hostile and has an agenda. It uses a well-developed set of polemical techniques -- ominous music, imputations of dark motives, ad hominem interviews -- to connect only the dots that make its case. . . . In many cases, films about evil -- genocide, torture, bigotry -- don't include 'the other side' because the other side deserves no hearing. Argott's film is different. There is another side that needs to be heard, and the truth of the larger Barnes drama lies between them."
First, in the Philadelphia Inquirer, Barnes chairman Bernard Watson says the film is an example of "voodoo history": "The film would have the public believe that the Philadelphia philanthropic community, the Barnes' trustees, the Commonwealth of Pennsylvania, the Philadelphia Museum of Art, and The Inquirer itself, were all engaged in a conspiracy hatched well over a decade ago to 'steal' the collection . . . ." But: "As has always been the case, the collection belongs to the Barnes Foundation, and no one else. You can't 'steal' something that you already own."
He concludes: "One thing is perfectly clear. You can never influence the opinion of those who would prefer to believe in a 'vast conspiracy' rather than face reality. The Barnes Foundation was on the brink of bankruptcy, and those who came to its help do not deserve to be vilified, but should be praised for their extraordinary public service."
Also in the Inquirer, classical music critic Peter Dobrin, who believes that "something will be lost" in the move, nevertheless labels the film "documentary-as-propaganda": "The aim here isn't balanced exposition so much as a sharp elevation of the viewer's blood pressure." (He later points out that "the menacing music is more appropriate to an exposé of a military junta than the moving of an art collection.") And he notes some of the many contradictions in the movie:
"The Art of the Steal rails against the commercialization of art, yet repeatedly marvels at how many billions of dollars the Barnes Foundation is worth.
"The film bristles at the power and elitism of the Art Establishment. Opponents of the Barnes' move to the Parkway, however, manage to come across as just elitists of another stripe.
"Talkers state their case as one that unfolded with the media asleep at the switch. Yet they repeatedly rely on facts uncovered by - the media. Without slow pans across newspaper clips, half the film's suspense would drain away."
He also says "I would never rate one kind of art-viewing experience as superior to another, yet this film presumes a hierarchy of experiences - Barnes acolytes get moral authority, everyone else not so much." (Some related thoughts here.)
Finally, the Washington Post's Philip Kennicott uses the film as a springboard to examine the issue of one-sided documentaries generally. First, here's how he summarizes the history that led to the move:
"The Barnes indenture ... was fatally misconceived, with crippling limits on how his money could be invested. Quixotic and even irresponsible management drove the foundation near the point of insolvency, which is when Pew and other foundations stepped in. Working with the Barnes Foundation board of directors ... the groups helped save the foundation from financial ruin. But they're also helping with a move into a new home under construction on the Benjamin Franklin Parkway, where it will be more accessible (scheduled to open in 2012)."
He then moves on to the question of what documentary filmmakers owe their viewers in the way of balance. He quotes the film's director, Don Argott, as saying "we never positioned ourselves as people who were hostile and had any agenda," and says in reply:
"But his film is hostile and has an agenda. It uses a well-developed set of polemical techniques -- ominous music, imputations of dark motives, ad hominem interviews -- to connect only the dots that make its case. . . . In many cases, films about evil -- genocide, torture, bigotry -- don't include 'the other side' because the other side deserves no hearing. Argott's film is different. There is another side that needs to be heard, and the truth of the larger Barnes drama lies between them."
More on Charitable Deductions
GW lawprof Sarah Lawsky on Obama's itemized deduction proposal:
"Won't this proposal reduce charitable giving? The short answer is: almost certainly yes, though the degree to which it would do so is debated. The Center on Budget and Policy Priorities, for example, thinks the effect would be small; others are more concerned. Jon Bakija and Bradley Heim, How Does Charitable Giving Respond to Incentives and Income? Dynamic Panel Estimates Accounting for Predictable Changes in Taxation, discusses the more general question of the price elasticity of charitable giving."
