Sports and the Law: Will Ben Roethlisberger’s NFL Suspension Stand?

On Wednesday, Pittsburgh Steelers quarterback Ben Roethlisberger became the first NFL player never charged or convicted of any crime to be suspended under the NFL Personal Conduct Policy. According to Commissioner Roger Goodell, the decision to suspend Roethlisberger was the result of “some bad decisions” that Roethlisberger made in recent weeks, which emerged during the Georgia police’s investigation of him for sexual assault.

Allegations of sexual assault are not to be taken lightly. However, not all such allegations are true. (See the Duke Lacrosse scandal). And, whether Roger Goodell even has the power to suspend a player where no criminal wrongdoing is found is questionable. The issue depends entirely upon how one interprets a few important clauses in the NFL Collective Bargaining Agreement…

For starters, while Commissioner Goodell claims to have the power to suspend Roethlisberger under the NFL Personal Conduct Policy, whether the NFL Personal Conduct Policy is even part of the NFL Collective Bargaining Agreement (“CBA”) is not entirely clear. NFL club-owners announced the league’s current Personal Conduct Policy on April 10, 2007, which postdates the most recent CBA. While the NFL Personal Conduct Policy was informally approved by a group of NFL players, the NFL Personal Conduct Policy was never written and signed into the CBA (at least not according to publicly available information). This may present a problem for Commissioner Goodell’s enforcement of the NFL Personal Conduct Policy because Article LV, Section 19 of the NFL CBA states that “[n]one of the Articles of this Agreement may be changed, altered, or amended other than by a signed written agreement.”

Meanwhile, even presuming the NFL Personal Conduct Policy is not part of the NFL Collective Bargaining Agreement, Commissioner Goodell may still argue that Paragraph 15 of the NFL Player Contract allows him to suspend Roethlisberger for “being deemed guilty of any other conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football.” Paragraph 15 of the NFL Player Contract is part of the CBA, as it is incorporated by reference as Appendix C. However, it is not clear that Ben Roethlisberger has done anything “detrimental to the League or professional football” (most of this conduct relates to gambling or using/distributing drugs) nor is it clear that he is in any way “guilty” as the term may be defined by that paragraph.

Finally, it is worth noting that Paragraph 11 of the NFL Player Contract grants individual club owners the power to terminate any player contract if that player “is engaged in personal conduct, reasonably judged by [the club] to adversely affect or reflect on [the club].” This clause seems to be far broader than Paragraph 15 of the NFL Player Contract and may present grounds for the Steelers to terminate Roethlisberger’s contract. However, this clause extends only to a player’s team, and not to the Commissioner, who is acting on behalf of the league overall.

Thus, Ben Roethlisberger may have strong grounds to challenge Commissioner Goodell’s suspension in court (after a bizarre, required appeal to the Commissioner himself), either by alleging his suspension is arbitrary and capricious in light of the collective bargaining agreement, or arguing that the suspension is an illegal group boycott of his services under Section 1 of the Sherman Act (a claim that is far stronger in some circuits than others).

constitutional law: an overview

The broad topic of constitutional law deals with the interpretation and implementation of the United States Constitution. As the Constitution is the foundation of the United States, constitutional law deals with some of the fundamental relationships within our society. This includes relationships among the states, the states and the federal government, the three branches (executive, legislative, judicial) of the federal government, and the rights of the individual in relation to both federal and state government. The area of judicial review is an important subject within Constitutional Law. The Supreme Court has played a crucial role in interpreting the Constitution. Consequently, study of Constitutional Law focuses heavily on Supreme Court rulings.

While the topic also covers the interpretation and implementation of state constitutions, without qualification it is usually understood as referring to the Federal Constitution.

The Constitution establishes the three branches of the federal government and enumerates their powers. Article I establishes the House of Representatives and the Senate. See U.S. Const. art. I. Section 8 enumerates the powers of Congress. See U.S. Const. art. I., § 8. Congress has specifically used its power to regulate commerce (the commerce clause) with foreign nations and among the states to enact broad and powerful legislation throughout the nation. The sixteenth Amendment gives Congress the power to collect a national income tax without apportioning it among the states. See U.S. Const. amend. XVI. Section 9 of Article I prohibits Congress from taking certain actions. See U.S. Const. art. I, §9. For example, until the passage of the 16th Amendment Congress could not directly tax the people of the United States unless it was proportioned to the population of each state. See U.S. Const. art. I, § 9. Section 10 of Article I lists a number of specific actions that individual states may no longer take. U.S. Const. art. I, § 10.

Article II of the Constitution establishes the presidency and the executive branch of government. The powers of the President are not as clearly enumerated as those of the Congress. He is vested with the "executive" power by section 1. See U.S. Const. art. II, § 1. Section 2 establishes him as the "commander and chief" and grants him power to give pardons, except in cases of impeachment, for offenses against the United States. See U.S. Const. art. II, § 2. Section 3 provides the power to make treaties (with the advice and consent of two-thirds of the Senate) and the power to nominate ambassadors, ministers, Judges of the Supreme Court, and all other Officers of the United States. See U.S. Const. art. II, § 3.

The role of the Supreme Court and the rest of the judicial branch of the federal government is covered by Article III. See U.S. Const. art. III, § 2.

Article V of the Constitution provides the procedures to be followed to amend the Constitution. See U.S. Const. article V. Currently, the Constitution has been amended twenty-seven times (including the Bill of Rights).

Article VI of The United States Constitution states that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all treaties made or shall be made, under the Authority of the United States, shall be the Supreme Law of the Land." See The Supremacy Clause: U.S. Constitution, art. VI, § 2. Furthermore, all federal, state, and local officials must take an oath to support the Constitution. This means that state governments and officials cannot take actions or pass laws that interfere with the Constitution, laws passed by Congress, or treaties. The Constitution was interpreted, in 1819, as giving the Supreme Court the power to invalidate any state actions that interfere with the Constitution and the laws and treaties passed pursuant to it. That power is not itself explicitly set out in the Constitution but was declared to exist by the Supreme Court in the decision of McCulloch v. Maryland.

The first section of the fourth article of the Constitution contains the "full faith and credit clause." See U.S. Const. art. IV, § 1. This clause provides that each state must recognize the public acts (laws), records, and judicial proceeding of the other states. The Fourth Article also guarantees that a citizen of a state be entitled to the "privileges and immunities" in every other state. See U.S. Const. art. IV, § 2.

The power of the federal government is not absolute. The tenth Amendment specifically states that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." See U.S. Const. amend. X.

