Ithaca DWI Lawyer How 5 Minutes Can Cost You Your License?

I love NY, the New York Public Library, What a Grand Building!

You know they say "timing is everything." As long as I live and as hard as I work as an attorney to either help people keep their driver's licenses or get back their driving privileges human nature loves to rear it's ugly head. When people have a DWI or DWAI or ADWI conviction they will have to take the New York DMV DDP (drinking driver program), they will get a conditional driver's license (called a post-revocation CL), and then upon completion they will get back their FULL license.

PRIVATE Agents with PUBLIC Power

THE NYS DMV DDP: This seven week program is sub-contracted to a local "private" agency. Much like the Ignition Interlock Devices (also sub-contracted locally) to "private" agents, these people are now entrusted with GOVERNMENT POWER.

What is Government Power?

It is the ability to call you out on any deficiencies in meeting your government (Court) obligations/duties.

You are ORDERED to take the DDP (drinking driver program).
You are ORDERED to get an IDD (ignition interlock installed) on your car.
You are ORDERED to complete these requirements (1) within a given period of time and (2) successfully.

Successfully means you comply with all their directives (the course givers and installers). So these "private" agents now get to run you, to tell you what to do, and when to do it.

IIDs (ignition interlock devices)

Every 30 days you must get your IID checked and downloaded OR else? If you don't, you are reported to the County Monitor (a division of County Probation and/or the District Attorney's office) as a VIOLATOR.

What does it really mean to show up late to the DDP?

You must complete your 7 week DMV DDP. You must participate and you must be there on time or else?

If you show up late (even by 5 minutes) some of these DDP providers will LOCK YOU OUT!
Imagine if you will people crying in the halls as they come to a DDP door that is locked. Why are the crying?

Because you will have to wait another 7 weeks until that session # circles around again. As in, the sessions run consecutively (1 to 7) and any one session that is missed must be MADE UP. Which means you don't get your full driving privileges back for almost another 2 months. Think about that, your 5 minutes late for class and it will cost you 2 months of full driving privileges.

Lord Acton said it best, "power tends to corrupt" and "absolute power corrupts absolutely. Great men are almost always bad men." Dealing with prosecutors, district attorneys, and Judges over a great many years I don't always agree with their decisions but respect their roles and authority.

Ah the cost of tardiness, I can remember from all my college days, we would wait on teachers based upon their level, 5 minutes for grad student, 10 for a professor, and 15 for a doctor (phd) or something like that?

KEY TAKEAWAY

Take this stuff SERIOUSLY. Do not willy nilly play with the Ignition Interlock Device, or the private installer, or with your DDP obligation. BE ON TIME! All of it including the VIP (victim impact panel) must be taken SERIOUSLY. Did I say serious enough?

http://www.ithacadwi.com

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com

Horseheads Lawyer Attends Representing the DWI Defendant in New York

From the 2012 Big Apple DWI Seminar

This past week I jumped on a Jetblue flight from Syracuse to JFK on Thursday to attend the Big Apple DWI event in NYC. I have been to it many times before but with all the new interpretations of law and the NEW DMV rules/regulations this was a MUST see event not a maybe. My first stop was out in Great Neck to have a nice Greek style breakfast with one of my mentors Medical Malpractice Attorney Gerry Oginski. Gerry is great to break bread with (actually grilled pita). He is one of the best NY injury attorneys and people I have the privilege to know. Sharing legal ideas and inspired practice knowledge with this man was an amazing start to an even better weekend. I jumped the train from Great Neck to Penn Station, fast and easy, into the city in 20 minutes.

It's 2012, and this was the first time that the Big Apple DWI seminar put on by the NYSBA (New York State Bar Association) sent their materials via pdf files. It's about time! Less books to lug home and less to encumber my leaning bookshelf. I would rather bring my Mac Air than 4 lbs of books.

I love to go to seminars, especially in THE CITY (NYC). I love to eat the foods of my youth. NYC hands down has some of the best of everything. I have traveled the world, and NY has better Greek than Greece, better Chinese than China, better Japanese than Japan, well I think you get my point. So this kid from Bklyn took in a Broadway show with Pacino (yeah, Al Pacino), Glengarry Glen Ross, and ate some real deli and pizza. What a day! I love America!

Ben's Deli, absolutely amazing Corned Beef and Pastrami

Gotham Pizza in Chelsea, they use cornmeal in the crust

Old Ideas and New Perspectives

I always manage to learn something new and more importantly gain new perspectives on things I thought I knew. I've been going to this one since 2006, and even some of the same materials and information can come with a new perspective and insight. I've read some books in my library dozens of times over my years with the same idea,as I mature I see things (read things) differently. You never stop learning, as they say if you are green you are growing and if you are ripe you rot! I like to stay in a state of greenness, greennosity is my made up term for being in a state of greenness!

Going to conferences is also an opportunity to see new places, meet new people, and take in the sites of the "big" city. Most of these get togethers (practically all the DWI ones) do not occur anywhere near to Ithaca, NY or the Fingerlakes region. They are in places like Albany, Rochester, and NYC.

The two main speakers were Peter Gerstenzang and Eric Sills, they are the authors of New York's main DWI bible. It is recognized by almost everyone (including judges) as a reference book. As Peter liked to joke he is "highly acclaimed" and a gracious man to boot.

The New DMV Rules/Regulations 

Recent changes were made to the DMV license rules for "Persistently Dangerous Drivers" (multiple DWs, Serious Traffic Offenses) with lifetime look back periods. These new REGS look back (retroactively) upon the persons lifetime of driving because the DMV keeps a "lifetime" record not merely the 10 year driver's abstract that you can request for $10. It used to be the look back was the 10 year time frame, then a 25 year time frame, and now we are looking back over a person's life history.

I am left to wonder:
Is this a sign of the times? Is this going to be a trend? A dangerous direction to hold things against people for a lifetime, and scarier still things they did in their immature youth.

1st BIG Idea: You Must FOIL  

Going to the DMV and requesting your record is not going to be enough these days. You are going to have to FOIL request your lifetime record with the DMV in Albany, NY.

Freedom of Information Law (FOIL)

New York State’s Freedom of Information Law (Public Officers Law §87 et. seq. ) allows members of the public to access records of governmental agencies. FOIL provides a process for the review and copying of an agency’s records. More information about the Freedom of Information Law can be found at: http://www.dos.state.ny.us/coog/foil2.html.

Most people either don't know or can't remember what happened to them last week let alone 25 years ago. DO a FOIL Request 1st!! Get your COMPLETE LIFETIME RECORD. This is always the best starting point. 

