Monday, January 31, 2011

Thinking Ahead: An Emergency Protection for Egyptian Cultural Antiquities Act

As Egyptians exercise their universally recognized rights to assembly and expression, the Egyptian people are deeply concerned about the cultural heritage that resides in their country. Those concerns are shared by many throughout the globe. Archaeological sites reportedly being looted and museums have experienced break-ins. That is why it is important for lawmakers to start thinking about ways to help protect Egyptian cultural artifacts. It is better to think of solutions now rather than reacting to a potentially wider problem later.

One effort might be to stop stolen and looted Egyptian cultural material from crossing the American border. Such import controls could be accomplished by enacting an Emergency Protection for Egyptian Cultural Antiquities Act, which could supplement authority already existing under the federal criminal code and the Archaeological Resources Protection Act (ARPA).

The Cultural Property Implementation Act (CPIA), 19 U.S.C. 2601 et seq., implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Section 2603 of the CPIA permits the President to enact import restrictions on cultural materials illegally removed from a country during an emergency situation without requiring that country’s government to make a formal legal request. Senator Charles Grassley introduced emergency legislation in 2003, pursuant to the CPIA, in response to the looting of the National Museum of Iraq. The time is ripe to consider similar legislation in response to the reported looting currently occurring in Egypt.

Theft, vandalism, and looting in Egypt include some of the following, according to current reports:

• Antiquities official Mohamed Megahed told the BikyaMasr blog of “immense damages to Abusir and Saqqara,” major archaeological sites in Egypt. He added that “[o]nly the Imhotep Museum and adjacent central areas were protected by the military. In Abusir, all tombs were opened; large gangs digging day and night.”

• The Qantara Museum warehouse in the Sinai was attacked by looters, according to news reports.

• Dr. Gerry Scott, director of the American Research Center in Egypt, has commented on damage at the site of the Great Pyramids in Giza. (

• The break-in at the Egyptian Museum in Cairo has been well reported, although the extent of that incident remains unclear.
(video available at

Meanwhile, several organizations have joined together to issue a statement that calls “on United States and European law enforcement agencies to be on the alert over the next several months for the possible appearance of looted Egyptian antiquities at their borders.” Those organizations calling for increased law enforcement vigilence include:
American Schools of Oriental Research
Archaeological Institute of America
Cultural Heritage Center, University of Pennsylvania
Cultural Heritage and Preservation Studies, Rutgers University
Lawyers’ Committee for Cultural Heritage Preservation
U.S. Committee of the Blue Shield

There is authority at present to seize illegally obtained Egyptian artifacts at the American border. The National Stolen Property Act and anti-smuggling laws permit the seizure of stolen cultural property pursuant to the criminal laws found in Title 18 of the United States Code. See United States v. Schultz. Cultural property can also be seized under an interpretation of ARPA under Title 16. Because customs officials most often enforce import controls enacted pursuant to Title 19, An Emergency Protection for Egyptian Cultural Antiquities Act should be contemplated even at this early stage of events in Egypt. Such a statute could resemble the emergency protection law covering Iraq and be worded in the following way:

Emergency Protection for Egyptian Cultural Antiquities Act of 2011

(a) AUTHORITY- The President may exercise the authority of the President under section 304 of the Convention on Cultural Property Implementation Act (19 U.S.C. 2603) with respect to any archaeological or ethnological material of Egypt without regard to whether Egypt is a State Party under that Act, except that, in exercising such authority, subsection (c) of such section shall not apply.

(b) DEFINITION- In this section, the term `archaeological or ethnological material of Egypt means cultural property of Egypt and other items of archaeological, historical, cultural, rare scientific, or religious importance illegally removed from locations in Egypt since January 25, 2011.

The authority of the President under section 3002(a) shall terminate on January 31, 2016.

Sunday, January 30, 2011

Information from the Blue Shield on the Situation in Egypt

See the statement at

LCCHP and Other Organizations Warn of Cultural Heritage Emergency in Egypt

The Lawyer's Committee for Cultural Heritage Preservation, joined by other organizations, has issued on the situation involving cultural heritage in Egypt. That statement is below:

The undersigned cultural heritage and archaeological organizations express their concern over the loss of life and injury to humans during the protests in Egypt this week. We support the desire of the Egyptian people to exercise their basic civil rights. We also share their concern about the losses to cultural heritage that Egypt has already sustained and the threat of further such losses over the coming days.

Brave actions taken by the citizens of Cairo and the military largely protected the Cairo Museum. However, the numerous sites, museums and storage areas located outside of Cairo are even more vulnerable. As the prisons are opened and common criminals are allowed to escape, the potential for greater loss is created. A recent report from Egyptologist Professor Sarah Parcak of the University of Alabama in Birmingham states that damage has been done to storage areas and tombs in Abusir and Saqqara and that looting is occurring there and in other locations.

We call on the Egyptian authorities to exercise their responsibilities to protect their country’s irreplaceable cultural heritage. At the same time, we call on United States and European law enforcement agencies to be on the alert over the next several months for the possible appearance of looted Egyptian antiquities at their borders.