Specific provisions of the Constitution protect the rights of the individual from interference by the federal and state governments. The first ten amendments, called the Bill of Rights, were enacted in 1791 to provide a check on the new federal government. See The Bill Of Rights: U.S. Const. amendments I - X. The first eight amendments provide protection of some of the most fundamental rights of the individual. For example, the First Amendment protects the fundamental civil rights of free speech, press and assembly. See First Amendment Rights. Subsequent amendments have also broadened the protection afforded the rights of the individual. The 13th Amendment made slavery illegal. See U.S. Const. amend. XIII. The fourteenth Amendment prohibits the states from abridging "the rights and immunities" of any citizen without due process of law. See U.S. Const. amend. XIV. The "due process" clause of the 14th Amendment has been interpreted by the Supreme Court as affording citizens protection from interference by the state with almost all of the rights listed in the first eight amendments. The exceptions are the right to bear arms in the second Amendment, the 5th Amendment guarantee of a grand jury in criminal prosecutions, and the right to a jury for a civil trial under the seventh Amendment. The Fourteenth Amendment also guarantees the equal protection of the laws. See Equal Protection. The right to vote is protected by the 15th Amendment ("right to vote shall not be denied... on account of race."), the 19th Amendment (guaranteeing the right to vote regardless of sex), and the 24th Amendment (extending the right to vote to those who are 18 years of age). See U.S. Const. Amendments XV, XIX, and XXIV.

Inmate's Frivolous Legal Actions

[Note: Though sometimes absurd, don't loose sight of the fact that
many prisoner's suits are meritorious and have led to significant legal
gains, or that they can be an important (sometimes the only) balance
against otherwise unrestrained powers of prison officials or
legislators. A number of such cases are at the end of this file --
Staff]
-----

* (U.S. v. Bottoson): Bottoson, convicted of federal firearms charges
and postal fraud, and faced state court charges for the kidnapping and
murder of a female postal employee. The defendant sought post-conviction
relief in the federal court, and in a letter to the court said: "This
defendant is accused of murder in the state of Florida, this defendant
goes to a church which believes in the raising of the dead, which is the
defendants right under the Constitution of the United States. This
defendant wrote a letter ... stating his religious belief that if the
body of the deceased [postal employee] were to be taken from the ground
and brought into the defendants church the Lord of life would bring back
the deceased. ... The defendant feels his 'Religious Freedom' under the
constitution were violated, anyone has the right to his/her own belief
under Freedom of Religion. Defendant now asks this court to uphold his
rights under the constitution of the United States."

* A suit by a prisoner who claimed that the Department of Corrections
planted an electronic device in his brain. (Calif.)

* (Moody v. Miller): A Texas inmate filed twenty-two complaints,
alleging civil rights violations, including violations of his right to
use the telephone, his right not to be required to walk barefoot across
a cold floor, his right not to be issued pants that are too small.

* A suit by Lee Barnett challenging the stamping of his mail to
indicate it was sent from a state prison. (Calif.)

* A Georgia inmate filed petition alleging that he was a victim of a
"Behavior Modification Program" conducted by the prison, and that the
"controlling system is a watchful eye of the State through electronic
suveillance of the human body ..." The system, he claimed, "combs" his
body and "wantonly monitors and picks up sounds and voices, but is also
tuned directly to plaintiff's brain." The plaintiff sought $500,000 in
damages, claiming the State had "no right without any permission from
plaintiff to probe his mind and body with electric current or parabolic
sound waves." (Jones v. Ault)

* A prisoner in Idaho filed suit after guards refused to "tidy up" his
cell after a search.

* (Gordon v. N.J.): The Inmate, a "certified candidate for the office
of President of the U.S." filed suit claiming "that he was unlawfully
arrested in December 1975 while campaigning in the New Hampshire
primary, and unlawfully jailed until March 15, 1976, and accordingly
claimed that the 1976 presidential election was fraudulent and that new
"legal" elections had to be held for the office of President. He also
claimed that "Had there been a free legal 1976 Presidential election, he
would now be the President."

* Beaty v. Bury: A death-row inmate sues corrections officials for
taking away his Gameboy electronic game. (Arizona)

* (Demos v. Kincheloe...): This inmate filed 184 separate actions in a
little more than three yearsincluding ones alleging: all Washington
State law is unconstitutional because statutes subsequent to the 1881
code were not ratified by Congress; a claim for damages because prison
guards refused to address him by his Islamic name; a request to require
Congress to redraft language in the Declaration of Independence; a claim
of unlawful discrimination on the basis of sex because the State would
not honor his request to be transferred to an all-women correctional
institution; and a claim that the U.S. Treasury Dept violated his civil
rights by discontinuing the practice of backing treasury notes by
silver.

* Trice v. Reynolds: Ex-chef sues because the food was bad, yet he
wanted bigger portions. (Oklahoma)

* Searight v. N.J.: Searight claimed he was taken to the Eye, Ear and
Speech Clinic, where the State of New Jersey unlawfully injected him in
the left eye with a radium electric beam, and that someone now talks to
him on the inside of his brain. He sought $12 million in damages

* Murderer sues for $25,000, claiming a "defective" haircut resulted in
lost sleep, headaches, and chest pains. (New York)

* Sir Keenan Kester Cofield an Alabame inmate was creative. Besides
filing over a hundred actions against prison officials in various
Alabama courts.. One court said "Cofield is an overly litigious fellow.
Among the many suits he has brought from his jail cell are suits against
both McDonald's and Burger King for using pork fat in the oil used to
fry french fried potatoes, thereby poisoning his body, mind and soul. He
has brought at least three libel actions against various newspapers for
prematurely printing his obituary. He also brought an action against
Coca-Cola alleging that a bottle of Coke he drank was filled with ground
glass. He has threatened or sued various restaurants in various cities
alleging food poisoning; it was later discovered that Cofield was
incarcerated at the time he supposedly was eating in these restaurants."

* Young v. Murphy: Prisoner sues for not receiving scheduled parole
hearing, though he was out on escape when the hearing was held.
(Mississippi)

* Inmate, calling himself a sports fanatic, complains that, as a result
of cruel and unusual punishment, he was forced to miss the NFL playoffs,
especially between Miami and San Diego, San Diego and Pittsburgh, and
Dallas and San Francisco. (Arkansas)

* Carter v. Ingalls: Inmate filed suit against the Georgia State Prison
hospital administrator, alleging receiving improper medication for his
ailments, which included "blue ink and glass in the General sensory
area" of his brain, along with amnesia and failing eyesight and claimed
the proper medication was "Cocane of Porcane." In a letter to the
court,he claimed the hospital had put the blue ink and glass in his
brain, had put his head in a sack with a rattlesnake which bit his face
and cracked his skull, and that he was forced to have sexual contact
with the snake.  In a separate action against the warden and an inmate,
Carter alleged that the warden had "gave hisreliable informers fake
Pictures of me haveing [sic] sex with a dog ..."