Most of what the NYS DMV rules/regs are about are those currently revoked and are looking to get back a driver's license. 

What is unspoken and unwritten (kinda between the lines) is that those with significant histories (either DWs or serious traffic offenses) are one step away from  a permanent lifetime revocation for ANY traffic violation/infraction they will incur in the immediate future. 

2nd Big Idea: The Potential Magic of the Coram Nobis

Sometimes a prior driving history can be re-opened with a Coram Nobis Motion. A Coram Nobis is a Motion to Vacate a prior plea of guilty to some offense. This may be the dividing line between getting a license, losing a license, or never getting a license. Because prior cumulative points, 20 points in 25 years or high point violations (those with 5 or more: like passing a school bus, high speeds, reckless) will count as 

SDOs (serious driving offenses). 

The interpretation of all the new regs is tedious and somewhat complicated. he main point is to get your driving history and review it as to total points, total offenses, total DWs, and timing/dates.

Sometimes it Begins with Correcting the Past

Believe it or not sometimes the Courts write in the wrong dates, the wrong offenses, and a review of the windows (10 year, and 25 year periods) is vital under these cases. 

Remember that the Date of Conviction = Date of the Plea, NOT the date of the Sentencing. Times and dates can make a difference to the overall outcome. Anyway, I could blog away on this and a million other topics today but instead I will re-organize and simply all of it first into bite size pieces.

http://www.ithacadwi.com

Lawrence A. Newman, D.C., Esq.

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

newman.lawrence@gmail.com

Jail or No Jail? Sentencing Arguments Filed in US v. Khouli

Mousa "Morris" Khouli will be sentenced this week in federal court in Brooklyn.  Khouli's lawyer, Gerald Shargel, seeks a sentence of probation while the prosecution wants imprisonment.

[UPDATE 11/21/12: Judge Edward R. Korman on November 20 sentenced Khouli to terms that included six months home confinement, one year probation, up to 200 hours of community service, and a criminal monetary assessment of $200.  Judge Korman departed from the federal sentencing guidelines when issuing the order.  Khouli also agreed to forfeit the property seized.]

Assistant United States Attorney Karin Orenstein submitted written arguments to the U.S. District Court for the Eastern District of New York in advance of the sentencing, asking for 46-57 months of incarceration. The prosecutor writes:

Source: ICE

"The smuggling of the Egyptian antiquities that are the subject of the Indictment comprised but a small part of the defendant's smuggling career. ... His willingness to invent provenances to 'launder' cultural property has added an air of legitimacy to items that should be scrutinized as potential stolen property. Indeed, the defendant sold at least one antiquity, the terre-crue head, that was stolen from Iraq. Last, the defendant lied to government agents repeatedly to cover up his criminal conduct."

But Khouli's lawyer argues in court papers that similarly situated defendants have not received sentences of imprisonment. Cultural property dealers, an American soldier, a book author, and a hand surgeon have all received probation for smuggling cultural property, the defense argues.  The defense points to ten criminal cases involving 25 defendants to show that probation is the typical sentence handed down by the courts.

Federal prosecutors counter in their pleadings "that the combination of the rarity of cultural property smuggling prosecutions accompanied by a pattern of non-incarcerative sentences has failed to have a deterrent effect. To the contrary, the remote possibility of a non-jail felony conviction has become the cost of doing business." They add, "Unlike securities dealers or government contractors, dealers in cultural property can continue to work in the same field despite convictions for smuggling and lying to government agents."

Prosecutors concede that "smugglers of cultural property have generally received non-incarcerative sentences" but observe "that that these sentences often include a period of six months or a year of home detention as well as forfeiture and fines." Cases cited by federal prosecutors include (with descriptions and sentences supplied by this author):

• United States v. Malter, (a case that includes Malter Galleries, Inc.) 09-CR-834 (C.D. Cal.): Pleas of guilty in 2012 to illegal trafficking of artifacts from federal land in violation of the Antiquities Resources Protection Act. Charges dropped involving illegal pre-Hispanic ceramic vessels and artifacts from El Salvador.  Sentence imposed of one year home detention, two years probation, payment of $10,000 of community service to the National Park Foundation Pacific West Region Archaeological Investigation fund, special assessment of $100, restitution in the amount of $6,215.57, and a fine of $8,000.

• United States v. Perez, 07-CR-499 (C.D. Cal.):  Plea of guilty in 2012 to a single count indictment of smuggling a pre-Hispanic bowl from El Salvador in violation of 18 USC 545 without an export permit as required by 19 USC 2606(a) of the Cultural Property Implementation Act (CPIA). Sentenced to six months house arrest and a fine of $10,000.

• United States v. Johnson, 08-CR-491 (S.D.N.Y.):  Egyptian stolen property case with a plea of guilty in 2008 to misdemeanor count (dropped from a felony) of receiving stolen property within special maritime and territorial jurisdiction pursuant to 18 USC 662.  Sentenced to restitution in the amount of $21,200 plus a special assessment of $25 and 18 months probation with the first six months served in home detention.

• United States v. Braude, 03-CR-1009 (E.D.N.Y.):  Pleas of guilty to smuggling under 18 USC 545 and false statements under 18 USC 1001 for trafficking three Iraqi cylinder seals. Sentenced to six months house arrest and a fine of $2000 plus $300 assessment.

"Khouli's professional life has suffered tremendously," argues Khouli's attorney, adding that others do not want to engage in business with a felon who is seen a "a pariah in the industry."  That is why "the government's deterrence arguments [in favor of incarceration] are meritless," he writes.

The defense additionally takes issue with the prosecution's assertion that Khouli had knowledge that an Iraqi terre-crue artifact was stolen.  The defense also emphasizes that "their is no claim that any antiquities at issue in this case were stolen or looted, possessed by Khouli in violation of U.S. law, or imported in violation of Egyptian patrimony laws" (emphasis in the original).

Federal prosecutors want the court to consider that "the defendant flouted Customs regulations time and time again for his own pecuniary gain" and that "Khouli lied to Customs for years and covered up those lies by making false statements directly to investigating agents." They conclude, "A nonincarcerative sentence under these circumstances does not promote respect for the law."

Mousa "Morris" Khouli pleaded guilty on April 18, 2012 to smuggling Egyptian cultural property into the United States and making a false statement to law enforcement authorities.  The antiquities dealer was indicted by a federal grand jury in 2011.  Also indicted were Joseph A. Lewis II, Salem Alshdaifat, and Ayman Ramadan who continue to litigate their cases. Ramadan remains at large.


