| Part I for a discussion of the US government's asserted legal claims in this case.
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 | Bronze, a mixture of copper and tin,
is found in many statues and plaques,
which are vulnerable to copper thieves.
Frederic Remington, ''The Bronco Buster,"
given to the Lyndon B. Johnson Library.
Public domain image.
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Copper theft continues to run rampant throughout the country. Museums, cultural institutions, churches, art galleries, universities, and more have been impacted by the great raid on copper and bronze sculpture and plaques. That is because the price of copper is high, largely driven up by rapid industrial development in China and India. The recent press report of a sword swiped from a copper statue located at Abraham Lincoln’s tomb site in Springfield, Illinois has become common over the last several years. And thieves may be less interested in the art and more interested in the metal’s melted value.
Many states have laws that regulate scrap metal recyclers so that law enforcement can uncover scrap metal crimes. In New Hampshire, Chapter 322 of the Revised Statutes Annotated mandates junk and scrap metal dealers to be licensed, requires photo identification from person’s turning in metal for scrap, and permits law enforcement access to business records. Maine just announced its intention to stiffen regulations. Last week legislation moved forward in Augusta that would have scrap metal dealers check photo identification and vehicle information for anyone selling scrap metal, place a 72 hour delay on processing the metal, and have payments sent by check to a physical address. Penalties for noncompliance could include a license suspension for scrap metal processors.
Protecting outdoor statuary from copper theft may not be easy, but contacting a security consultant for a site assessment should be a first step for any cultural institution. Security options can then be considered in light of the actual risks and the institution’s budget. Members of the nonprofit International Foundation for Cultural Property Protection may be able to help.
If a theft occurs, it should be reported to the local police immediately. Be sure to tell the police about Scrap Theft Alert, where law enforcement can report a theft to the membership of the Institute of Scrap Recycling Industries.
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You are further instructed that if a person by the use of medications or drugs renders herself more susceptible to the influence of intoxicating alcohol than she otherwise would be and by reason thereof became intoxicated from the recent use of intoxicating alcohol, she is in the same position as through her intoxication was produced by the intoxicating alcohol alone. That sentence, in the world of Texas DWI litigation, is known as the “synergistic effect” instruction. It is typically given to a jury in a DWI case that involves both the use of alcohol and drugs (including over-the-counter medications). The Texas Court of Criminal Appeals has held that the synergistic effect instruction does not expand on allegations of intoxication due to alcohol, which means that a person charged with DWI due to intoxication from alcohol alone, may be convicted if the State proves that the intoxication occurred due to a combination of alcohol and drugs. See Gray v. State, 152 S.W. 3d 125 (Tex.Crim.App. 2004). Last week, the CCA revisited this issue (somewhat) in Barron v. State, a case on appeals from the 5th District Court of Appeals (Dallas). In Barron, there was minimal evidence of intoxication and the defendant did not submit to a breathalyzer test. However, the arresting officer found (but failed to seize) what he identified as hydrocodone in the defendant’s vehicle. Although there was no evidence at trial that (1) the substance in the pill bottle was in fact hydrocodone, or (2) the defendant actually ingested the alleged substance, the trial court, nonetheless (and over defense objection), gave the synergistic effect instruction to the jury. In closing argument, the state relied on the scant evidence of drug/alcohol combination and the defendant was convicted. On appeal, the 5th COA held that the trial court erred by giving the synergistic effect instruction when there was no evidence in the record to support the theory that the defendant ingested hydrocodone. The 5th COA further held that the erred was harmful. On petition to the CCA for discretionary review, the State relied on the CCA’s holding in Gray to argue that because the synergistic effect instruction does not expand the allegation of intoxication due to alcohol, then there was no error (or it was harmless). The CCA agreed with the COA that it was error for the trial court to give the instruction when there was no evidence in the record that the defendant ingested a drug in combination with her consumption of alcohol. The CCA, however, disapproved of the manner in which the 5th COA conducted the harm analysis, noting that the COA’s harm analysis “simply repeats its error analysis.” A proper analysis, the CCA explains: should follow the guidelines of Almanza, assaying the degree of harm ‘in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.’ The CCA concluded that the error was harmful in this case because it emphasized the State’s theory of the case (that the defendant was intoxicated due to a combination of alcohol and drugs), when the state of the evidence did not support this theory. Takeaway: The “synergistic effect” instruction is not an all-out license for the State to pursue a theory of intoxication that it did not charge in the indictment/information. The theory must be supported by the evidence, rather than a mere hunch. Presiding Judge Keller dissented, noting that the synergistic effect instruction in this case might not have been error under the CCA’s recent holding in Ouellette v. State (2011 Tex. Crim. App. LEXIS 1373 (October)), a case that had not been published when the COA decided this case. She would have vacated the COA decision and remanded the case for reconsideration in light of Ouellette. Judge Meyers dissented and would send the case back for the COA to conduct a legal sufficiency review rather than a harm analysis. Judge Keasler also dissent, but without a written opinion. Sumber http://thetrialwarrior.blogspot.com/
The case of Rubin et al. v. the Islamic Republic of Iran v. Museum of Fine Arts and Harvard University et al. is in full swing at the U.S. First Circuit Court of Appeals. The appeals court yesterday set a briefing schedule that calls for the appellant’s brief to be filed on December 27 and the appellee’s brief to be filed 30 days thereafter. [Update 1/27/12: The court extended these deadlines.] In September, the United States District Court for the District of Massachusetts denied a request by Jenny Rubin and others to gain title to artifacts held by Harvard, the Museum of Fine Arts, and other Boston area cultural institutions. The Massachusetts federal district court ruled that it was presented with no proof that Iran owned the antiquities in the museums; therefore the plaintiffs were not entitled to the cultural property. Rubin and the others soon appealed the decision to the circuit court in October. The Rubin plaintiffs wish to acquire the artifacts in order to satisfy a multi-million dollar court judgment they won against Iran for that government's role in sponsoring a 1997 terrorist bombing in Jerusalem. The suicide attack inflicted injury on the plaintiffs.
Photo credit: Nightryder84, detail of cup found at Marlik, Iran, Creative Commons. Sumber http://thetrialwarrior.blogspot.com/
In a recent case from the U.S. Court of Appeals for the Fifth Circuit (Federal), the court considered whether police interrogation of a suspect violated the suspect's constitutional right to have an attorney present when the suspect voluntarily continued the conversation with the officers. U.S. v. Carillo - While the defendant was in jail on a parole violation, officers went to interview him about his involvement in a drug distribution conspiracy. After being read his Miranda rights, the defendant invoked his right not to be questioned without an attorney present. The officers stopped talking to him and left. The next day the defendant told jailers that he wished to speak to the officers from the day before. The officers returned to the jail, advised him of his Miranda rights, which then led to a discussion about the defendant's right to an attorney. The defendant made three comments during this time. He told the officers, “I wish I had a lawyer right here," "I wanted to see if we could push this thing to where I could get my lawyer," and "I wanted to see if you could work with me and push this deal to where I can get a lawyer and just sit down and talk about it." After one of the officers told the defendant that he would get an attorney at his arraignment, the defendant asked the officer what would happen if he agreed to talk to the officer now. The kind and helpful officer told the defendant that he would just be cooperating and helping himself and once he got into the federal system he would get an attorney. Hearing those words of encouragement, the defendant agreed to talk to the officers and (of course) made several incriminating statements, which led to his conviction. On appeal, the appellant contended that his confession should have been suppressed because it was obtained in violation of his constitutional right not to be interrogated while in police custody without an attorney present, under Miranda v. Arizona, 384 U.S. 436 (1966). The 5th Circuit recognized that the defendant's three comments, when viewed separately, appeared to indicate that he was invoking his right to counsel. However, the Court held that when considering the entire context in which the defendant made the comments, a reasonable police officer would not have understood him to be saying that he wanted to stop talking with the police without an attorney present. The court held that the defendant's comments to the officers were ambiguous at best. They expressed the defendant's preference to have an attorney present, however, the fact that he kept talking to the officers indicated that he also wished to keep the interview going and not to end it by invoking his right to counsel. The defendant re-initiated communication with the officers after he ended the interview the day before by invoking his right to counsel, so he was clearly aware of how he could end the interview. The defendant was merely weighing the pros and cons of talking to the officers without an attorney present which he eventually decided to do. Sumber http://thetrialwarrior.blogspot.com/
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