Friday, December 30, 2011

Scholars Give First-Hand Accounts of Archaeological Looting in Peru

Terraces at Choquequirao, Peru
Photo by Harley Calvert.  CC 
As the January 3 deadline approaches for submitting comments to CPAC (the Cultural Property Advisory Committee) regarding Peru's renewal request for import protections, some scholars have supplied firsthand accounts of the threats to cultural property in that country.

Brian Bauer of the University of Illinois remarks to CPAC:
"I am a Professor of Anthropology at the University of Illinois at Chicago, and have conducted archaeological research in Peru for more than 30 years. Looting is a huge problem in Peru and every day the archaeological record of its past civilizations becomes smaller as sites are destroyed. Much of the looting is fueled by the demand for artifacts, in both the art and antiquities market. The current restrictions on the importation of artifacts from Peru into the USA plays an important role in curbing the demand for these artifacts and helps to preserve archaeological sites. I urge you to continue as well as further strengthen these [regulations]." 

Dr. Margaret Jackson of the University of New Mexico writes in her public comments to CPAC:
"This message is in support of the proposed extension of the ban on archaeological and cultural properties from Peru. As a scholar specializing in art and cultural materials from the Andean region, I can personally speak about the kinds of damage caused by the illegal traffic in antiquities. I've witnessed it firsthand. When people think of ancient Peruvian culture, they often think of the pristine mountain fastness of sites like Machu Picchu, but unfortunately, the actuality is rather different. To supply a voracious art market, site after site will be chewed up by looters, bones and burials desecrated, architecture obliterated, fragile murals and other remains turned to rubble and cast aside. This happens at sites large and small all over Peru. Placing legal restrictions is the only way to curtail the destruction. I strongly support any measures toward this end."

And Maya Stanfield-Mazzi of the University of Florida describes:
"As a professor of art history at the University of Florida, I request that you renew the MoU with Peru to protect that country's cultural heritage. I have conducted research in Peru for several years and have seen the damaging effects of the theft and destruction of that country's heritage, both Pre-Columbian and Spanish colonial. These losses are damaging to the Peruvian people as a nation and to the Peruvian economy. It is important to the standing of the United States that it not be seen as complicit in the trade of illicit art and artifacts. Please continue to support Peru's efforts to conserve its heritage."

Comments regarding the Peruvian request for a Memorandum of Understanding (MoU) with the United States that would renew import protections pursuant to the Cultural Property Implemantaion Act (CPIA) may be submitted by clicking here.

Thursday, December 22, 2011

Alltop Lists Cultural Heritage Lawyer As Best of the Best - Thank You

Alltop, all the top stories

Merry Christmas to all my readers.  Courtesy of your interest in and subscriptions to this blog, an early gift arrived today.  Alltop placed Cultural Heritage Lawyer on its Top Archaeology News site.  This blog is honored to join the ranks of such prestigious publications as Archaeology magazine, ScienceDaily, and Looting Matters on Alltop's list.  Thank you to all my readers.

Wednesday, December 21, 2011

Closing the Loophole on Outcry Witnesses

Sanchez v. State – Recently released and designated for publication, the Texas Court of Criminal Appeals considered the admissibility of outcry statements by alleged child sexual assault victims.

In this case, appellant was charged with sexually abusing his step-daughter. The step-daughter had made an outcry statement to a witness who ultimately became unavailable. The outcry witness was available at a pretrial hearing and testified as to the extent of the outcry and as to the statement made to her. At trial, after the State discovered that the outcry witness was unavailable to testify, the prosecutors moved the court to read the testimony that was taken during the pre-trial hearing to the jury. Over defense objections, the trial court allowed the testimony to be read to the jury. Appellant was convicted on multiple counts of sexual assault, and received concurrent sentences of 28, 15, 7, 5, and 5 years for his convictions.

The defense’s primary objection at trial was that by allowing the prior testimony to be read to the jury, the court violated Sanchez’s Sixth Amendment right to confrontation.