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Jonathan Cooper, Esq.:Why the NY Lawsuit Against LIPA is a Mere Publicity Stunt

From Betsy Combier:

It seems to me that Attorney Cooper is addressing the Courts' interest in not opening up "Pandora's Box" when wrong-doing occurs. If stealing, plundering, and negligence have been overlooked by the Court in the past, why not keep overlooking it?

This has to change.

Betsy Combier 

LINK

I hope I'm wrong about this. But I highly doubt it.

I just had my power restored on Sunday morning, and my phones and internet were just restored two days ago in the aftermath of Sandy. I heard over the radio that a class action lawsuit charging LIPA with negligence has been filed. Since, at least in theory, I would be a member of that class, I certainly hope it succeeds. But I don't think it will.

Here's why:

In the aftermath of another blackout, New York State's highest court issued a decision issued in 1994 and went to the unusual step of acknowledging publicly their reluctance to impose liability for negligence on a public utility because of broader policy concerns, including potentially devastating financial damages, stating:

"This Court has from time to time addressed the scope of the duty of a utility, or a similarly situated entity, arising from negligence in the performance of contractual obligations ( see, e.g., Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 557 N.Y.S.2d 286, 556 N.E.2d 1093; Strauss v. Belle Realty Co., 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34, supra; Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896). Consistently, this Court has emphasized that determining the scope of the duty and the consequent sphere of potential liability is fundamentally a policy question, with the objective being to " 'fix[ ] the [entity's] orbit of duty' " so as to " ' "limit the legal consequences of wrongs to a controllable degree" ' " ( Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., supra, 76 N.Y.2d at 226-227, 557 N.Y.S.2d 286, 556 N.E.2d 1093; Strauss v. Belle Realty Co., supra, 65 N.Y.2d at 402, 492 N.Y.S.2d 555, 482 N.E.2d 34; Moch Co. v. Rensselaer Water Co., supra, 247 N.Y. at 164-168, 159 N.E. 896; cf., ***689 **271 Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 585-587, 611 N.Y.S.2d 817, 634 N.E.2d 189). We noted in Palka that the existence and scope of an alleged tortfeasor's duty, at the threshold, is a legal, policy-laden determination dependent on consideration of different forces, including logic, science, competing socioeconomic policies, and contractual assumptions of responsibility."

Simply put, even if the plaintiffs could prove that LIPA was grossly negligent and incompetent, I don't see a New York court opening Pandora's box and allowing them to recover consequential damages.

In fact, I would be quite surprised if LIPA doesn't move to dismiss the lawsuit from the get-go on these grounds.

Best regards,

New York Federal Court Denies Prokopi's Motion to Dismiss Dinosaur Forfeiture Case

Dinosaur seized by ICE.  Source: ICE.

Judge P. Kevin Castel yesterday denied Eric Prokopi's motion to dismiss in the case of United States v. One Tyrannosaurus Bataar Skeleton. Prokopi's lawyers petitioned the federal district court in Manhattan to quickly consider the motion following Prokopi's October 17 arrest for alleged illegal dinosaur bone importation and sales.

Prokopi is the claimant seeking the return of a Tyrannosaur Bataar skeleton (the "Defendant Property"), which Immigration and Customs Enforcement (ICE) seized on June 22, 2012 on grounds that the bones are stolen property.  The American government seeks to repatriate the bones to Mongolia.

Prokopi's lawyers argued that the government cannot forfeit the dinosaur skeleton as a matter of law and policy.  The federal court itself raised doubts about federal prosecutors' forfeiture arguments, but permitted the government to file a new complaint.  The claimant thereafter filed a renewed motion to dismiss.

The district court now concludes that the amended complaint filed by the U.S. Attorney's Office for the Southern District of New York "contained sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial."

The court notes that "the amended complaint alleges that Prokopi is a commercial paleontologist who has excavated skeletons in Mongolia before. This, coupled with Prokopi's alleged attempts to obscure the Defendant Property's country of origin on importation paperwork, raises a reasonable inference that Prokopi knew the Defendant Property was stolen from the Mongolian state."

Judge Kastel makes the following conclusions in his 19 page order:

• "Prokopi contends that the failure of the government to provide regulatory guidance on determining the proper country of origin or value of fossils leaves importers 'hard-pressed to respond to a customs broker's inquiry about the country of origin of a dinosaur fossil that existed millions of years before the emergence of Homo sapiens and even longer before the concept of a 'country' was established.' (Cl. Br. 14-15.) This argument fails because the statutes in violation of which the Defendant Property is alleged to have been imported do not prohibit the importation of paleontological objects in contravention of certain regulations, vague or otherwise (and indeed, Prokopi submits that there are no applicable regulations). Instead, they prohibit importation by way of knowingly false statements. 18 U.S.C. § 542. The prohibition in Section 542 against importation by means of 'any false statement' is not vague or ambiguous, and it does not make reference or in any way depend upon regulatory guidance concerning the proper country of origin or value of fossils."

• "The amended complaint alleges facts that ... suggest that the Defendant Property was unearthed, not millions of years ago, but between 1995 and 2005 (Compl. ¶ 44), and that, based on its size and coloration, the Defendant Property came from the Gobi Desert in Mongolia. (Id. ¶ ¶ 42-44, 58-65.) The amended complaint also raises a plausible inference that Prokopi's statements in connection with importation of the Defendant Property were knowingly false."

• "The amended complaint alleges that Prokopi erroneously listed the country of origin as Japan and Great Britain on importation paperwork when in fact the Defendant Property was from Mongolia. (Id. ¶ ¶ 38,51-54.) The amended complaint further alleges that Prokopi is a commercial paleontologist who had excavated fossils in Mongolia's Nemegt Formation himself before. (Id. ¶ ¶ 82-84.) These facts give rise to a plausible inference that Prokopi unearthed the Defendant Property himself in Mongolia, or, even if he did not, that he had reason to know that such fossils likely carne from Mongolia. The inference of knowing wrongdoing is buttressed by the allegation that Prokopi changed the country of origin on the March 22, 2007 shipment from Mongolia to Japan. (Id. ¶ ¶ 52-53.) There may be an innocent explanation for this change, but on its face the allegation suggests Prokopi's awareness of illegality and his attempt to avoid detection."

• "The same goes for the value of the Defendant Property. Collectively, the three shipments identified in the amended complaint had a stated value of $69,000, whereas the Defendant Property was listed at auction as having a value between $950,000 and $1,500,000. (Id. ¶ ¶ 38, 51, 54.) While it may be the case that Prokopi's efforts in assembling the contents of the shipments into a single display piece constituting the Defendant Property significantly increased the value of the fossils contained in the shipments, it is not implausible that the declared values--which appear to have understated the value of the Defendant Property by more than an order of magnitude--constituted knowing misstatements, and it is reasonable to draw an inference of wrongdoing on these facts at the pleading stage.