Daniel Grant recently discussed this issue at the Huffington Post.
"Won't this proposal reduce charitable giving? The short answer is: almost certainly yes, though the degree to which it would do so is debated. The Center on Budget and Policy Priorities, for example, thinks the effect would be small; others are more concerned. Jon Bakija and Bradley Heim, How Does Charitable Giving Respond to Incentives and Income? Dynamic Panel Estimates Accounting for Predictable Changes in Taxation, discusses the more general question of the price elasticity of charitable giving."
Daniel Grant recently discussed this issue at the Huffington Post.
The Economics of Fakes
Mark Durney had an interesting post on the subject over the weekend, with links to David Gill ("forgeries have corrupted collections for centuries") and Bruno Frey ("the harmful effects of fakes are small and mitigated by emerging institutions (guarantees, sellers with reputation)").
House Bill 1394
No. I DO NOT know what the final disposition of HB1394 will be. HB1393, which was basically the same bill, was voted down in committee after the governor asked for it and the majority leader introduced it. Five days later it was reintroduced by a very junior Delegate - again at the governor's request. Here's the history as the General Assembly's website has it this morning.
And now to address all the points which I've been told by various people over the last two weeks:
Yes, I realize this law will require Commonwealth Attorneys to know everything about a case at the initial court appearance, which will probably mean that smaller offices will just have to leave blanket notices with the judge that they will prosecute everything. Larger offices may be able to assign one assistant commonwealth attorney as some sort of intake officer either sitting at the magistrate office or getting a list every morning from the magistrate and calling officers trying to get information on the cases.
Yes, I also realize what this will do to the defense bar. If it works as intended it will cut out a lot of low level cases which will make it even harder for new attorneys to start doing criminal defense work. It will also make it harder for people who rely on the misdemeanor appointed cases to flesh out their income and force more people to try to get felony cases, thus making money scarcer for everyone. Yes, I've heard the rumor that waivers are not being funded this year, meaning that felonies - especially jury trials and serious offenses such as non-capital murder - are going to become money drains again (subject once again to the hard fee cap). No, I do not know how long it will take for the lawsuit to gear back up.
Yes, I realize this will end up with a lot of people convicted of 1st or 2d offenses without knowledge that a subsequent conviction will carry mandatory jail/prison time.
-------
Interestingly, this bill now comes with an expiration date: 01 July 2013.
[addendum] Generally I would avoid something like this like the plague because it is too political. However, I keep getting the same questions and arguments over and over about this bill, so I wanted to put it out what little knowledge I have for everyone to see. I do not have any great insider knowledge about any of this and suggest that you go to one of the Virginia political blogs if you are looking for an indepth political discussion of this matter.
.
Summary as introduced:I cannot find a similar bill in the Senate and, as the Senators and Delegates seem to have extremely different views of how to balance the budget, do not know if it could pass a vote in the Senate. We'll know in the next week or so.
Appointment of counsel; imposition of penalty of incarceration in certain misdemeanor cases. Provides that if a criminal charge against an accused is a misdemeanor or in a class of misdemeanors the penalty for which may be incarceration, a penalty of incarceration may be imposed and an attorney appointed by a court in the case of indigence if the prosecuting attorney advises the court that incarceration remains an option in such class of cases, or in the instant case. The bill also provides that if the prosecuting attorney advises the court that he waives the option of the imposition of a sentence of incarceration in such case or class of cases, the court shall try the case without appointing counsel, and in such event no sentence of incarceration shall be imposed.