Article 38.072 of the Code of Criminal Procedure allows a victim’s out-of-court statement made to an outcry witness to be read into evidence so long as that statement is a description of the offense and is offered into evidence by the first adult the complainant told of the offense. The problem with the case against appellant was that, while the hearsay of the victim’s statement to the outcry witness would have been admissible under 38.072 of the Texas Code of Criminal Procedure, reading the testimony of the unavailable outcry witness to the jury at trial was hearsay within hearsay. The Court noted that “in order to introduce testimonial hearsay over a Sixth Amendment objection, the State must show that the declarant who made the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine that declarant.”

The Court boiled the case down even further by concluding that the ultimate issue in this case was whether appellant had an adequate opportunity to cross-examine the outcry witness at the Article 38.072 hearing. The Court stated that the only relevant question at an Article 38.072 hearing is whether, based on time, content, and circumstances of the outcry, the outcry is reliable. Because an Article 38.072 hearing does not provide an adequate opportunity to cross-examine an outcry witness’s credibility, the Court held that admitting the testimony from the pre-trial hearing to be read to the jury violated appellant’s Sixth Amendment right to confrontation. The court reversed the case and remanded it to the Court of Appeals for an analysis of harm caused by the unconstitutional admission of the outcry witnesses’ pre-trial testimony.

With this holding, the CCA sent a message to the State that it won’t be allowed to “backdoor” hearsay if the outcry witness becomes unavailable at trial.

Tuesday, December 20, 2011

Brogan Museum To Close on January 15

Brogan Museum
Source: Ebaye
Just a little over a month after authorities seized the Cristo Portacroce from the Brogan Museum in Florida (see here), directors announced that they will close the doors to the museum indefinitely on January 15 because of financial problems.  Watch the WCTV report here.  It remains to be seen if the museum will reopen.

Monday, December 19, 2011

Landau Files Motion to Suppress in Theft of Major Artwork Prosecution

Baltimore Division courthouse.
Source: US District Court of Maryland
Lawyers for Barry Landau have filed a motion to suppress the evidence the government obtained from a search of Landau’s home.  Landau is charged in Maryland federal district court with conspiracy and theft of major artwork. See here for background.

Landau is scheduled for trial in February and is presumed innocent unless found guilty beyond a reasonable doubt.  His co-defendant, Jason Savedoff, entered a guilty plea earlier this year.  Find more information at this

Federal agents executed a search warrant on July 12, 2011, reportedly seizing historical documents from Landau’s New York City apartment.  But Landau claims, through his counsel, that the search warrant lacked sufficient probable cause and, therefore, the evidence seized cannot be admitted by the government at trial.

The motion to suppress contends that police observed Savedoff acting suspiciously at the Maryland Historical Society (MHS), and it was Savedoff who was found with historical documents after being arrested.  Despite the fact that Landau was not seen to have acted suspiciously and that Landau did not have possession of any historical documents, police unlawfully placed Landau under arrest and acquired a search warrant based on specious facts, the motion argues.  The motion to suppress explains:

"The affidavit provided to Judge Katz in support the respective applications for search and seizure warrants failed to establish probable cause to permit the searches authorized.  Because there was no evidence recovered from Mr. Landau, and no one observed him stealing any documents or acting inappropriately while at the MHS and prior to his arrest, there was no probable cause to allow a search of his residence and all evidence seized at this apartment pursuant to the search warrant should be suppressed."

Sunday, December 18, 2011

"Lava Treasure" Prompts INTERPOL Alert to Dealers and Collectors

INTERPOL (the International Criminal Police Organization) has issued an alert to specialist dealers and coin collectors.  The agency seeks to recover gold coins and plates discovered off the coast of Corsica more than 25 years ago.  The 1700 year objects are part of the "Lava Treasure."

Authorities have been attempting to reclaim the Roman-era items after identifying divers who made off with the find from French waters and then sold the haul for millions.  France prosecuted eight people implicated in the case, and the nation recovered coins and a plate from the treasure last year worth up to nearly three million dollars.  Many unrecovered items could still be on the market.  Click here for more background on the case.

Anyone with information about gold coins or plates from the Lava Treasure should contact INTERPOL here.