Archaeological Institute of America
Cultural Heritage Center, The University of Pennsylvania
Lawyers’ Committee for Cultural Heritage Preservation
U.S. Committee of the Blue Shield

Archaeological Looting Crisis in Egypt

Sarah H. Parcak, Assistant Professor at the Department of History and Anthropology at the University of Alabama at Birmingham reports a crisis brewing at major archaeological sites in Egypt. The United States government and others must keep a careful watch at their borders for any ancient Egyptian artifacts. Professor Parcak's email appears below:

"Verified by Mohammad Megahed: Immense damages to Abusir and Saqqara, all magazines and tombs which were sealed were entered last night. Only Imhotep Museum and adjacent central magazines protected by the military. In Abusir all tombs opened. large gangs digging day and night everywhere"

The damage is *vast*.

It seems that some of the storage magazines at South Saqqara and Abusir have been looted-hard to say how much was taken and the extent of the robbing. SCA representatives are only today able to check on the museums/storage magazines, but early reports suggest major looting. If you all could please contact anyone who can help and put them on "high alert" for Old Kingdom remains and Egyptian antiquities in general, and please spread the word to law enforcement officials worldwide. Egyptian looters (who may be encouraged by outside Egypt entities) may try to use the general confusion to get things out of the country.

Other bad news: prisons in Qena and Armant (next to Luxor) have been emptied, so people fear major looting will occur in that region.

Reports still abound for major looting in the Alexandria Museum---but those reports are hard to confirm. The violence has been worse in Alexandria, and there have been few police reports there."

Saturday, January 29, 2011

Luxor and Giza Sites Under Military Guard

The Associated Press reports that Egyptian authorities have set up barriers to protect Karnak Temple--the world's largest ancient religious site--in Luxor. In addition, tanks were stationed outside Luxor's museum. This information was reportedly supplied by American archaeologist Kent Weeks, who is in Luxor and heads the Theban Mapping Project.

Meanwhile, the Giza pyramids have been closed and placed under military guard.

Video Showing Egyptian Army Inside Egyptian Museum

The video currently being shown on CNN to illustrate the current situation inside the Egyptian Museum in Cairo is posted at the following link:

[Update November 9, 2011: Associate Press video at].

Update on the Egyptian Museum in Cairo

The famed Egyptian Museum is near a major plaza where many have gathered in the last few days to protest President Mubarek's grip on power. As looters moved onto the grounds of the museum, the Christian Science Monitor reports: "One man pleaded with people outside the museum's gates on Tahrir Square not to loot the building, shouting at the crowd: 'We are not like Baghdad.'" The paper reports that others joined together to create a perimeter to protect the museum with one man remarking, "I'm standing here to defend and to protect our national treasure."

The military later arrived on the scene. News outlets indicated that the military arrived around 5:15 a.m. local Cairo time on Saturday (January 29). CSM reports that the potential thieves were rounded up amid chants of "Thief. Thief" by the demonstrators.

I observed video on CNN showing shattered glass cases that house the well-known Middle Kingdom models of daily life found on the second floor of the museum. It appears from the video that parts of the models are damaged or missing.

Let us remember that the Egyptian people and their right to self-determination are much more important than artifacts. But more will be posted here about any news related to cultural heritage since that information is hard to come by at the moment.

Wednesday, January 26, 2011

A "Shocking" Ruling

In Texas, there are certain types of offenses for which a trial judge may not order community supervision (i.e. Probation). See Tex. Code Crim. Proc. 42.12 § 3g. A jury, on the other hand, in those same cases, may recommend to the judge that community supervision be ordered and the law provides that the judge shall so order it.

Section 6 of Article 42.12 also provides the judge with another probation option – Shock Probation. Shock Probation allows a defendant to be released early from a confinement sentence and placed back on regular probation if:
(1) the defendant is otherwise eligible for community supervision under this article; and
(2) the defendant had never before been incarcerated in a penitentiary serving a sentence for a felony.
BUT…does section (1) mean that the defendant is eligible for Shock Probation if he is eligible for ANY community supervision under 42.12, including jury recommended (i.e. when the judge cannot do it himself) or must be eligible for the more restrictive JUDGE-ORDERED community supervision?

I’ll admit that I was confused when I saw this question posed in the recent CCA case – State v. Posey. In Posey, the State was appealing a decision of the 6th District Court of Appeals (Texarkana) holding that the trial judge can impose Shock Probation in any case in which the defendant is eligible for ANY type of probation under Article 42.12. The State was of the mind that the defendant must have initially been eligible for Judge-Ordered community supervision to later be eligible for Shock Probation.

Posey was convicted of two criminally negligent homicides. Because the jury made a deadly-weapon finding, the judge was unable to order community supervision without a jury recommendation for such. The jury recommended community supervision and the judge ordered it. Later, Posey violated the terms of his community supervision and the State moved to revoke his probation. After Posey had begun serving his resulting confinement sentence, he filed a Motion to Impose Community Supervision and the judge granted Shock Probation. Posey was released from jail and placed back on probation.