Full text:
02/24/10 House: Presented and ordered printed 10105541D pdf
03/03/10 House: Committee substitute printed 10105748D-H1 pdf
Status:
02/24/10 House: Introduced at the request of Governor
02/24/10 House: Presented and ordered printed 10105541D
02/24/10 House: Referred to Committee for Courts of Justice
02/25/10 House: Assigned Courts sub: #1 Criminal
03/03/10 House: Reported from Courts of Justice with substitute (14-Y 5-N)
03/03/10 House: Committee substitute printed 10105748D-H1
03/03/10 House: Referred to Committee on Appropriations
03/04/10 House: Assigned App. sub: General Government
And now to address all the points which I've been told by various people over the last two weeks:
Yes, I realize this law will require Commonwealth Attorneys to know everything about a case at the initial court appearance, which will probably mean that smaller offices will just have to leave blanket notices with the judge that they will prosecute everything. Larger offices may be able to assign one assistant commonwealth attorney as some sort of intake officer either sitting at the magistrate office or getting a list every morning from the magistrate and calling officers trying to get information on the cases.
Yes, I also realize what this will do to the defense bar. If it works as intended it will cut out a lot of low level cases which will make it even harder for new attorneys to start doing criminal defense work. It will also make it harder for people who rely on the misdemeanor appointed cases to flesh out their income and force more people to try to get felony cases, thus making money scarcer for everyone. Yes, I've heard the rumor that waivers are not being funded this year, meaning that felonies - especially jury trials and serious offenses such as non-capital murder - are going to become money drains again (subject once again to the hard fee cap). No, I do not know how long it will take for the lawsuit to gear back up.
Yes, I realize this will end up with a lot of people convicted of 1st or 2d offenses without knowledge that a subsequent conviction will carry mandatory jail/prison time.
-------
Interestingly, this bill now comes with an expiration date: 01 July 2013.
[addendum] Generally I would avoid something like this like the plague because it is too political. However, I keep getting the same questions and arguments over and over about this bill, so I wanted to put it out what little knowledge I have for everyone to see. I do not have any great insider knowledge about any of this and suggest that you go to one of the Virginia political blogs if you are looking for an indepth political discussion of this matter.
.
In the News
1) Robbing a German poker tournament in the middle of the day.
2) No tweeting for jurors.
3) How bad must this guy's fake DEA outfit have been?
4) A regional jail gone bad in Kentucky?
5) The article doesn't really tell us what happened, but the comments are interesting. Did Lexington police wake a drunk guy at night in his room in the fraternity house and then arrest him for resisting? Will the whole thing get swept under the rug?
2) No tweeting for jurors.
3) How bad must this guy's fake DEA outfit have been?
4) A regional jail gone bad in Kentucky?
5) The article doesn't really tell us what happened, but the comments are interesting. Did Lexington police wake a drunk guy at night in his room in the fraternity house and then arrest him for resisting? Will the whole thing get swept under the rug?
Friday, March 5, 2010
More Fresno Fallout
The Fresno Bee reports: "The son and daughter-in-law of famed nature photographer Ansel Adams have filed a civil complaint in Fresno County Superior Court to prevent six of Adams' prints from being auctioned off by the Fresno Metropolitan Museum."
The background: "The Met closed in January and already has auctioned off tools, office equipment and other items to raise money to pay creditors. An art auction is planned for a later date. . . . Museum officials have said proceeds from the two auctions will go toward paying the Met's debts, estimated at about $4 million."
The background: "The Met closed in January and already has auctioned off tools, office equipment and other items to raise money to pay creditors. An art auction is planned for a later date. . . . Museum officials have said proceeds from the two auctions will go toward paying the Met's debts, estimated at about $4 million."
Thursday, March 4, 2010
Gardner Theft News (UPDATED)
The Boston Globe: "On the eve of the 20th anniversary of the theft of masterpieces from the Isabella Stewart Gardner Museum, the FBI is resubmitting evidence taken from the crime scene for DNA analysis in hope of gaining a long-sought break in the case."
UPDATE: Some thoughts from Art Theft Central's Mark Durney.
UPDATE: Some thoughts from Art Theft Central's Mark Durney.