* Brittaker v. Rowland: Inmate says his meal was in poor condition. He
claims his sandwich was soggy and his cookie was broken. (Calif)

* Beverly v. Groose: Suit says inmates working in prison law library
should be paid same rate as attorneys. (Missouri)

--- Florida A.G.'s Top 10 Frivolous Prison Inmate Lawsuits

10) Prisoner claims discrimination because he was not given a Department
of Corrections raincoat like other inmates. (Walker v. DOC)

9) Prisoner sues to be served fresh rather than reconstituted milk.
(Gerteisen v. Bowers)

8) Prisoner sues for right to conduct martial arts sparring and full-
contact fighting as part of his religion. (Gibson v. Miller)

7) Prisoner sues over being served three cheese sandwiches a day for one
week while in disciplinary confinement. (Derks v. Perrin, Jr.)

6) Prisoner sues because he was required to eat off of a paper plate.
(Procup v. Strickland, et al)

5) Prisoner who has filed more than 140 actions in state and federal
court sues over finding gristle in his turkey leg. (Attwood v. Bowers)

4) Prisoner sues to be served fruit juice at meals and three pancakes
instead of two. (Spradley v.Rathman)

3) Prisoner who murdered five people sues after lightning knocks out the
prison's TV satellite dish and he must watch network programs which he
says contain violence, profanity and other objectionable material.
(Jackson v. Barton)

2) Prisoner sues to be given Reeboks, Adidas, Pony or Avia brand
hightops rather than inferior brand sneakers issued by prison. (Brown v.
Singletary)

1) Prisoner who lost a lawsuit claiming his rights as a Muslim were
violated because the prison put "essence of swine" in his food announces
his conversion to Satanism and sues for tarot cards and doves' blood.
(Marshall v. DOC)

-- Suits By Harry Franklin, An Inmate In The Oregon State Penitentiary

* Franklin claimed he was denied daily half-hour out-of-cell walks. The
judge found this claim surprising, because in other filings Franklin
alleged he was crippled.

* He claimed prison guards abridged his "right to be supplied" with T-
shirts, a claim which had previously been dismissed.

* He claimed he did not receive "some unspecified medical treatment
because an officer neglected to wake him from his afternoon nap,"
causing him "mental frustration," which the judge learned meant "that
someone got his dander up."

* Franklin sued prison guards who he alleged "wear clopping heels on
their boots, which causes plaintiff to feel he's in a Natsy [sic] prison
camp."

* He asserted that his right to free speech was violated because prison
staff discliplined him "for commenting on a guard's allegedly out-of-
wedlock birth."

* He sought $3 million in damages for "mental frustration" he suffered
when a Portland television station allegedly misidentified a "14 wheeler
tractor and trailer rig" as an "18 wheeler."

* Franklin launched constitutional challenges to Oregon statutes which
denied felons the ability to be candidates for public office or to vote
during their incarceration.

* Franklin brought up some Oregon history in one of his claims. In
1923, the D'Autermont boys robbed a train in the Sikiyou Mountains,
killing several railroadmen. According to Franklin, since the incident,
trains blew their whistles as they pass the penitentiary in the early
morning hours, violating his "right to public piece [sic]." The judge
found that "Even assuming the railroads do carry on such a heinous
practice, it would not violate one of Franklin's federally protected
rights."

* He sued "Ronal Regan and his constiuants [sic]" for $8.9 million for
"violation of undue restraint" in connection with an Oregon seatbelt
law. he believed the law was underinclusive because it did not apply to
bicycles and horses as well as cars.

* He complained that he lost sleep on three occasions because the
penitentiary's steam heater pipes snap and pop, and that he endured
"Harassment by Water" because the prison authority's over-watering of
the prison yard in the summer made it difficult for him to find a dry
place to lie down.

* He claimed the pentitentiary's cleanliness rules violated his
"constitutional right to accumulate an unlimited number of newspaper
clippings."

* Franklin was also a reformer, suing Oregon's governor, attorney
general, legislators, and judges for failing "to pass Legislation which
would keep our System such as The Courts, &/or Jails from being so
corrupt."

* He complained that the penitentiary food service bakes desserts in
aluminum rather than stainless steel pans, and that he could not eat
from aluminum pans because the "scrapings" from the pans would "settle
in [his] Human Joints."

===================================================

Top Ten Non-Frivolous Lawsuits Filed By Prisoners

Prison Guards routinely sexually assault female prisoners.  One officer
sexually fondles a prisoner who is receiving medical care in the
infirmary, forces her to perform oral sex, then rapes her.  Another
officer forces a prisoner to perform oral sex while she empties trash as
part of a work detail.  Women Prisoners v. District of Columbia, D.C.
(1994) (post trial order).

Prisoners restrained in handcuffs and shackles have their heads bashed
into walls and floors by prison guards, their bodies repeatedly kicked
and hit with batons, their teeth knocked out, their jaws fractured,
their limbs broken, and their bodies burned with scalding water.  Madrid
v. Gomez, Cal. (1995) (post trial order).

Confined youth are routinely beaten by facility staff, staff trafficking
in illegal drugs is rampant, and sexual relations between staff and
confined youth is commonplace.  D.B. v. Commonwealth, Penn. (1993)
(consent decree).

Dozens of women. some as young as 16, are forced to have sex with prison
guards, maintenance workers, and a prison chaplain.  Many become
pregnant and are coerced by prison staff to have abortions.  Cason v.
Seckinger, Ga. (1994) (consent decree).

A 17 year-old boy, in jail for failing to pay $73 in traffic fines, is
tortured for 14 hours and finally murdered in his cell by other
prisoners.  Another teenage had been beaten unconscious by the same
prisoners several days earlier.  Yellen v. Ada County, Idaho (1985)
(consent decree).

Prison officials ignore warnings by the Commissioner of Health and fail
to implement basic tuberculosis detection and control procedures.  Over
400 prisoners are infected in a single prison.  Austin v. Dept. of
Corrections, Penn. (1992) (post hearing order).

Prison staff engage in sexual relations with female prisoners and allow
male inmates to enter the prisons to engage in forcible intercourse with
the women prisoners.  Hamilton v. Morial, La. (1995) (consent decree
pending court approval).

Several suicidal children are transferred to the state mental hospital
where they are placed, naked or in paper gowns, in four point
restraints, hands and feet found to the four corners of their beds, and
then forcibly injected with psychotropic drugs as part of "aversive
therapy."  Robert K. v. Bell. S.C. (1984) (consent decree).

A prisoner gives birth on the floor of the jail without medical
assistance three hours after informing prison staff that she was in
active labor.  Other prisoners have deformed or stillborn babies as a
result of receiving almost no pregnancy-related medical care.  Yeager v.
Smith and Harris v. McCarthy, Cal. (1989) (consent decree).

Single person cells house four or five prisoners with mattresses on the
floor soaked by overflowing toilets, the drinking water is contaminated
with sewage, and prisoners' cells are infested with rats.  Carty v.
Farrelly, U.S.V.Is. (1994) (consent decree).