• "Prokopi's fair notice argument concerning Mongolian law also fails. It may be, as Prokopi contends, that 'fossil collectors could have no fair notice of Mongolia's laws cited in the Complaint,' as these are 'not readily available to the general public' (Cl. Br. 15), or perhaps that Mongolian law itself is impermissibly vague, but this does not appear on the face of the well-pleaded complaint and hence is not appropriate for consideration on a motion to dismiss."

• "Finally, Prokopi argues that the Defendant Property is not stolen property for purposes of any of the statutory bases of forfeiture because the amended complaint fails adequately to allege that Prokopi knew the Defendant Property was taken from Mongolia without that state's permission, and further because Mongolian law does not make fossils the property of the state. Although this argument raises a question of foreign law that the Court could decide on a motion to dismiss, the Court declines to make a final determination as to the content of Mongolian law in this interlocutory order, finding it sufficient to hold that the amended complaint states a claim for relief ...."

Hat tip: Gary Nurkin

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

New Allegations Raised in Sotheby's Forfeiture Case: Cambodian Statue Stolen in 1972 - Trafficked through Thailand with Head Removed - Scientist Fired [UPDATED]

Federal prosecutors on Friday filed a motion to amend their forfeiture complaint in the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's in New York, New York.  The U.S. Attorney's Office for the Southern District of New York filed the petition in Manhattan federal district court following a September 27 hearing on the claimants' motion to dismiss.

The government's case is an attempt to seize, forfeit, and repatriate a statue (the so-called Defendant in rem) offered for auction by Sotheby's this past spring. Sotheby's and Decia Ruspoli di Poggio Suasa are the claimants who want the Duryodhana sculpture to remain under their legal control.  Both claimants have vigorously contested the civil forfeiture action.

Federal lawyers, in their memorandum asking the court to accept the amended complaint, write that "[at the September 2012 hearing] the Court repeatedly inquired as to the facts the Government expected to be able to prove at trial with respect to the theft of the Defendant in rem from Prasat Chen, and Sotheby's knowledge that the Defendant in rem was stolen."  The proposed amended complaint and the supporting memorandum filed on November 9 contain the government's response to the court's inquiry, supplementing information provided by prosecutors in their initial April 2012 court complaint.

The  Duryodhana is alleged by prosecutors
to have passed through Bangkok (above).

The government's latest memorandum contends that the Duryodhana statue "was stolen from Prasat Chen in 1972, with the head removed first and the torso afterwards, and acquired by a well­ known collector of Khmer antiquities (the "Collector"), via an organized looting network. (Am. Compl. ¶  17-18). The Amended Complaint further alleges that the 1975 sale of the Defendant in rem was conducted for the Collector by an auction house which had full knowledge of its illicit origin. (Id. 19-20)."  The amended complaint specifically claims that the Duryodhana and a companion piece, termed "the Museum Statue," were transited through Thailand. "The heads of the statues were removed and transported first, followed by the torsos, and ultimately delivered to a Thai dealer based in Bangkok (the 'Thai Dealer'). The Defendant in rem and the Museum Statue were then obtained by a well-known collector of Khmer antiquities ('the Collector'). At the time of this purchase, the Collector knew that the statues had been looted from Koh Ker," write the government's lawyers.

[Author's sidebar: A companion statue to the Duryodhana, a Bhima sculpture, has been identified at the Norton Simon Museum in Pasadena, California.  Meanwhile, two other related statues are reportedly located at the Metropolitan Museum of Art in New York.  See e.g., PRI's The World.]

The government's memorandum further avers that the "Amended Complaint ... alleges additional facts regarding Sotheby's knowledge that the Defendant in rem was stolen. Among other things, the Amended Complaint alleges that (1) Sotheby's and Ruspoli were aware that the Collector had been the seller of the Defendant in rem in 1975; (2) that Sotheby's consulted with the Collector prior to the importation of the Defendant in rem and throughout the 2010-2011 sale process; (3) that Sotheby's never included information about the Collector's pre-1975 acquisition of the Defendant in rem, or his role as the seller in 1975, in the provenance information it disclosed to the public, potential buyers, the Kingdom of Cambodia, or United States law enforcement; and (4) Sotheby's provided inaccurate provenance information to potential buyers, the Kingdom of Cambodia, United States law enforcement, and others, specifically that the Defendant in rem had been seen in the United Kingdom in the late 1960s, at least three years prior to its actual removal from Prasat Chen. (Am. Compl. ¶ ¶ 21, 29-30, 37, 43-44.)"

The proposed amended complaint specifically claims that "in or around 1974, representatives of [a United Kingdom] Auction House conspired with the Collector and the Thai Dealer to fraudulently obtain export licenses for the Defendant in rem and other antiquities to be shipped to the Auction House in the future."  The proposed complaint asserts that "prospective buyers were unwilling to purchase the Defendant in rem due to its lack of legitimate provenance and missing feet. The Auction House, however, ultimately succeeded in selling the Defendant in rem in 1975, with the torso and head now reattached, to a Belgian businessman, on behalf of a Belgian corporation he controlled. After a transfer to a second corporation, and the death of the businessman, the Defendant in rem was ultimately transferred to his widow, Decia Ruspoli di Poggio Suasa (“Ruspoli”), in 2000."

The amended complaint continues with allegations that an officer in Sotheby's Indian and Southeast Asian Art section "retained a[] professional art scientist (the 'Scientist') to prepare a report on the authenticity of the head of the Defendant in rem and the condition of the work done prior to the 1975 sale to rejoin it to the torso. The Officer informed the Scientist that the head had been separated from the torso 'in antiquity,' rather than in 1972."  The proposed complaint cites an internal Sotheby's email that purports to describe the scientist's observation regarding "the perfect condition of the head compared to the distress suffered by the body." The email allegedly offers the scientist's explanation "that the sculpture was either forcibly broken for ease of transport from the find site and then put back together later OR that the head and torso do not belong together." The government writes that Sotheby's later"terminated the Scientist's engagement."

The government also alleges that Sotheby's agreed to contact the Cambodian government about the sale of the sculpture but advised that "this communication should not come from the senior Sotheby's officer" so as not to attract attention.

The claimant's will have an opportunity to respond to the pleadings filed by the U.S. Attorney's Office.