Wednesday, March 3, 2010
Steal Away
I ran into a friend, and loyal reader of the blog, this morning, who immediately said: "Okay, okay, we get it: the movie isn't any good!"
Point taken, and so let's take a break from The Art of the Steal for a while (though I reserve the right to come back to it if someone has something especially interesting to say about it). How about a little more on the Gaylord fair use decision (mentioned last week here)?
Pitt's Mike Madison says: "The standard for 'transformativeness' that I extract from Campbell v. Acuff-Rose Music is whether a changed message based on the original work 'reasonably could be perceived.' Has the Federal Circuit ... substitute[d] its own artistic sensibility, and its implicit skepticism that a photograph of a three-dimensional object ever could be transformative, for that of an audience of reasonable stamp-buyers?"
In the comments, Marquette's Bruce Boyden says the fair use issue "is difficult, particularly under existing law. 1) There are lots of cases out there that seem to suggest that putting an artwork somewhere in the frame is not fair use as long as the artwork is recognizable (the Seven case, the pinball case, Ringgold, Woods, the Devil’s Advocate case). If that’s the test the government loses."
In response to which Madison concedes that "if you follow those fair use cases, then I agree that the doctrinal question is closer than I’ve made it out to be." But he maintains that "the cases themselves, in my view, are almost all badly decided and in some cases badly reasoned."
Point taken, and so let's take a break from The Art of the Steal for a while (though I reserve the right to come back to it if someone has something especially interesting to say about it). How about a little more on the Gaylord fair use decision (mentioned last week here)?
Pitt's Mike Madison says: "The standard for 'transformativeness' that I extract from Campbell v. Acuff-Rose Music is whether a changed message based on the original work 'reasonably could be perceived.' Has the Federal Circuit ... substitute[d] its own artistic sensibility, and its implicit skepticism that a photograph of a three-dimensional object ever could be transformative, for that of an audience of reasonable stamp-buyers?"
In the comments, Marquette's Bruce Boyden says the fair use issue "is difficult, particularly under existing law. 1) There are lots of cases out there that seem to suggest that putting an artwork somewhere in the frame is not fair use as long as the artwork is recognizable (the Seven case, the pinball case, Ringgold, Woods, the Devil’s Advocate case). If that’s the test the government loses."
In response to which Madison concedes that "if you follow those fair use cases, then I agree that the doctrinal question is closer than I’ve made it out to be." But he maintains that "the cases themselves, in my view, are almost all badly decided and in some cases badly reasoned."
Tuesday, March 2, 2010
"It weighs over 100 kilograms which leads us to believe that this is an organised heist, possibly even some kind of artist performance"
The Art Newspaper reports: "A huge banner by the Russian art collective AES+F was stolen last week when technicians at the Witte de With Centre for Contemporary Art in Rotterdam removed the work from the building façade."
"The idea of a 'theft' requires that the 'thing' stolen is actually taken from someone"
Barnes Foundation general counsel Brett Miller has a letter to the editor of the Philadelphia Daily News, in response to their review of "The Art of the Steal." He says:
"The basic allegation of the film ... is that the Barnes collection was somehow 'hijacked' or 'stolen.' The idea of a 'theft' requires that the 'thing' stolen is actually taken from someone. The reality is that the Barnes board remains in control of the foundation; no members of the Pew Charitable Trust, Annenberg or Lenfest Foundation serve on the board, and Lincoln University nominees represent more than a third of the board."
It is strange how it's not enough for some people to say "I disagree with the decision the board made to move the collection to Philadelphia." Instead it has to be THEFT CONSPIRACY ELEVENTY. As Miller points out, the theft-ists' story is that the Barnes board, in voting to move four-and-a-half miles down the road, stole the museum from . . . um, I'm not sure who exactly. The whole thing is kind of incoherent, really.
(I add here my usual disclaimer that I would have preferred to see the museum stay in Merion.)