Letter to a Young Law Student

Don't go to law school: But if you must, take my advice.

I started law school 10 years ago this week. While you may be aware that I consider the law to be mostly very funny, I take law school pretty seriously. When I started law school I had no idea what I was in for: maybe some hybrid of debate camp and LA Law. In actual fact, for me, law school was a cross between boot camp and a cave.

Some small fraction of every incoming One-L class is comprised of people destined to take the legal world by storm. These are the people who intend to get straight A's, outline every case, make law review, clerk for a Reagan appointee, and spend the rest of their days in a leviathan corporate law firm where they will do whatever it is that's done in such places. These are the people law school was built for: people who think in zero-sum terms about everything—grades, jobs, and salaries. I wish them the very best of luck for the next three years. This advice is not for them.

This advice for the rest of you—who applied to law school simply because you took the LSATs, and who took the LSATs simply because the MCATs were too hard. This advice is for the people who graduated college with the generalized sense that they ought to be doing good works on this planet but were uncertain how to go about it. In short, this advice is for those of you who, like me, went to law school hoping that the experience would be stimulating and/or mind-expanding; a liberal-arts grad school for political people. Because you are doubtless trying to memorize the "blue book" this week, this advice is pre-outlined for your convenience.

CLEO Schedules Mid-Winter Academic Enhancement Seminar and Bar Prep Seminar for January

WASHINGTON, D.C. – January 8-10, 2010, the Council on Legal Education Opportunity (CLEO) will host its annual Mid-Winter Academic Enhancement Seminar for first year law students and the Mid-Winter Bar Preparation Seminar for third year law students. Both seminars will be held at the Hyatt Regency Crystal City in Arlington, Virginia. More than 300 students combined are expected to attend the seminars

The Mid-Winter Academic Enhancement Seminar is specifically designed to reinforce analytical, reading, writing, studying and test-taking skills that were introduced in CLEO’s pre-law preparatory programs (Summer Institute and Attitude Is Essential Seminar) for first year law students. The purpose of the seminar is to improve student retention, graduation and bar passage rates. The seminar presenters include law school professors and legal practitioners who address various topics such as: preparing for law school examinations, developing legal writing skills, time management strategies, developing good study habits and class preparation.

The Mid-Winter Bar Prep Seminar is designed for third year CLEO Fellows and Associates who intend the take the July or February bar examination after graduation. The primary objective of this seminar is to reinforce analytical, writing and test-taking skills necessary to pass the bar examination. The seminar focuses on the bar application process and the three major components of the bar exam: Multi-state Examination (MBE), Essay Questions (MEE) and Multi-State Performance Test (MPT). The seminar presenters include law professors, bar examiners and former CLEO Fellows and Associates who have passed the bar examination.
In addition to building academic skills, the seminars also provide an excellent opportunity for the law students to network with their peers and CLEO alumni from around the country. For more information about the Mid-Winter Seminars or other seminars offered by CLEO, please visit www.cleodiverCITYnetwork.org.

Both seminars are funded by the U.S. Department of Education through the Thurgood Marshall Legal Educational Opportunity Program.

Background:

In 1968, the Council on Legal Education Opportunity (CLEO) was founded to expand opportunities for minority and low-income students to attend law school. CLEO is committed to diversifying the legal profession by expanding legal education opportunities to minority, low-income and disadvantaged groups. Since its inception, more than 8,000 students have participated in CLEO's pre-law and law school academic support programs, successfully matriculated through law school, passed the bar exam and joined the legal profession.

Judge removed from Ohio serial killings case

(CNN) -- The Ohio Supreme Court has removed a Cleveland judge from a case after attorneys for serial killer suspect Anthony Sowell accused her of bias as a result of postings about their client on a newspaper website.

Judge Shirley Strickland Saffold was removed from the case Thursday, and it has been turned over to the Cuyahoga County Common Pleas Court for reassignment to another judge.

Sowell faces murder, attempted murder, rape and attempted rape charges in connection with the killings of 11 women and attacks on five other women. He was arrested after the bodies of the slain women were found at his house last fall, and he has pleaded not guilty by reason of insanity.

Read the indictment (PDF)

Sowell's attorneys, John P. Parker and Rufus Sims, filed an affidavit Monday seeking Saffold's disqualification, according to court documents.

They alleged that Saffold had "improper," ex parte conversations with the former judge on the case, Timothy McGinty, and a newspaper reporter from The Cleveland Plain Dealer. They also said that e-mails from the judge's personal and office accounts allegedly were sources of information for a March 26 Plain Dealer article and that the judge has a financial interest in the case because she and her daughter have sued the newspaper over the apparent use of her e-mails as sourcing for that article.

The defense said someone using the moniker "lawmiss" posted derogatory comments on the newspaper's website about attorney Sims and Sowell.

Those comments were linked to Saffold's account, but she has denied posting them and has said her court computer was not used to make them.

Saffold could not be reached for comment Thursday.

However, she filed a response to the defense, insisting she harbors no bias in the case and denying she had any improper conversations about it with others. She also said her civil suit against the newspaper has nothing to do with the case against the defendant.

Still, acting Chief Justice Paul E. Pfeifer found the concerns over Saffold's e-mail accounts and the public postings particularly troubling.

"Although Judge Saffold denied that she was the source of these online comments, she has admitted that the comments originated from the online account shared by her and members of her family and that the comments were posted by her daughter," Pfeifer said in his ruling.

He said the "unfortunate postings" impede Saffold's ability to resolve legal issues in the case that would appear to be objective and fair.

While there's no evidence of Saffold's actual bias, Pfeifer said, "disqualification is appropriate where the public's confidence in the integrity of the judicial system is at stake."

Pope, Vatican Officials Targeted in New Suit by U.S. Sex Abuse Victims

The lawsuit this time is accusing the pope himself of wrongdoing. A federal suit, filed on Thursday in Milwaukee, alleges that Pope Benedict XVI and senior Vatican officials covered up allegations that a Wisconsin priest molested at least 200 children at a school for the deaf in suburban Milwaukee.

The lawsuit contends that the Rev. Lawrence Murphy, while teaching at St. John's School for the Deaf from 1950 to 1974, sexually abused about 200 boys at the school. The alleged abuse included incidents in the confessional, where Murphy allegedly solicited sex from the students. Murphy died in 1998.

The lead plaintiff, identified in court papers as John Doe 16 of Illinois, contends that he was abused over a number of years, that he wrote two letters to Vatican officials in 1995 reporting the abuse, and that nothing was done.

The plaintiff's lawyer, Jeff Anderson, said, "He implored the cardinal to read the letter to the pope and to take action, and it fell on silent and deaf ears."

Anderson of Jeff Anderson & Associates in St. Paul, Minn., is seeking injunctive relief, hoping to force the Vatican to open what he claims are confidential files that contain details of priest abuse allegations and monetary settlements. He is also seeking unspecified monetary damages and a jury trial.