The State appealed the issue to the CCA.  Noting an ambiguity in Article 42.12, the Court of Criminal Appeals donned their legislative hats and signed a new bill into law. Here’s the new rule with regard to Shock Probation under section 6 of 42.12:

A trial judge may not grant shock probation unless the defendant is eligible for judge-ordered community supervision.
In so holding, the CCA cleaned up a gap in the law and, in my opinion, interpreted section 6 consistently with section 3. If a trial judge cannot order community supervision without a jury recommendation, then he should not also be able to order shock probation. Good holding, but, of course, you would always prefer that a legislature be the body handing down the law.

Judge Keasler concurred and is of the opinion that the deadly weapon finding precluded the Defendant from being placed on Shock Probation.

Friday, January 14, 2011

Bringing a Dog to Cat Fight, Makes it a Dog Fight

Gerardo Lujan was convicted of possession of cocaine after the El Paso police discovered cocaine hidden in the passenger side of his vehicle. Lujan had been stopped at a police checkpoint that was set up to stop every vehicle on both sides of the road to check for driver’s licenses and insurance. Curiously, the officers also had with them a drug-sniffing dog to detect and alert if any of the detained persons possessed drugs or had drugs in their vehicle.

Following Lujan’s conviction, the 8th District Court of Appeals (El Paso) reversed the conviction, holding that the “license and insurance checkpoint” was actually a subterfuge for general criminal enforcement. The 8th Court focused on the holding of the U.S. Supreme Court in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), wherein the Court noted that it has “never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.”

The State appealed the 8th Court’s reversal to the Court of Criminal Appeals. The CCA agreed with the legal standard articulated by the 8th Court, but disagreed in its analysis. Originally prepared by Judge Holcomb before his retirement, the opinion states:
If the primary purpose of the checkpoint is lawful – a license check as opposed to general law enforcement – police can act on other information that arises at the stop. The checkpoint’s primary purpose of license and insurance verification does not prohibit the police from considering other unrelated offenses that they discover during the stop.
The CCA went on to hold that the checkpoint was not unreasonable, despite the presence of a drug-sniffing dog, the fact that the officers conducting the checkpoint were part of the drug-interdiction team, and the fact that the checkpoint was set up on a stretch of road known for drug smuggling.

Disagreeing with the CCA’s conclusion regarding the lawfulness of the checkpoint, Judge Johnson concurred “because [she] thinks that the drugs would have been discovered without the dog’s alert.” She point out, however, that:
if the checkpoint were truly for only licenses and insurance, the dog would be a valuable resource wasted and better used at a location where its specialized skills were in demand. I agree with the court of appeals that the checkpoint was a subterfuge for general criminal enforcement.
Judge Meyers dissented, stating that bringing a drug-sniffing dog to a license and insurance checkpoint
was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight. Based on the facts of this case, I disagree with the majority and would conclude that the primary purpose of the checkpoint was the ‘uncover evidence of ordinary criminal wrongdoing,’ in contravention of the Fourth Amendment.
In this case, it appears the Fourth Amendment was trumped by the doctrine of “the ends justify the means.”

Wednesday, January 12, 2011

"A Very Strange As-Applied Challenge"

Every year, the Texas Court of Criminal Appeals sees challenges to the constitutionality of the Texas death penalty scheme from death row inmates…and every year, the CCA affirms the practice. John Edward Green, Jr. is trying a novel approach to the subject. He is charged with capital murder and rather than waiting to be convicted and sentenced to death, he is challenging the death penalty statute before trial. As the CCA states:

Mr. Green appears to seek a pretrial ruling from the trial court judge that the State is not entitled to proceed with its capital-murder indictment in this case because it is within the realm of possibility that Mr. Green could be wrongfully convicted and wrongfully sentenced to death if convicted. The question before us is whether Mr. Green is entitled, under Texas law, to a pretrial hearing and a pretrial ruling that would deprive the State of the opportunity to try its capital case and seek the death penalty against Mr. Green.
An intriguing challenge indeed, but not one that the CCA is likely to entertain. The Court goes on:

He is asking Texas trial and appellate courts to entertain a purely hypothetical claim and make an advisory ruling in a case that has not been litigated to any final resolution. Neither trial nor appellate courts may entertain hypothetical claims.
Just as I suspected. Without a conviction and a death sentence, it is rather difficult to challenge the constitutionality of the death penalty statute “as applied.” The simple risk of an innocent person being convicted – as evidenced by past innocent convictions – is not enough, says the CCA.
And we have explicitly held that the risk that some other possibly innocent person might be executed does not violate a third person’s–the defendant’s–due process rights, nor does it violate the Eighth Amendment.
Defendants certainly are getting more creative in confronting Texas death penalty statute, but for now, it stands firm. What form will the next attack take? I’ll be interested to find out.

Thursday, January 6, 2011

Get This Man a Time Machine!

Click HERE to read about a Texas man that was recently cleared by DNA evidence for a crime that sent him to jail 30 years ago.  It's a shame Marty McFly and Doc Brown aren't around to transport him back in time to relive his life sans prison.

More coverage of this case HERE.