"The basic allegation of the film ... is that the Barnes collection was somehow 'hijacked' or 'stolen.' The idea of a 'theft' requires that the 'thing' stolen is actually taken from someone. The reality is that the Barnes board remains in control of the foundation; no members of the Pew Charitable Trust, Annenberg or Lenfest Foundation serve on the board, and Lincoln University nominees represent more than a third of the board."
It is strange how it's not enough for some people to say "I disagree with the decision the board made to move the collection to Philadelphia." Instead it has to be THEFT CONSPIRACY ELEVENTY. As Miller points out, the theft-ists' story is that the Barnes board, in voting to move four-and-a-half miles down the road, stole the museum from . . . um, I'm not sure who exactly. The whole thing is kind of incoherent, really.
(I add here my usual disclaimer that I would have preferred to see the museum stay in Merion.)
In the News
1) Virginia doesn't grant many geriatric paroles. (there's a shock for you)
2) Virginia Supreme Court in the News: A person can't be thrown out of a drug program and convicted without a hearing on his expulsion. Not sure how I feel on this one. As long as the plea agreement between the Commonwealth and the defendant remains in place (usually = complete program or get 6 months) I don't have too much of a problem with it. If a person was kicked out for something ridiculous like wearing purple socks, he should have a chance to complete the program. Of course, it won't be used that way. Every time some Yahoo gets dumped out of a program because he tested dirty 5 times or slugged a counselor he'll be in court arguing that the plea agreement is too harsh and some judges will violate the terms of the plea.
3) One of the many ways the Virginia General Assembly is considering balancing the budget is to raise filing fees, but not everybody's happy about it.
4) Who knew Starbucks was gun friendly? Of course, the nearest is two hours and two states away, so I shan't be testing this out any time soon.
2) Virginia Supreme Court in the News: A person can't be thrown out of a drug program and convicted without a hearing on his expulsion. Not sure how I feel on this one. As long as the plea agreement between the Commonwealth and the defendant remains in place (usually = complete program or get 6 months) I don't have too much of a problem with it. If a person was kicked out for something ridiculous like wearing purple socks, he should have a chance to complete the program. Of course, it won't be used that way. Every time some Yahoo gets dumped out of a program because he tested dirty 5 times or slugged a counselor he'll be in court arguing that the plea agreement is too harsh and some judges will violate the terms of the plea.
3) One of the many ways the Virginia General Assembly is considering balancing the budget is to raise filing fees, but not everybody's happy about it.
4) Who knew Starbucks was gun friendly? Of course, the nearest is two hours and two states away, so I shan't be testing this out any time soon.
USSC Cases from February
Right to Remain Silent
EXPIRATION OF ASSERTED RIGHT: Maryland v. Shatzer, FEB10, USSC No.08–680: (1) Once a suspect asserts his right to not speak or have an attorney present and he is released from “Miranda custody” the police cannot ask the suspect to waive his Miranda rights for 14 days. (2) Being in prison after a conviction does not count as “Miranda custody.” (3) The decision hints that being in jail awaiting trial is “Miranda custody.”
Florida v. Powell, FEB10, USSC No. 08–1175: “You have the right to talk to a lawyer before answering any of our questions. . . You have the right to use any of these rights at any time you want during this interview” told the suspect that he could demand his lawyer before answering any particular question – not just before any questions were asked.
Jury
Thaler v. Haynes, FEB10, USSC No. 09–273: In deciding a Batson motion, a judge does not need to have observed the behavior proffered as the reason for the strike.
Cruel & Unusual Punishment
Wilkins v. Gaddy, FEB10, USSC No. 08–10914: (1) The amount of harm done to a prisoner does not determine whether a beating by guards was cruel and unusual. (2) The amount of harm is relevant evidence as to whether the claimed beating is plausible.