"We are attempting to pierce a fortress, a sovereign state, that demands and requires absolute secrecy, putting the reputation of the clergy and the Catholic Church above the well-being of the kids," said Anderson, who recently told The Washington Post that he's filed more than 1,500 lawsuits against the church during his career.

Anderson said he is trying to hold the pope accountable because, as he sees it, "the pope's in charge." He said, "The pope is the guy who is demanding these [secrecy] protocols. The pope is the guy who is ultimately responsible for this and has to be held accountable."

The Vatican had no comment on the lawsuit.

Anderson admitted he's facing an "enormous legal challenge" -- the state of the Vatican City can claim sovereign immunity. But he said he could overcome that defense with two legal arguments.

Under a tort exception, he plans to argue that because the Catholic Church allegedly engaged in systematic activity that injured a large number of people in the United States, it subjected itself to the jurisdiction of the United States and can be held liable here.

Under a commercial activity exception, he plans to argue that the Catholic Church is a massive business organization, commercially present in the United States, and therefore not immune from litigation.

The defendants are the pope, Cardinal Tarcisio Bertone, Cardinal Angelo Sodano and the Vatican City. Bertone was deputy to Cardinal Joseph Ratzinger, the future pope, at the time of the allegedly inadequate investigation in the mid-1990s.

The lawsuit claims that Ratzinger, Bertone and Sodano all knew about the allegations against Murphy, but kept them secret.

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The Guilt Project: Rape, Morality, and Law

I rate this book a 3 out of 5. As a whole concept it fails, but if you read it like you would a blog - section by section without an expectation of a strongly coherent whole - it can provoke thought.

For the first two sections of this book, I was searching for some coherent theme. Expecting the book to be either about the nuts and bolts of representing rapist on appeal or a screed against the evils of the system, I found a book wherein there's a lot of stream of thought which wanders between philosophy, sociology, reality, theory, and personal affect. It keeps harrying off into stream of consciousness every time you turn a page - or even start to read a new paragraph. Generally the thoughts are interesting, but they only link together with the barest of threads.

Before I had finished reading the Introduction and Section I: Guilt and Me, I was convinced that this was a blogger who had decided to put all her blog posts together as best she could into a book. I stopped and looked up the author sure that I would find a public defender blog tied to Vanessa Place. I was wrong.

It turns out that Vanessa Place is actually an author of poems and "experimental literature." Apparently, her most famous writing is a 50,000 word 177 page book Dies: A Sentence. Why is it famous? Because she only uses one period in the entire book (on page 117). Here's an excerpt:



Not my cup of tea, but not terrible either. Still, between this and the way the Intro and Section I went, I was beginning to wonder about this lady writing appellate briefs.

No worries, in the next three sections she shows that she knows the her stuff inside and out - the way you can only know it if you've spent the time researching and arguing a subject. It's hit or miss; some sections are extremely informative while others are expositions on philosophy and sociology.

I'm torn by this book. I found parts informative and some downright fascinating. If the subsections had been broken down and been individual blog entries I would be full of praise for an insightful, well thought through blog. But as a whole book it just doesn't hang together. Balancing these two impulses out, I have rated it a 3.

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

[addendum]For the record, I was given a courtesy copy of the book by a publicist, but later bought a copy for my Kindle.

Linkage

• The California AG's report on MOCA mismanagement. (Background here.)
• "We're short of cops to begin with and we don't have enough cops to waste answering calls of statues committing suicide.".
  
• Conviction upheld. (Background here.)
• Is Michelangelo overrated?
• Tom Flynn on the stolen Rockwell decision. (Background here.)
• "The details of the disagreement have provided a rare view into a normally very private world of high-end art selling in which membership rules, responsibilities, rewards and reprisals can be so complex and changeable that even art world veterans say they sometimes struggle to decode them." (More here.)
  
• NYT on the proposal to limit number of art vendors in city parks. (Mentioned earlier here.)

"Slick, happily one-sided"

Colin Dabkowski of the Buffalo News on "The Art of the Steal": "We don’t get nearly enough face time from those in favor of the move, which seems attributable as much to the filmmaker’s bias as it is to those who refused to be interviewed for the project. Some of the finer nuances in the battle between Barnes’ rigid and nigh pig-headed intentions and the laudable desire for more people to draw wonder from the art he collected go unexplored in favor of grandiose polemics."

Well, are you?

How Not to Deaccession

The Blanden Memorial Art Museum comes in for some harsh criticism from the AAM for its "Art is for Everyone" sale. Background here and here.

Decision in the Spielberg Stolen Rockwell Case

In a 2008 post on the the battle over a stolen Rockwell painting that got a lot of press because it had ended up in Steven Spielberg's collection, I said I thought "the issue ... is going to be whether Solomon, the theft victim, reasonably should have discovered that the painting had been found back in 1989 (in which case he would lose on statute of limitations grounds)." Well, there was a trial in the case last month, and Solomon did lose, because not only did the evidence show he should have known the painting was being sold at auction in 1989, it was clear that he actually did know about it: in fact, he had entered into an agreement to share in the sales proceeds!

More here, including a copy of the court's decision, from the Riverfront Times.

Friede Fight Finally Finished

The San Francisco Chronicle reports that "a deal has been signed ending [the Friede family] inheritance dispute." It sounds like the same "tentative" deal that was announced in December. And it's as confusing as ever. The Chronicle says:

"The bottom line for the public is that 29 pieces that had been among the 398 on display at the city-owned de Young museum after being donated by New York philanthropists John and Marcia Friede have been removed for sale."

But a couple paragraphs later, we read:

"Under legal settlements the city attorney's office recently released to The Chronicle, the de Young gets clear title to 274 of 398 pieces at the museum."

So 29 have been removed for sale. And 274 stay with the museum. What happened to the other 95?

Fisk News

The AP: "Fisk University has filed a motion seeking a trial date in its quest to sell some of the artwork from its Stieglitz collection."

For background, start here.

"Gehry said no money was involved in the settlement"

The MIT-Frank Gehry lawsuit has settled. Story here.

Linkage

• Salander furniture to be auctioned. "Proceeds will benefit creditors in the bankruptcy."
• Are museums hampered by copyright laws?
• Judd Tully on the "recently cast" Degas bronzes. (Mentioned earlier here.)
• Should all charities be equal?
  

Lopsided Leaflet

Jonathan Kiefer on "The Art of the Steal":

"[Barnes's] Last Will and Testament specified his axe should be ground against the presumed philistinism of Philadelphia’s power elite in perpetuity. That hasn’t happened, and Barnes’ acolytes are pissed, so one of them hired Don Argott to make lopsided leaflet of a documentary about it. If only Argott had the courage of a little critical distance. ... One justification for this being a film and not a long-form magazine article is the chance to really look at all that great art, but no such luck: Argott’s too busy with the awkward problem of making a case against more people having more access to a trove of masterpieces. He can’t seem to see how his attempt to curry anti-establishment favor actually endorses elitism, and so his film is vain, unbalanced, illogical, overstated and damn compelling."