_________________
UPDATE 11/15/2012

The New York Times reports that Sotheby's denies the claims made by federal attorneys.

The news outlet also writes, "Prosecutors say that in 2010, when the statue was being imported into the United States, the owner submitted an inaccurate affidavit to American customs officials, at Sotheby’s request, stating the statue was 'not cultural property' belonging to a religious site."  This statement has prompted some confusion in the blogosphere, which is important to address here.

By way of background, federal prosecutors allege in both their original complaint and their proposed amended complaint the following:

"In or about late April 2010, Sotheby’s imported the Defendant in rem into the United States in order to offer it for sale at auction. In the commercial invoice prepared in connection with the importation, the Defendant in rem is identified as a 10th Century 'Khmer stone guardian' from Cambodia. The Defendant in rem arrived at JFK Airport on or about April 23, 2010.

"On or about April 26, 2010, at the request of Sotheby's, Ruspoli executed an affidavit that was submitted to United States Customs and Border Protection stating, among other things, '[t]o the best of my knowledge, the [Defendant in rem] is not cultural property documented as appertaining to the inventory of a museum or religious or secular monument or similar institution in Cambodia.'"

This information is not new to the proposed amended complaint.  But some readers may have thought otherwise, given that the latest news in the forfeiture case is the government's petition to file a newly amended complaint.  The New York Times story did not report that prosecutors petitioned to file a new complaint.

Meanwhile, The New York Times' description of the Ruspoli affidavit differs from what is reported by federal prosecutors in their proposed complaint quoted above. The newspaper's truncated description may have opened speculation that federal prosecutors might be attempting to build their forfeiture case on the basis of false statements made to U.S. Customs and Border Protection.  But government lawyers thus far have not presented this argument either in their initial complaint nor in the proposed amended complaint.

Of the several legal grounds on which prosecutors seek forfeiture of the Cambodian sculpture, none is based on the contention that anyone entered false information on customs paperwork in violation of 18 U.S.C. § 542.  That federal statute prohibits the import of goods by means of false statements, and that statute can serve as the basis for a forfeiture of illegally imported goods as it did in the famous case of United States v. An Antique Platter of Gold.  While the government intends to support its forfeiture case by referencing the Ruspoli affidavit, it has not argued clearly how the affidavit should be weighed by the court.  Prosecutors have been careful to not explicitly characterize the Ruspoli affidavit as either false or true. The government, nevertheless, strongly implies that the affidavit in some way supports its legal theory of forfeiture of the Duryodhana statue, but not under 18 U.S.C. § 542.

A final observation. Federal prosecutors are likely aware that the language contained in the Ruspoli affidavit parrots the Cultural Property Implementation Act (CPIA) at 19 USC § 2607, which states, "No article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution in any State Party [to the 1970 UNESCO Convention on cultural property] which is stolen from such institution after the effective date of this chapter, or after the date of entry into force of the Convention for the State Party, may be imported into the United States."  It is important to observe that the government does not argue forfeiture of the Cambodian statue based on a CPIA violation.


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Ithaca Lawyer The Dangers of Talking with ADAs, DAs, law enforcement, and Judges

Found by Cornell
Speaking of dangerous, this is what was missing from my youth.

Many things are known to be dangerous. Skydiving, scuba diving, mountain climbing, bungee jumping..maybe that's why I tend to avoid activities that are high risk. BTW TV, going to the movies, and reading are real activities just not real active physically.

But come on , Is talking to people really dangerous? In my best lawyer voice I state, "Well it depends"

first, who are you talking to? where are you talking to them? and lastly what are you talking about?
Sometimes talking to the wrong person at the wrong time and wrong place can be worse than free falling.

Real Life Can Bite You in the Tuchas 

Imagine this scenario: you are arrested, charged, booked, and printed for something you did not do or did not do FULLY (it is a defense perspective). Now you are brought into Court in front of a Judge, he asks you how you plea, guilty or NOT guilty and you say ,,,  "guilty" OMG now what?

Well this situation I just described happened this past summer to two college girls from out of state. It was a little backwoods Courthouse with a big judge, and they were scared. With No lawyer at their side, and No understanding of the process they were cooked before they got there.  Anyway, I later entered the scene and took back their guilty pleas to their crimes (criminal misdemeanors). Remember that Guilty Pleas must always be VIK (Voluntary, Intelligent, and Knowing). Why anyone would want to plea to the ALL the charges in this type of situation is a story for another day.

The Big Who

So how dangerous is talking? Well WHO are you talking to? Are they friend or foe? Being friendly is not the same as being your friend. Remember, it's always us against them, you and your attorney are the us, and the them is (are) everyone else.

When the people you are talking to have power, authority and a job to prosecute you, sentence you, and testify against you then your talking to and with them is rather dangerous. It's the old fable of the scorpion and the frog (go read it), bottom line, scorpions have to sting, it's their nature. Very easy, just remember the noun becomes the VERB!

Law Enforcement: Enforce (the Law)
Judges: Judge
Prosecutors: Prosecute

Ever hear of the 5th amendment, Your Right to Remain Silent? Silence is golden in this situation because ANYTHING you say can and will be used against you. That is why it is not the best idea to talk directly to law enforcement, the judge, and/or a prosecutor. Generally speaking by making further admissions (statements) you are NOT helping your case. In fact in the majority of cases, further talking is going to bury you more.

Statements made to these people are noted. They will later turn around, and hit you over the head with your own honesty like a mother wielding guilt for something you did 10 years ago.

Your honesty at this stage and place (without counsel) is misplaced at best, and highly dangerous at worst.  

Lawyer as Filter

Your lawyer is your advocate but they also act as a filter. They take it all in (facts, information) and then clean it up, re-package it, and maybe explain things in a specific context. They can be neutral, objective, and unattached. The power of this lies in art and science. How you say things, describe things, and tell a story can be the difference between tasting lemons or lemonade. Your lawyer can help you carefully navigate the legal minefield of your situation.

The Guilty with an Explanation

I am in Court quite a lot and how many times am I going to hear, I am guilty your Honor BUT with a explanation. When you start explaining anything you are done, as in fully cooked. Explaining yourself out of trouble is an ineffective strategy. WHY?

You have been charged, you are alleged to have done SUMTING! Either you did something you or did not do something. Usually justification (I did it because I had to) defenses are rare. Most situations that you consider emergencies are not in the eyes of the law. Bringing up your personal issues, like a death in the family, recent divorce, loss of a job, or medical diagnosis is not going to get you sympathy or empathy. Everyone has problems but they (the authorities/the government) will not place themselves in your shoes. They will see themselves as above your acts and actions.