EXPIRATION OF ASSERTED RIGHT: Maryland v. Shatzer, FEB10, USSC No.08–680: (1) Once a suspect asserts his right to not speak or have an attorney present and he is released from “Miranda custody” the police cannot ask the suspect to waive his Miranda rights for 14 days. (2) Being in prison after a conviction does not count as “Miranda custody.” (3) The decision hints that being in jail awaiting trial is “Miranda custody.”
Florida v. Powell, FEB10, USSC No. 08–1175: “You have the right to talk to a lawyer before answering any of our questions. . . You have the right to use any of these rights at any time you want during this interview” told the suspect that he could demand his lawyer before answering any particular question – not just before any questions were asked.
Jury
Thaler v. Haynes, FEB10, USSC No. 09–273: In deciding a Batson motion, a judge does not need to have observed the behavior proffered as the reason for the strike.
Cruel & Unusual Punishment
Wilkins v. Gaddy, FEB10, USSC No. 08–10914: (1) The amount of harm done to a prisoner does not determine whether a beating by guards was cruel and unusual. (2) The amount of harm is relevant evidence as to whether the claimed beating is plausible.
Monday, March 1, 2010
"Any argument that the Barnes shouldn't move needs to explain how and why Judge Ott arrived at his fateful, wrongful decision. . . ."
" . . . It's a task that Argott has unaccountably side-stepped."
Lee Rosenbaum posts Part 2 of her review of "The Art of the Steal."
Lee Rosenbaum posts Part 2 of her review of "The Art of the Steal."
What's the Expiration Date on a Constitutionally Guaranteed Right?
14 days.
Yes, you heard it first here folks, constitutional rights have a shelf life of 14 days.
So sayeth the Nine Great Legal Minds in Washington.
BUT WAIT, there's more! We now have two different kinds of custody. There's custody custody and there's Miranda custody. But custody custody might be Miranda custody if the custody custody is pretrial custody custody rather than post conviction custody custody.
It's all in Maryland v. Shatzer, handed down from the Mount last Wednesday. I'm not going to quote from the case because it engages in childish tit-for-tat with the concurrence and feeds us this gigantic imaginary straw man in order to justify itself. So, I'll just summarize the decision as my meager intellect is able to parse it.
Suspect was in a prison, serving a sentence, when an officer came to question him about an unrelated crime. Suspect asserted his right to an attorney and police officer left. Two and a half years later another police officer, prompted by some new evidence, spoke to Suspect, who was still in prison. Suspect waived his Miranda rights and made inculpatory statements leading to a new conviction. He tried to assert that his demand for an attorney to the first officer was still in effect because they'd both questioned him about the same crime and he'd never been out of custody in between.
The Supreme Court picks a totally arbitrary number out of thin air and decides that if a suspect has asserted his right to an attorney that the assertion only lasts for 14 days. After that point officers can go back and talk to the suspect again, asking him if he's willing to waive his right now. Then, if the suspect says no, the officers must wait 14 days. After that point officers can go back and talk to the suspect again, asking him if he's willing to waive his right now. Repeat ad infinitum.
As to suspect being in custody the entire time, the Court decided that he wasn't really in Miranda custody because the officers questioning him had nothing to do with the conditions under which the suspect lived his everyday life. The officers only controlled his life for that period of time they called him into a room to question him.
A part of the opinion talks about how the prior decisions in this area had all been related to pretrial custody. There's an implication that pretrial custody is Miranda custody because the matter has not been decided yet and a discussion with an officer could impact the ongoing case. However, all the cases cited seem to fall within the 14 day ban. Therefore, I'm not sure that pretrial custody is Miranda custody. I'm going to go out on a limb here and say we're going to see further litigation on this point.
MY ANALYSIS:
Let the games commence!