Friday, December 16, 2011

Vigilant Border Protection

Out near El Paso, the law enforcement folks are pretty anal about boundaries.  Apparently, their “border-protection” mentality applies equally to law enforcement officers from neighboring jurisdictions.  Below is a summary from a federal quarrel between officers of El Paso and Hudspeth Counties.  While it isn't directly on point for this blog, it is tangentially related to Texas criminal law and it has a little bit of 4th amendment seizure flavor to it.

Short v. West, Fifth Circuit Court of Appeals - November 2, 2011

Appellant was an officer in the El Paso Police Department, (EPPD) assigned to a narcotics task force for the 34th Judicial District. The 34th Judicial District includes both El Paso and Hudspeth counties. While conducting a task force related traffic stop in Hudspeth County, appellant encountered a Hudspeth County Sheriff Department (HCSD) deputy who asked him what he was doing there.  Appellant identified himself to the satisfaction of the deputy and told her that EPPD task force officers were working in Hudspeth County.  The deputy contacted her dispatcher who in turn called Hudspeth County Sheriff West and told him that EPPD officers were performing traffic stops in Hudspeth County.  Sheriff West ordered his deputies and find out whether the EPPD officers were, in fact, law enforcement officers.  Sheriff West also ordered his deputies to round up the EPPD task force officers and escort them to his office.

A lieutenant in the HCSD located appellant’s supervisor, who produced identification showing him to be an officer with the EPPD and the task force.  Appellant’s supervisor ordered him and the other task force members to return to El Paso County.  While on the way back to El Paso County, appellant and several task force members were stopped and surrounded by HCSD deputies.  The HCSD deputies ordered appellant and the other task force members to go to a nearby HCSD substation.  They were told that they would be arrested if they failed to comply.  Appellant and the task force members went to the HCSD substation where Sheriff West complained that he had not been notified of the task activities in his county. He then told the task force officers that they were free to leave.  Appellant sued Sheriff West under 42 U.S.C. § 1983 for violating his rights under the Fourth Amendment.

The court held that Sheriff West was not entitled to qualified immunity.  First, the court found that appellant was seized for Fourth Amendment purposes. The HCSD deputies surrounded the task force officers’ vehicles preventing them from returning to El Paso County.  In addition, appellant was threatened with arrest if he did not accompany the deputies to the HCSD substation.  A reasonable person would not feel free to ignore such a show of force and go about his business.

Second, the court found that such a seizure was objectively unreasonable.  Sheriff West ordered the task force officers to be detained and brought to the HCSD substation so he could personally examine them. This was not likely to quickly confirm or dispel his suspicions as to whether or not the task force officers were legitimate law enforcement officers.  There were less intrusive ways to accomplish this.  Sheriff West could have contacted the EPPD Chief, whom he knew or he could have run the license plates on the task force officers’ vehicles. It was unreasonable to not recognize or pursue these options as alternatives to seizing Short.

Thursday, December 15, 2011

Cultural Heritage and War: A Video Report on Libya

A recent video produced by reports on cultural heritage in Libya in the context of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.  The short, two part film titled NATO and Libya - Cultural Heritage in Times of Unrest can be viewed below.

One important remark is made by Dr. Joris Kila, Chairman of the International Military Cultural Resources Work Group.  He explains that friendly military forces committed to protecting cultural property can deny enemy forces a potential reservoir of military financing.  The comment is another reminder that meaningful investigation to uncover the connection between illegal antiquities trafficking and weapons purchases is sorely needed.

Part I

Part II


Wednesday, December 14, 2011

Consummation Optional for Credit/Debit Card Abuse

Section 32.31(b)(1) of the Texas Penal code provides that a person commits the offense of Debit Card Abuse if that person “presents or uses” a debit card that was not issued to him and is not used with the owner’s consent.  But what does it mean to “present” or “use” a debit card? Can someone “present” a debit card without “using” it?