To them your explanation is merely a nice way of excusing yourself, and nothing more. Explanation is given short drift by the majority, and will cut against you more than for your cause.

Sometimes the best thing you can do is Shut Up! Let your lawyer do their job. Allow them to be your spokesperson, your advocate, and your indirect line of communication with the Court, the authorities, and the prosecutors.

http://www.ithacadwi.com

Dr. Lawrence Newman
Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY
607-229-5184

INTERPOL General Assembly Discusses Stolen Art - Attention Focused on Protecting Cultural Heritage in Churches

Prosecutors and police are talking more about cultural heritage crime.  Global antiquities trafficking was discussed at the International Association of Prosecutors annual meeting held in Bangkok last month.  And this week INTERPOL (International Criminal Police Organization) addressed art theft at its 81st general assembly in Vatican City.

INTERPOL President Khoo Boon Hui told the 1000 delegates in attendance that the global police organization "has recognized the need to collaborate with a whole range of partners in the public and private sectors to deal with emerging threats, such as ... trafficking."

Domenico Giani, Vatican City's Inspector General of the Corpo della Gendarmeria (chief of police) specifically addressed the threat of art theft aimed against churches. Giana observed that "[h]umanity's spiritual thirst and desire to praise God 'have given life to works of inestimable value and to a religious patrimony that gives rise to greed and the interest of art traffickers,'" according to the Catholic News Service (CNS).  Giani noted that objects of cultural heritage are particularly vulnerable "in countries where revolts are under way or there are internal struggles fed by a hatred so strong that people try to destroy anything that represents 'the enemy.'"

The trafficking of art and cultural objects is a worldwide priority for INTERPOL.  It maintains an information clearinghouse for police on the topic.  Last month the organization hosted  a workshop in Manila on the prevention of cultural property trafficking.  INTERPOL also assembled a conference in Lyon to confront the growing problem of forged and faked cultural objects.

General Assembly meeting in Vatican City.
Courtesy INTERPOL

Archbishop Dominique Mamberti, Secretary for Relations with States of the Vatican State Secretariat remarked to conference attendees that "criminal activities are now articulated at a global level, with systems of coordination and according to criminal pacts that go beyond the boundaries of States. Hence, globalization has come to shape even this dramatic realm of human life. Sophisticated technical means, huge financial resources, at times dark political complicity, are elements that concur to furnish deleterious support . . . ."

To safeguard cultural and religious objects found in churches and religious institutions of the Roman Catholic faithful, the Pontifical Commission for the Cultural Heritage of the Church in 1999 issued a document titled Necessity and Urgency of Inventory and Cataloguing of the Cultural Heritage of the Church. The statement (found here in English) urges churches to accurately take stock of and to provide stewardship for the cultural and religious articles maintained and utilized by Catholic parishes worldwide. The Commission addressed a similar document to religious orders in 2006 called Inventory of the Institutes of Consecrated Life and the Societies of Apostolic Cultural Patrimony: Some Practical Considerations.

Dioceses, parishes, and religious orders in the United States needing advice about cultural property theft prevention are urged to contact certified members of the International Foundation for Cultural Property Protection. Our professional goal is to safeguard objects maintained by museums, churches, zoos, and other centers of cultural heritage.

[UPDATE 11/13/12]: This link describes examples of church theft and the trafficking of relics from Bolivia.


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Ithaca Lawyer What are New York Graduated Sanctions?

from crimemuseum.com

New York probation departments and the Courts love to throw around fancy terms for pretty basic things. They use plenty of acronyms, like ATI (alternatives to incarceration) or PPI (pre-plea investigation) and everyone is expected to know what they are talking about. See you at the next PTC (pre-trial conference).

Always Ask if You Don't Know or Understand

Number rule when hiring an attorney, talking with an attorney, or dealing with the Court system is:
ask if you don't know, do not assume anything about anything, ask until you are clear about the subject and the answer. I ask about the things I don't know and there is plenty I don't know. I learn new stuff every day. It is smart to ask and dumb to pretend to know.

Fancy Words versus Plain English

Sometimes things sound better when we use colorful language.

Being Incarcerated = Going to jail or prison, being locked up!
Being placed on or in Probation = Being closely monitored and supervised for years!
Getting a CD = Having to meet certain conditions (do stuff) and stay out of trouble (no new arrests)

Striving for the Appropriate

So for today, the purpose of the Court, the Probation department, District Attorney, and the Judges is to gather all the information and facts about a person and a situation and to move towards an APPROPRIATE sentence of punishment.

What is appropriate sentence for the first time DWI offender with no accident and no injuries is NOT appropriate for the second offender or the one with an accident. Leniency for those who deserve it is at the base of this idea of fairness.

This idea or philosophy is called graduated sanctions. A gradual ratcheting up of harsher penalties. They are designed to hopefully teach, assist, train, and to rehabilitate a person from their criminal activity or behavior.

Graduated Sanctions = Gradually Increasing Punishments

Does the system fail some people? yes, but I have also seen people get the help they surely needed, sometimes whether they wanted it or not. Sometimes salvation is painful. It is generally not a fun process to say the least.

The Job of YOUR Attorney

Now the job of your attorney is to bring balance to this process via input. They must actively work to ensure that everyone gets what they need to recommend and to provide an appropriate sentence.

Your Job/employment history, education, family background, drug/alcohol evaluation, treatment, etc. can all help you or hurt you. They must be a filter and a focuser of information.

The Big HOW and WHAT

They can contact probation, they can give information about you, they can guide you to do the right things, and they can advocate to the Court and to the Prosecutor. Everything can potentially count for or against you, HOW it is presented is just as important as WHAT is presented.

Larry Newman, D.C., J.D.

504 North Aurora Street
Ithaca, NY 14850

newman.lawrence@gmail.com

http://www.ithacadwi.com

Defendants Plead Guilty in Stolen and Switched Matisse Painting Case

A pair indicted for their role in receiving a stolen Henri Matisse painting will be sentenced following a guilty plea hearing held on October 30.  A federal grand jury in Miami handed up indictments in July against Pedro Antonio Marcuello Guzman and Maria Martha Elisa Ornelas Lazo for their involvement with the Odalisque in Red Pants, reported stolen from the Caracas Museum of Contemporary Art (Museo de Arte Contemporaneo de Caracas (MACCSII)) in Venezuela in or around December 2002.

