Things Learned Doing Ride Alongs

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

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

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

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

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

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

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

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

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

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

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

Warhol Decision

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

Much more from The Art Newspaper.

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

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

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

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

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

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

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

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

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

'I think I am, yeah.'

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

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

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

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

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

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

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

Practical Application

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

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

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

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

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

Update on the Brodsky Bill

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

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

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