Actually, I'm in general agreement with the Court here. There is going to be some point where an original assertion of the right to an attorney no longer applies. For instance, if a suspect asserts his right while being questioned about a mugging, it shouldn't keep the police from questioning him about a totally unrelated murder a week later. On the same charge, I'm a little more leery than the Court. Every 14 days is just setting us up for years of further litigation. Nobody's going to go back every 14 days over a shoplifting, but in important cases that doorbell's going to be rung every 14 days like clockwork. The primary, but unprovable, suspect had best set aside the day every two weeks that officers are going to show up wherever he is. The next fight is going to be over whether 5 straight assertions of the right are enough to make it permanent, or 10, or 25, or . . . ?
If the Court had set this at a year or 6 months it would feel more like a right defended. As it is, it feels like a right begrudged.
And, yes, before anyone asks me, I will tell the officers in my County about the new rule. The courts and legislatures set the rules. We attorneys read and interpret the rules. Police have to live by them. I do my best to let them know what the rules are (even when the line keeps shifting).
Yes, you heard it first here folks, constitutional rights have a shelf life of 14 days.
So sayeth the Nine Great Legal Minds in Washington.
BUT WAIT, there's more! We now have two different kinds of custody. There's custody custody and there's Miranda custody. But custody custody might be Miranda custody if the custody custody is pretrial custody custody rather than post conviction custody custody.
It's all in Maryland v. Shatzer, handed down from the Mount last Wednesday. I'm not going to quote from the case because it engages in childish tit-for-tat with the concurrence and feeds us this gigantic imaginary straw man in order to justify itself. So, I'll just summarize the decision as my meager intellect is able to parse it.
Suspect was in a prison, serving a sentence, when an officer came to question him about an unrelated crime. Suspect asserted his right to an attorney and police officer left. Two and a half years later another police officer, prompted by some new evidence, spoke to Suspect, who was still in prison. Suspect waived his Miranda rights and made inculpatory statements leading to a new conviction. He tried to assert that his demand for an attorney to the first officer was still in effect because they'd both questioned him about the same crime and he'd never been out of custody in between.
The Supreme Court picks a totally arbitrary number out of thin air and decides that if a suspect has asserted his right to an attorney that the assertion only lasts for 14 days. After that point officers can go back and talk to the suspect again, asking him if he's willing to waive his right now. Then, if the suspect says no, the officers must wait 14 days. After that point officers can go back and talk to the suspect again, asking him if he's willing to waive his right now. Repeat ad infinitum.
As to suspect being in custody the entire time, the Court decided that he wasn't really in Miranda custody because the officers questioning him had nothing to do with the conditions under which the suspect lived his everyday life. The officers only controlled his life for that period of time they called him into a room to question him.
A part of the opinion talks about how the prior decisions in this area had all been related to pretrial custody. There's an implication that pretrial custody is Miranda custody because the matter has not been decided yet and a discussion with an officer could impact the ongoing case. However, all the cases cited seem to fall within the 14 day ban. Therefore, I'm not sure that pretrial custody is Miranda custody. I'm going to go out on a limb here and say we're going to see further litigation on this point.
MY ANALYSIS:
Let the games commence!
Actually, I'm in general agreement with the Court here. There is going to be some point where an original assertion of the right to an attorney no longer applies. For instance, if a suspect asserts his right while being questioned about a mugging, it shouldn't keep the police from questioning him about a totally unrelated murder a week later. On the same charge, I'm a little more leery than the Court. Every 14 days is just setting us up for years of further litigation. Nobody's going to go back every 14 days over a shoplifting, but in important cases that doorbell's going to be rung every 14 days like clockwork. The primary, but unprovable, suspect had best set aside the day every two weeks that officers are going to show up wherever he is. The next fight is going to be over whether 5 straight assertions of the right are enough to make it permanent, or 10, or 25, or . . . ?
If the Court had set this at a year or 6 months it would feel more like a right defended. As it is, it feels like a right begrudged.
And, yes, before anyone asks me, I will tell the officers in my County about the new rule. The courts and legislatures set the rules. We attorneys read and interpret the rules. Police have to live by them. I do my best to let them know what the rules are (even when the line keeps shifting).
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