Henri Matisse

The two signed off on proffers that describe their role in the possession, transportation, and sale of the painting.  The proffers state that Marcuello Guzman brokered the sale of the $3+ million painting to undercover FBI agents for a discounted price of $740,000.  Ornelas Lazo later flew from Mexico City to Miami International Airport carrying the Matisse painting in a tube.  The proffers go on to describe the following details of the transfer, switch, and sale of the artwork:

" ... Ornelas and co-conspirator Marcuello met the FBI under cover agents ("UCs") at a Miami Beach restaurant. During the meeting . . . Ornelas explained that she had taken multiple precautions to minimize being stopped by U.S. Customs and to minimize being inspected, such as in the manner of her packing, dressing lightly, and bringing no food into the U.S. Ornelas admitted taking the photographs of the painting that were sent to the UC's. Ornelas advised that she was present for prior inspections when experts inspected the painting and found it to be authentic. Ornelas added that one specialist said the painting was worth $3.7 million. During the meeting, Ornelas indicated that the experts were nervous because they seem to be aware of the painting's history. When one of the UCs asked if the experts were nervous because the painting was stolen, Ornelas replied affirmatively. During the meeting, Ornelas stated that she knew everything in regards to the painting.

"The following day, July 17, 2012, co-conspirator Marcuello, Ornelas, and the UCs met at a Miami Beach hotel to conduct the sales transaction for the stolen Henri Matisse painting. ...

"During the July 17, 2012 transaction, Ornelas advised the UCs that she had researched the history of the stolen painting online when it showed up years ago at her residence in Mexico. Ornelas further indicated that she had had the painting inspectedby experts in Mexico City, but that none had been willing to authenticate the painting in writing given its origins [referring to the painting having been stolen.]  Ornelas stated that employees at the museum in Caracas had done a "switch'' [referring to the replacement of the original painting with an imitation].

"At the conclusion of the July 17, 2012 meeting, the UCs agreed to purchase the painting and followed through with an ostensible attempt to conduct a wire transfer payment to a bank account supplied to the UCs by Ornelas. Ornelas and co-conspirator Marcuello were then arrested and the painting seized."


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Prosecutors Discuss Antiquities Trafficking at International Conference

IAP President James Hamilton of Ireland.

Global antiquities trafficking is a crime that often goes undetected, unreported, uninvestigated, and unprosecuted. That was the message conveyed to over 400 prosecutors from approximately 80 countries during last week's convention of the International Association of Prosecutors (IAP) in Bangkok, Thailand. The conference focused on organized crime.

Antiquities trafficking was featured during a panel examining commodities crime and its funding of organized criminal networks. It was a privilege for me to have been invited to address the conference.

Prosecutors in attendance were informed about operating techniques used by artifacts traffickers, and how cultural contraband remains visible in the stream of commerce after being illegally dug up, transported, smuggled, laundered, and sold. 

"Impunity undermines the rule of law," said UN Special Rapporteur Gabiela Knaul as she advocated for accountability of organized crime participants. One method of enforcement suggested by Kier Starmer, head of the United Kingdom's Crown Prosecution Service, is to prosecute offenders and seize criminal assets, followed by post-conviction financial reporting by defendants in order to deter repeat offenses.

One of the IAP's stated objectives is "to improve cooperation between prosecutors to more readily combat international criminality."


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text and photo copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Register Now! - The Untold Story of Cultural Heritage, WWII, and the Pacific

The Untold Story of Cultural Heritage, World War II, and the Pacific

A Conference Marking the 70th Anniversaries of the Battles of of the Coral Sea, Midway, and Guadalcanal

Thursday, November 8, 2012 – Friday, November 9, 2012 THIS WEEK!

Learn More and Register Now

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Ithaca Lawyer's First Movie Review: Flight with Denzel

Attention: SPOILER ALERT

I am not a movie reviewer but I am a defense and personal injury attorney who focuses on DWI cases. So when the new movie Flight with Denzel Washington began their previews I got excited.

Excited for a number of reasons, I love Denzel, as an actor, I think he is amazing, I love producer Robert Zemeckis (of Forrest Gump fame), and I love this movie's storyline, DWI pilot saves/crashes a plane. However, you choose to spin the story, it is compelling, especially with Denzel at the wheel so to speak.

Mixed Reviews

My wife and I went to see the movie in Ithaca after reading mostly good reviews on Rotten Tomatoes, and a bunch of "iffy" ones. I am always leery of the reviews that are too positive or too negative, afterall a movie of this nature (moral content) usually compels people (even reviewers) to take sides or positions. Some reviewers thought the movie was too AA (alcoholics anonymous) preachy. I went in looking for this perspective but didn't see it that way. As anyone knows from reading my stuff I am Not pro-drinking/drugging/driving/operating planes, trains, or automobiles, that would be crazy. I am not crazy that way but I do believe that everyone deserves the full extent of the law, it's protections and it's consequences.

Different Strokes for Different Folks

I also believe that those who need help should get it, whatever works for them, whether this is AA based or something else. I have seen different programs work for different people, just like any program/idea/philosophy/methodology it must be worked, it must be believed, and it must be integrated for a long term change.

That said, I really liked this movie but I had issues with some of the legal/administrative/story proceedings and dialogue relating to the operation of a plane while under the influence, and how Denzel's character forced me to suspend disbelief on a few occasions.

SPOILERS/SPOILERS/SPOILERS

Denzel's blood alcohol concentration post-crash came back as a 0.24 BAC. 

His attorney supposedly "squashed it", as in got it thrown out. We only know the issues he pointed out on camera: the blood preservative was wrong, the lab machine was not calibrated (verified/validated) properly/timely, and the transfer of custody procedures were violated by the hospital personnel. Whether he did this by a Court motion or by a motion and Court hearing is never revealed. Poetic license, maybe?

Multiple Samples?

There would have been at least two samples drawn. One for the hospital for triage and medical treatment of Denzel immediately, and then a forensic sample. Whether either one of those samples could have presented at an administrative or civil hearing is another issue. Proof at these hearing has a lower standard than the criminal one of beyond a reasonable doubt.

What is the True BAC limits for pilots, CDL holders, and train drivers?

The true legal limit for a pilot (commercial airline, bus, train) is .04 BAC (blood alcohol concentration).

        In 1985 and 1986, the Federal Aviation Administration implemented the current version of section 91.17 of the Federal Aviation Regulations, which applies to all aircraft pilots (general and commercial aviation alike) and states in part that

        NO person may act or attempt to act as a crewmember of a civil aircraft— (1) Within 8 hours after the consumption of any alcoholic beverage; (2) While under the influence of alcohol; (3) While using any drug that affects the person's faculties in any way contrary to safety; or (4) While having 0.04 percent by weight [8.7 mmol per liter] or more alcohol in the blood.