Breaking News: Drug Bust

DEA Official Announces Successful Drug Bust On Son's Room

"Casting this story as a battle between the elites and the philistines mischaracterizes the situation"

Peter Rainer on "The Art of the Steal": "Imagine if there was a collection of works by Shakespeare, or symphonies by Mozart, that could be experienced only in a single location after an interminable wait, if at all? ... By making the art publicly available in the downtown location (which will recreate the way the art was displayed in the foundation), ... these glories will be seen by generations otherwise unable to do so. Is that so horrible?"

Linkage

• Gardner Heist gets a shout-out . . . on "The Simpsons."
• Happy birthday copyright!
• Meant to mention this one before the weekend: visual artist class action against Google. "The suit in federal court in New York was filed after a judge in Manhattan last year rejected the artists’ request to be part of a proposed $125 million settlement that Google reached with authors in connection with its plan to make digital copies of books in libraries."

The Other Guys

I can hardly wait for this movie:

Bubonic Bob & The a Smart Judge

Bubonic Bob was back in court a couple weeks ago. Bob earned his nickname from the fact that no matter what punishment a judge or prosecutor offers he has a condition which will preclude it. On the other hand, none of these conditions have yet stopped him from going into the local S-Mart and trying to leave without taking his items through that pesky checkout line. Most recently, his conditions also hadn't stopped him from writing a bunch of bad checks to about 7 local stores. I didn't see the original trial, but somebody gave Bob a break because his prior record should have gotten him at least 6 months. Instead he got 10 days in jail and 30 hours of community service. And therein was to be found the problem. It had been over a year and Bob hadn't done a single hour of his community service.

Probation officer testified that Bob had claimed that knee and back problems kept him from doing the usual trash pickup. Probation Officer had told Bob to bring in some sort of letter from the doctor proving his ailments. Bob put Probation Officer off for over 9 months - nary a medical record in sight - and finally Probation Officer decided to violate Bob. Since that time there'd been two continuance granted by the court so that Bob could get the paperwork and bring it to the court. Probation Officer wants either jail or at least that Bob be forced to do his community service.

Then Defense Counsel calls Bob. Bob has the magic ticket held triumphantly in his hands. He gives it to Defense Counsel who gives it to the judge. Prosecutor has to ask to see it. I couldn't see it, but from Prosecutor's reaction it was probably the same thing we see all the time from a doctor who writes something to get a patient to quit bothering him: a general letter which states there is some problem, but doesn't really state that it is serious or how the problem should limit the activities of the defendant.

Bob testifies that he can't do the physical labor of picking up trash because of his knee and back problems. On cross, Prosecutor points out that the letter doesn't say that. Bob counters that the letter says he shouldn't over-exert himself because of these problems and that the doctor told him that meant not being on his feet for over 20 minutes. Prosecutor asked why Bob hadn't brought the letter in when Probation Officer asked for it. Bob counters that he couldn't afford to pay the doctor for the letter - "No matter why you go to see Dr. Smith, it costs $750 just to get an appointment." Asked why he couldn't do community service where he could just answer phones Bob counters that his man-ear would only allow him to do that for an hour at a time. Asked why he agreed to community service Bob states that he didn't; he just agreed to do some jail and the judge stuck the community service on the order after he'd already gone to jail. Asked if he had any problems just doing jail time Bob states that the problem with that is that they won't let him have his pills for his "sugar", blood-pressure, and back pain _ "The last time I was in for a week and it took 3 months to things back to normal, cuz they wouldn't let me have my pills." Then the judge and Bob have a conversation about whether Bob smokes or not. Bob bobs and weaves a bit, but then claims he quit a year back because he's got "OCP" (I think he actually meant COPD - I've not met anyone who stopped because of river blindness). Watching Bob testify is watching a maestro in action. He may not be the most educated guy in the room, but he's mentally agile. There's an answer for everything and for everything there's an answer.

You can just see by the demeanor of Probation Officer and Prosecutor, they think that Bubonic Bob is going to skate yet again. Bob himself is looking rather smug. He's answered all the questions and his bastion of diseases is going to yet again serve him well. Then the judge weighed in.

"Mr. Bob, there's a tree in front of this courthouse. Probation Officer is at this courthouse on Tuesday, Wednesday, and Thursday. On each of these days of the week, you shall come to the courthouse and report to Probation Officer. Then you shall go down to that tree and sit and count cars. From 9 to 12 you shall count the cars which turn left from Broad Street onto 16th. From 1 to 4 you shall count the cars which turn right from 16th Street on to Broad. At the end of the day you will turn over the paper with the number of cars to Probation Officer. You will repeat this until you have completed all your community service hours."

Brilliant! I mean, I wouldn't want it for 99.999% of offenders, but it's something Bob will have a hard time getting out of medically and it will drive him nuts just sitting there all day (the tree is in the middle of a big lawn where nobody goes). Do I think he'll actually count cars? Nope. He'll make up numbers. However, I also think that he "misremembered" when he told the judge he quit smoking a year ago. Basically, the judge sentenced Bob to sit someplace where he can't talk to anyone but is in clear sight so that he can't smoke and prove that he lied to the court.

Maybe I'm just happy because I thought Bob was going to get away with it again. And, when I think about it rationally, Bob probably got off too light. Still, this is the coolest sentence I've seen in a while.

Quotes from The Guilt Project: Rape, Morality and Law

Got this book to review (also bought the Kindle version). I haven't finished reading it yet and I'm one of those strange people who won't actually review a book without reading it. However, here are some interesting quotes from the book so far.

On sex with a drunk woman equaling rape: "The real snake is the thesis that women are like children, and like children, must be protected from themselves."

Explaining why women can't consent to prostitution under the "domination theory": "Women who voluntarily engage in prostitution have been involuntarily recruited by daily patriarchal practices and institutional ideology: a woman whores because it's a man's world."

"Feminism and prostitution, those twin administrations of women's bodies, each claiming province of their hearts and minds, have been conjoined since the Victorian era."

"In the too-liberal imagination, each of the Seven Deadly Sins is attributed to a mutilated Me: the glutton is only starved for affection, the violent lashes out to reach out, and the murderous just doesn't get the rest of us."

According to my Kindle, I'm 57% of the way through the book. I'll comment on the meat of it when I get to 100%.

Padilla & the Prosecutor

So, how does Padilla v. Kentucky affect those of us on the prosecution side of the aisle?

It's more than a little ridiculous to expect defense attorneys practicing in State courts to understand the intricacies of immigration law. How ridiculous? Well let's look at the list of sources which Justice Stevens uses to back his claim that it is a normal standard of practice for defense attorneys to be fluent in and advise clients as to immigration law:

National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999).