The Texas Court of Criminal Appeals considered this issue recently in the case of Clinton v. State.  In this case, the appellant had been convicted of the state-jail felony of debit card abuse after she used a stolen debit card to attempt to purchase cigarettes at Wal-Mart.  Notwithstanding the fact that the store declined the card and appellant never completed the transaction, the jury convicted her of “using” the stolen debit card under Section 32.31 (the State did not charge her with “presenting” the card).

On appeal, the 6th District Court of Appeals (Texarkana) reversed the conviction and reformed the judgment to reflect a conviction for the lesser-included offense of attempted debit card abuse.  The COA reasoned that appellant did not “use” the debit card, but rather “presented” it.  Because the transaction was not ultimately consummated and she did not obtain a benefit, the COA held that the evidence was insufficient sustain her conviction for "use."

The Texas Court of Criminal Appeals took the case on the State’s petition for discretionary review.  The State argued that the COA erred by requiring that “use” of a debit card include proof of consummation of the transaction.  The CCA held:
Based on the ordinary meaning of the words as used in the statute, we conclude that the statutory terms “use” and “present” may overlap in meaning, that a transaction need not be consummated to support a jury finding that a defendant used a debit card, and that the court of appeals erred by determining that the evidence is insufficient to establish debit card abuse.
The CCA concluded that appellant “used” the debit card when she swiped it through the card reader for the purpose of purchasing cigarettes.  Accordingly, the CCA reversed the COA and reinstated the judgment of the trial court.

Judge Price concurred in the opinion, but wrote separately to opine that presentment is subsumed by use and should not be given independent legal signifigance apart from use.

Thursday, December 8, 2011

CPAC Will Meet to Consider MoU Extensions with Cyprus and Peru - Public Comments Period Open

Extensions of the Memoranda of Understanding (MoU) with Cyprus and Peru will be taken up by the Cultural Property Advisory Committee (CPAC) at their next meeting in Washington, DC.  A public session will be held on January 18, 2012 to consider extending the bilateral agreements the United States has with these nations, which implement US import protections covering jeopardized cultural property.

An MoU is enacted pursuant to Article 9 of the 1970 UNESCO Convention (the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property).  The treaty is implemented in the US by the federal Cultural Property Implementation Act (CPIA).  Import protections granted under the CPIA last for five years and may be renewed.

To attend the public session, reserve your place by calling  the Cultural Heritage Center of the Department of State at (202) 632–6301 by 5 p.m. EST on January 3.

Byzantine bronze cross from Cyprus
subject to US import protections.
Source: US State Dept.
Public comments may be submitted electronically to CPAC.  Click here to comment on the Cyprus MoU extension, or here to comment on the Peru MoU extension.  Comments are due January 3 by the end of the day.  If you encounter any problems, visit the eRulemaking web site at  Enter docket number DOS-2011-0135 for Cyprus or docket number DOS-2011-0136 for Peru and follow the instructions on the web site.  Be aware that the electronic submissions process sometimes can be cumbersome.  Comments may also be mailed to:

Cultural Heritage Center (ECA/P/C)
SA-5, Fifth Floor
Department of State
Washington, DC 20522-0505

The comments must address one, some, or all of the four determinations outlined by the CPIA.  Quoting 19 USC 2602, the four determinations are:

(A) [whether] the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party;

(B) [whether] the State Party has taken measures consistent with the Convention to protect its cultural patrimony;

(C) [whether] --

(i) the application of the import restrictions . . . with respect to archaeological or ethnological material of the State Party, if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not State Parties [to the 1970 UNESCO Convention]) individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and

(ii) remedies less drastic than the application of the restrictions set forth in such section are not available; and

(D) [whether] the application of the import restrictions . . . in the particular circumstances is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

Another Confrontation Case at the Supremes - Williams v. Illinois

This Tuesday (6 Dec 11), the United States Supreme Court heard another Confrontation Clause case (Williams v. Illinois) dealing with forensic testing (ala Melendez-Diaz and Bullcoming).  The question presented was
Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.
At trial, the state called a DNA expert to testify about how it matched the accused's DNA profile with DNA evidence recovered from a rape victim, but the state did not call a DNA analyst from the company that conducted the initial testing.  The defendant later claimed that his right to confrontation was violated because he was denied an opportunity to question all of the DNA analysts that tested the evidence.  The Court was hotly divided on the issue, at times debating amongst themselves. 