Now, let's compare that to the real world courts which have rejected this idiocy (and which Justice Stevens buries in a footnote):

United States v. Gonzalez, 202 F. 3d 20 (CA1 2000); United States v. Del Rosario, 902 F. 2d 55 (CADC 1990); United States v. Yearwood, 863 F. 2d 6 (CA4 1988); Santos-Sanchez v. United States, 548 F. 3d 327 (CA5 2008); Broomes v. Ashcroft, 358 F. 3d 1251 (CA10 2004); United States v. Campbell, 778 F. 2d 764 (CA11 1985); Oyekoya v. State, 558 So. 2d 990 (Ala. Ct. Crim. App. 1989); State v. Rosas, 183 Ariz. 421, 904 P. 2d 1245 (App. 1995); State v. Montalban, 2000–2739 (La. 2/26/02), 810 So. 2d 1106; Commonwealth v. Frometa, 520 Pa. 552, 555 A. 2d 92 (1989).

So, on the the one side we have actual courts which recognize the reality. On the other side we have a widely disparate set of habeas-bait "standards" (invariably impossible to follow: see this post), never used procedural books (I'd even go so far as to say never heard of, but someone out there must have), ABA standards which laughed at by actual practitioners (actual criminal law attorneys don't have time to waste with that organization), and a law review article (you're kidding?!? tell me you're kidding). On one side are 11 courts (including Kentucky) which have held the opposite of Justice Stevens decided (btw, where's the circuit/State supreme courts split that required the federal supreme court to step in address this issue?); on the other side are the best sources which Stevens' clerks could scrape up by combing through the law library. This just screams of results oriented rationalization.

Immigration effects has been a major meme that has been thrust upon criminal practitioners for a while now. It seems like every CLE has one hour in which a professor or immigration lawyer stands in front of the room and lectures on consequences of convictions. Meanwhile, the practitioners browse the web, read newspapers, work on that brief due Friday (you know - what practitioners do at every CLE). I've actually tried to pay attention and come to one conclusion. There is no way that anyone who is not steeped in the labyrinthine disaster zone which is immigration law can possibly advise a defendant properly. To quote myself:

Then came a section on collateral effects of a criminal conviction on aliens. What did I take away from this section? If you're a defense attorney and your client is an alien, call an immigration attorney because you will never be able to figure out the morass that is immigration law.

IMO, the best a practicing defense attorney can really advise an immigrant client is that a conviction might effect his immigration status. More than that and the attorney is really speculating.

The problem is compounded by the reality on the ground. Immigration officials are stretched thin. I currently work in an area where there aren't a large number of immigrants in the system. However, before I came here I was in a locale where it was not unusual to see several immigrants per day in court. I can remember talking to State officials and defense attorneys who specialized in Spanish language defendants and hearing the same thing more than once, "Yes, the feds can deport, but they don't want to be bothered unless there is a violent felony." Of course, it wasn't always phrased quite so blandly. So, the attorney in Padilla's case may have been giving what was basically reality based advice based upon experience. I haven't seen the feds swoop in and deport people therefore, they shan't do it to you. Of course, the problem with this is that the feds can alter their behavior randomly and unilaterally. And, in Padilla's case someone in the federal government thought that transporting a tractor-trailer full of marijuana might just be a reason to deport someone.

So, getting back to reality as the Supreme Court has now defined it for us, what are the practical effects on the ground? Well, we know that a lot of attorneys aren't going to pro-actively advise the possible immigration consequences of a conviction. We also know that even when they do there will be appeals and habeases in which the defendant claims that he wasn't notified. Hopefully, judges will start adding the question to the plea colloquy, "Are you aware that if you are an immigrant a conviction may effect your immigration status?" Unfortunately, I can't do anything to effect that change. However, I can change the language in my plea agreements (whether or not Scott will advise his clients to sign them). Henceforth, all my plea agreements will contain the following language:

Immigration Consequences: The defendant understands that if he is an immigrant any conviction may effect his immigration status and that federal law allows deportation for drug convictions.

I suggest that any prosecutor out there develop similar language and insert it into their pleas until such time as the judges have changed their colloquies.

"Estate Tax Law Uncertainty Affecting Donations to Museums"

Daniel Grant at the Huffington Post.

Related post here.

Linkage

• Seven-year sentence in TV art scam.
• Berry-Hill artwork seized.
• Josh Baer reports that Phillips de Pury won a court battle to sell works from Halsey Minor's collection.
• The Barnes move is a result of "the ever-apparent short gain philosophy revealed in company takeovers and the sub-prime mortgage debacle" or something.

Virginia Supreme Court Arguments in April

Case name followed by assigned error(s):

Newby v. Commonwealth, No. 091247:

The Court of Appeals erred in upholding the trial court’s error in denying Newby’s Motion to Strike the Evidence, both at the conclusion of the Commonwealth’s evidence and at the conclusion of all the evidence, on the grounds that the evidence did not prove that he had committed any portion of the offense alleged in the City of Hampton, Virginia.

Herndon v. Commonwealth, No 091265:

The Court of Appeals erred in affirming the trial court’s admission of the certificate of analysis contained in Commonwealth’s Exhibit 1 into evidence, because the item described in the certificate of analysis was not shown to be the same item the officer submitted to the laboratory.

Cokes v. Commonwealth, No. 091507:

The Court of Appeals erred by holding that the trial court did not abuse its discretion by denying Cokes’ request to withdraw his jury trial waiver and to proceed with a jury trial.

Midkiff v. Commonwealth, No. 091793:

The trial court erred in admitting into evidence, over Petitioner's objection, images which were not taken directly from the hard drive of the computer seized from Petitioner's home because they were neither the best evidence of the images nor reliable evidence of the images.

Carter v. Commonwealth, No. 091895:

The Commonwealth failed to prove the grand larceny indictment, that paint was stolen from the store.

"Officials say the museum may have to close in thirty days"

The Owensboro Museum of Fine Arts in Kentucky is on the verge of closing its doors.

Minor News

Lee Rosenbaum has some thoughts on the recent summary judgment decision Sotheby's got against collector Halsey Minor. She also gets this quote from Minor:

"I will be appealing. This is not a financial issue. ... It's an issue I feel very strongly about. It's an issue about disclosure and the integrity of the auction process."

"That’s a rate of something over $10 million per year on the initial loan, or 44%"

Felix Salmon says Art Capital made $16 million on its loan to Annie Leibovitz.

Linkage

• Shepard Fairey update.
• Did bureaucratic infighting sabotage the Gardner investigation?
• Lawsuit over Eames archive.

Appeals Accepted by the Virginia Supreme Court March 2010

Case followed by the assignment of error(s):

Sidney Jr. v. Commonwealth, No. 092313:

1. The Court of Appeals erred by upholding the trial court's refusal to suppress the evidence where the petitioner was detained without probable cause or a reasonable suspicion in violation of his rights under the Fourth Amendment of the U.S. Constitution and comparable parts of the Virginia Constitution, and where the evidence was obtained as a result of this detention.
2. The Court of Appeals erred by concluding that the anonymous tip and dispatch to police supported the seizure of the petitioner, where the tip and dispatched information were not from an informant whose reliability was established and the information provided in the tip was not predictive and was otherwise insufficient to support the seizure of the petitioner.
3. The Court of Appeals erred by concluding that the tip and dispatch information supported the seizure of the petitioner where the mere fact that a warrant was on file for Allen Sidney did not make the otherwise unreliable tip reliable enough to support the seizure of petitioner under the circumstances of this case.

Perry v. Commonwealth, No. 092418:

1. The Circuit Court erred in denying Appellant’s motion to suppress evidence obtained in violation of his constitutional rights.
2. The Court of Appeals erred by considering a new justification for the illegal search, which was never presented to the trial court.
3. The Court of Appeals erred in finding that Trooper Weidhaas had probable cause to arrest Appellant at the time of the illegal search.

Bennett v. Commonwealth, 092085:

1. The appellate court erred in finding the Commonwealth had proven at least one prior firearms conviction thereby imposing a sentence on the firearms charges of three and five years, respectively.

McGhee v. Commonwealth, No. 091274:

1. The Court of Appeals erred in ruling that the trial court did not err in denying the motion to suppress the evidence because there was no probable cause for arrest and because the search of the car was invalid.

Commonwealth v. Moirris, No. 092163:

1. The Trial Court erred in its decision finding authority to apply the Writ of Coram Vobis, or alternatively the Writ of Audita Querela, as an appropriate remedy.
2. The Trial Court erred in granting Appellee relief under the Writ of Coram Vobis.

Bly v. Commonwealth, No. 092064:

ERROR: The trial court erred in not granting the defendant a new trial when it was discovered that exculpatory evidence was not disclosed to the defendant prior to trial.

CROSS ERROR: The Court of Appeals, although correctly finding no prejudice as a result of the non-disclosure, erred by failing to also find that Bly did not establish the second requirement of the Brady test: that the non-disclosed information either was itself admissible evidence or would have led to evidence that was.

Carroll v. Commonwealth, No. 091987:

1. The Court of Appeals erred in finding that, at the close of the evidence at appellant’s revocation hearing, appellant did not argue that the trial court could not find him in violation of probation because of the terms of any plea agreement.
2. The Court of Appeals erred in holding that it could not consider the plea agreement terms of appellant’s Alford plea as a basis for reversal of the trial court’s revocation, because appellant did not ask the Court of Appeals to consider whether the trial court’s decision finding that appellant was in violation of his probation was a breach of the terms of the plea agreement between appellant and the Commonwealth.
3. The Court of Appeals erred, based upon the facts of this case, in affirming the Court’s revocation of appellant’s probation because appellant refused to accept responsibility in sex-offender treatment by admitting to rape based upon his Alford plea as a matter of law.
4. The Court of Appeals erred in holding that the trial court did not abuse its discretion in denying appellant’s request to consider a reasonable alternative treatment modality, such as individual sex-offender therapy, in lieu of probation revocation coupled with the condition of successfully completing the same program from which appellant was terminated.

Linkage

• Another Leibovitz loan lawsuit.
• Park West jury trial underway in federal court in Detroit.
• Proposed regs governing sales of art in NYC parks.
• Updates on the Cleveland Museum and Fisk stories.
  

New Cases Added to Virginia Criminal Cases & Law

March's appellate cases have been entered into Virginia Criminal Cases & Law.
.

"But in many cases, experts say, contracts are unspecific and collectors do not fully understand the legal risks"

NYT "Wealth Matters" columnist Paul Sullivan: "Protect Your Art With More Than a Handshake."

"If there is one thing we can be sure of when it comes to fair use [it's] that there is nothing we can be sure of when it comes to fair use"

Sergio Muñoz Sarmiento responds to a just-released study by The Center for Social Media at American University on the impact of copyright and fair use on communication scholars.

Linkage (wow-there's-a-lot-going-on edition)

• Pace and Wildenstein have split up. Carol Vogel has the story in the NYT: "Although the financial details are being kept confidential, hundreds of millions of dollars are said to have changed hands. Pace bought out Wildenstein’s portion of the inventory they jointly owned .... It also bought out Wildenstein’s 49 percent share of PaceWildenstein."
• Collector sues gallery. Ed Winkleman comments.
• "Fake Wine, Thomas Jefferson, Christie's and the Law." Related story here.
• Is Canada the best place to unload stolen art? Mark Durney comments.
  
• Art fair legal dispute?
  
• Art Institute of Chicago cuts gallery hours.
• Not guilty pleas in Clementine Hunter fakes case.
  
• A conference on the 20th anniversary of the Gardner theft.
• Plus ca change.
• "Hundreds of artworks in Turkish museum stolen and replaced with fakes."
  

Minor Dismissal

Total victory for Sotheby's in its breach of contract lawsuit against Halsey Minor. Story here. He owes them $4.4 million -- "plus interest, late charges, and legal fees."

Minor's claim was that he didn't have to pay because "Sotheby's had significant economic interests in the artworks at issue, which it failed to disclose." The Court found that "none of Minor's arguments have merit" and granted summary judgment to the auction house. First, it adopted the reasoning of the Magistrate Judge in an earlier ruling in the case that:

1. Minor didn't properly allege the existence of a fiduciary duty;
2. He didn't plead injury with particularity as required by Rule 9(b); and
3. He failed to identify "how Sotheby's failure to disclose its interests is material."

The Court also rejected the argument that Sotheby's failure to use its "triangle symbol" -- for lots in which it has an "economic interest equivalent to an ownership interest" -- in the auction catalogue was misleading. "It is clear that Sotheby's had only a security interest" in the works," which is "not equivalent to ownership interests."

Sotheby's Conditions of Sale provide that they can impose a "late charge" of "Prime + 6% of the total purchase price," and also that the buyer will pay its "legal fees and expenses" in a collection action, so, all told, Minor will owe significantly more than the $4.4 million (which represents the difference between what he agreed to pay and what Sotheby's was able to resell the works for during the pendency of the suit).

Here is some background on the suit. Here is an email Minor sent me saying "I am going to bet that when they have to finally cough up the documents and stop spouting nonsense they will have served in the dual role of auctioneer and secret undisclosed owner [a]nd all else will have been long forgotten." Here is another in which he said "Sotheby’s has subjected themselves and their shareholders ... to massive liability all because they could not admit they were wrong and discuss a solution like gentlemen." Here is some info on a separate Minor suit against Christie's.