Robert Barnes of the Washington Post covered the case HERE.  I couldn't attend the hearing, so I'll rely on his account of the oral argument.

The ABA preview of the case, which briefs and such, is HERE.

European Union Seeks Comments Relating to Cultural Property Protection

The European Commission (EC) of the European Union (EU) says in a November 29, 2011 press release that it is seeking comments on "on ways to improve the safe-keeping of cultural goods and the return between Member States of national treasures unlawfully removed from their territory."  The EC consists of a representative group of Commissioners who serve as the executive body of the EU.

The European Commission's public statement adds that it "launched a public consultation on ways to improve the safe-keeping of cultural goods and the return between Member States of national treasures unlawfully removed from their territory. The consultation will provide an insight into the views of public authorities, citizens and other stakeholders on the most effective way to facilitate such return."

Vice President Antonio Tajani
EC Vice President Antonio Tajani is quoted as saying: "Today, the illicit trafficking of cultural property is a major problem, going beyond a significant economic dimension, to affecting the core of our cultural identity. I share the increased concern of citizens and Member States and I am working to improve the situation. Please be a part of this effort and let us have your comments and ideas".

Contact information regarding where to send comments may be found here [Update 1/24/12: this link apparently has been suspended].  The deadline is March 5, 2012.

Wednesday, December 7, 2011

CCA Recognizes "Grooming" as a Legitimate Subject of Expert Testimony

Today, in Morris v. State, a 6-3 opinion authored by Presiding Judge Keller, the Texas Court of Criminal Appeals held (by taking judicial notice) that "'grooming' of children for sexual molestation is a legitimate subject of expert testimony."  The opinion, which reads like a law review article at times, goes into great detail about the state and federal courts that have long recognized "grooming" as an appropriate (and helpful) area for expert testimony. (If you don't know what "grooming" is, HERE is the Wikipedia definition.)

Judge Price's dissent is highly critical:
After doing the vast bulk of the research for the State, the Court now essentially holds (despite the absence of any actual litigation on the subject below) that case law from other jurisdictions demonstrates that grooming is such a well-established psychological concept that the State, as proponent of the grooming-based testimony here, need not have been required to prove it at all.
Believing the trial record too bare for the Court to take judicial notice of the reliability of grooming-based testimony, Judge Price dissents.  Judges Meyers and Womack joined the dissent.

Judge Meyers also dissented, stating:
Irrespective of whether the study of “grooming” behavior is a legitimate field of expertise, I do not think [the expert in this case] was qualified to be an expert on this issue. He had no degree in any field of study involving human behavior, no specialized training in “grooming” behavior, and he did not show that the training and experience he did have enabled him to distinguish such behavior.
Judges Womack and Price joined the dissent.

Judge Cochran concurred in the judgment and would hold that grooming is an experiential field rather than a "soft science":
This is not rocket science. It does not depend upon any scientific, technical, or psychological principles or methodology. This type of testimony does not depend upon educational expertise, any calculable rate of error, learned treatises, peer review, or any other esoteric skill. This is not even “soft science.” It is just “horse sense” expertise developed over many years of personal experience and observation.
While they all seem to agree that "grooming" is an appropriate area for expert testimony, the lingering question (at least for me) is - What does it take to qualify someone to be an expert witness on child grooming?  A question for a later day I suppose.

Tuesday, December 6, 2011

MoU Extended With Bolivia - US Customs Issues Final Rule

Tamucumira Mask.
One of the Bolivian objects subject to
CPIA import regulations.
Photo courtesy US State Dept.
The US government has extended import protections over archaeological and ethnological objects from Bolivia. The two governments entered into a bilateral agreement  in 2001 pursuant to the Cultural Property Implementation Act (CPIA), which gives force to the 1970 UNESCO Convention (the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and transfer of Ownership of Cultural Property). Import restrictions under the agreement last five years and may be renewed each period.

Bolivia received emergency protection under the CPIA in 1989.  A bilateral agreement, or Memorandum of Understanding (MoU), was finalized in 2001, and the US government renewed that MoU in 2006.  The latest renewal occurred earlier this year.  The Federal Register reports:

"On August 26, 2011, after reviewing the findings and recommendations of the Cultural Property Advisory Committee, the Acting Assistant Secretary for Educational and Cultural Affairs, United States Department of State, concluding that the cultural heritage of Bolivia continues to be in jeopardy from pillage of certain archaeological and ethnological materials, made the necessary determination to extend the import restrictions for an additional five years. On November 10, 2011, diplomatic notes were exchanged reflecting the extension of those restrictions for an additional five-year period."

On December 1, 2011, US Customs and Border Protection published its final rule describing the specific import regulations.  The rule may be found here.

Thanks go to Gary Nurkin for news of the rule's publication.

Friday, December 2, 2011

If You Don't Have Anything Nice to Say...

After the defendant was convicted in the case of State v. Lucio, and the case proceeded to the punishment phase, the jury noticed something conspicuous about the defense case…nobody from the defendant’s family came to the witness stand to testify on his behalf. No poor momma with tears in her eyes. No sister or brother to testify about what a good person the defendant is at heart. Nothing. Just crickets. Curious about why nobody from the defendant’s family testified, the jury sent a question in to the trial judge while they were deliberating on the sentence:

Does the law prevent a family member from speaking during the sentencing phase, for the defendant?
Over defense counsel objection, the trial court provided the following response to the jury:

The law does not prohibit a family member from testifying on behalf of a defendant so long as the witness has relevant evidence related to an issue in the case. You have heard all of the witnesses who have been called to testify. Please continue your deliberations.
Of course, there were two inferences that the jury could reasonably draw from the instruction: (1) none of the available family members could provide relevant information, or (2) the defendant did not want to call any family members because they would not provide favorable testimony.

On appeal, the defense argued that the trial court’s instruction was an improper comment on the evidence. The 2nd District Court of Appeals (Fort Worth) disagreed and the Texas Court of Criminal Appeals granted discretionary review to settle the issue. Here’s what the CCA held:

We conclude that the general rule that prohibits the court from singling out a particular piece of evidence in its instructions to the jury given prior the jury deliberations does not necessarily apply when the court merely responds to the jury’s question concerning a subject identified by the jury.
The court noted that the court’s instruction was a correct statement of the law that did not improperly convey a “personal estimation of the strength or credibility” of evidence. The CCA affirmed the court of appeals.

Judge Meyers dissented, opining that:

the trial court’s instructions indicate to the jury that it is permissible to focus on the fact that the defendant’s family did not testify at punishment. In doing so, the judge expressed an opinion as to the weight of the evidence…

Thursday, December 1, 2011

US-Greece MoU Produces Final Cultural Property Import Protection Rule

United States Customs and Border Protection today issued the final administrative rule covering import restrictions covering archaeological and ethnological material from Greece. The rule follows the July 17, 2011 adoption of a memorandum of understanding (MoU) between the United States and Greece under the Cultural Property Implementation Act in accord with the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. The MoU entered into force on November 21, 2011 and can be found here.

Greek mosaic.
Source: Bijan.  CC.
Import protections are now in place on Greek archaeological and ethnological cultural items dating from around 20,000 B.C. through the 15th century A.D. These restrictions last for five years and were instituted in order to "control illegal trafficking of such articles in international commerce" and to protect "endangered cultural property," according to the rule.

Ancient objects subject to seizure at the American border include those made of stone, metal, ceramic, bone, ivory, glass, faience, textile, papyrus, paint, mosaic, wood, glass, and parchment. The import restrictions cover sculptures, sarcophagi, reliefs, furniture, vessels, tools, weapons and armor, coins, beads, pottery, musical instruments, documents, paintings, floor mosaics, and more.

Lawful entries of these specified cultural objects are permitted in certain cases. For example, a valid export permit from Greek authorities would allow an archaeological or ethnological cultural object to enter the US border.

The Federal Register has published the rule at 19 CFR Part 12.  Click here for the full text.