The movie indicated that a .08 BAC is the criminal limit. It is BUT not when you are driving/operating/flying as a "common carrier" and this standard is even less if you look at the the Federal law above. NO alcohol within 8 hours of flying a plane or even being a "crewmember" of a plane. Zero Tolerance is the law.

Denzel drives drunk with impunity?

In the movie much time is spent watching Denzel battling his alcohol addiction. He is driving and drinking, drinking and driving, in short violating law and order at every turn. Yet, he visits his ex-wife and son unexpectedly, who then calls the police because he is angry and inflamed, they arrive, his car is parked at a fire hydrant, the press arrive, and he is completely sloshed, and he is NOT arrested for DWI/DUI?

Instead we hear that the police escort him to a safe place. This has to be a movie because in real life people get arrested after driving drunk.

Well even after all of that I still loved the movie for the following reasons:

1. Denzel comes to terms with his lying and his addiction. He accepts responsibility, and the depth of his characterization of this event is astounding. His dynamic eyes and facial expressions reveal true transformation.
2. We see the balance of people's reactions and responses to the event (crash) and even to Denzel. Just like real life many people just don't know where or how to place a life changing and fatal event.
3. Act of G-d. A loaded expression or an expression loaded with emotion, where is G-d's role to play in all of this life stuff? Is there a G-d? Is this an Act of G-d? This is real and I see it daily in my practice, people trying to make sense of tragedy, to find meaning in the harsh consequences of the world's reality.

My wife and I walked away talking, discussing, and challenging one another. To me that is the proof of a good movie, now after we watched Cloud Atlas both of us were completely silent. Maybe we were so stunned by the brilliance? Or maybe something else?

Larry Newman, Ithaca Attorney

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

The Ithaca Doctor/Lawyer: Avoiding the Two Biggest Mistakes in Making a Disability Claim

from 123rf.com

I have represented, treated, and testified for thousands of disabled people over the span of 26 years. First as a Chiropractic Physician in Florida, and then as an attorney in NJ, FL, NY, and PA. I have rated them for impairment and disability, have evaluated and diagnosed them physically, and helped them obtain money to compensate them for their losses. Claims for disability can be made in many different areas, circumstances, and times. It is more common to become disabled than most people may wish to believe or think about.

Understanding TWO main ideas about disability claims will go a long way to ensure that yours is good.

First, Dis-ability means just that, UN-able to WORK at a JOB.

Disability is NOT impairment, disability is NOT your injury, disability is NOT your condition or your disease.
It is always job related or job specific. How specific a job is the first question for all claims?

Under an auto policy it just means the job you are doing prior to your car accident. So if you were employed at Burger King prior to your injury then not being able to flip burgers means you are disabled.

Under Social Security Claims the government has set a line in the sand at 50 years of age to make a job determination. If you are 50 or older (I am) then the last 6 years of your work life are your baseline "job." In other words, if you can't perform that type of work (the one from the past 6 years) you are 100% disabled. If you are less than 50 years of age (at least to the government) then "any" work you can physically and mentally do is the baseline. So being 100% disabled and being under 50 is a big deal to social security.

Under a private disability claim policy from a company you work for or self pay you must read the policy. It may specifically state what is and what is not disabled based upon time and job. Some policies are called "own" occupation, which means the occupation you are trained, experienced, and educated for. Other policies have looser definitions of work and employment. They might state "any" job, so your being trained as an engineer BUT being able to tear tickets at the local movie theater means that you are NOT disabled.

Second, Disability is NOT determined by YOU.

This is by far the biggest MISTAKE I see most people make. You cannot wake up and decide I can't work and then make a claim. Your doctors, and your healthcare providers (Physician Assistants, Nurses, etc.) MUST make that DETERMINATION.

Disability is always a DETERMINATION for a professional to make after an ASSESSMENT. Ongoing disability requires ongoing (continuing) evaluation and assessment. Ongoing claims need to be substantiated (shown, proven, validated) with SUBSTANCE (objective findings, testing, treatment, care).

That is why it is vitally important that you tell them all of your symptoms, problems, and limitations. A record must be made and kept to make any claim for compensation. They put you on or off disability. They continually monitor and evaluate you as time goes by. Making a record and establishing connections between your injuries (diseases, conditions, etc.) and your INABILITY to Function and to WORK is everything. Complete, detailed, and validated documentation of a disability claim will help everyone in the process. Giving claims examiners all the reasons for the disability and then the documentation makes your's stand up to any scrutiny or potential contest (challenge as to authenticity). In other words, is your claim REAL? Real claims have real documentation, causal connections, and continuity.

These two things are true regardless of:

Whether the claim was for personal injury disability against an insurance company for a car or truck accident.
Whether the claim was for a worker's compensation claim.
Whether the claim was for social security disability against the government administration.

Understanding these two truths about claims will help you make your claim for compensation stronger.

Dr. Lawrence Newman

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com

http://www.ithacainjurylawyer.com

Shipwreck Ethics

Edward Rodley, senior Exhibit Director at Boston's Museum of Science (MoS), has written an article titled "The Ethics of Exhibiting Salvaged Shipwrecks," published in October's issue of Curator: The Museum Journal.  The article coincidentally appears as the MoS hosts a special exhibition sponsored by commercial maritime salvor Odyssey Marine Exploration called SHIPWRECK! Pirates & Treasure.

Curator magazine describes Rodley's article as follows:

"The contentious relationship between cultural heritage professionals and commercial entities is nowhere more fraught than in underwater archeological sites. More and more often, museums are drawn into this conflict through hosting traveling exhibitions. This article explores the ethical issues in two shipwreck exhibitions, Shipwrecked: Tang Treasures and Monsoon Winds, and Real Pirates: The Untold Story of the Whydah from Slave Ship to Pirate Ship, and the specific responses museums have made to address the ethical issues around commercial exploitation of cultural heritage. The article calls for museums to be more thoughtful and deliberate consumers, and embrace their potential as safe venues for exploring ethical dilemmas these sites embody."

Ed Rodley is a museum professional with a background in archaeology.  I spoke with Rodley about why he wrote the article.  He replied in an email excerpted below.

"Museum exhibitions are one of the main venues where the general public encounters archaeology, yet ethical issues get little to no acknowledgement or discussion in most exhibitions. In my experience, responses by the broader museum community to ethical issues tend to break down into either A) avoiding anything controversial, or B) pretending that there is no controversy by ignoring it. Both of these strategies deny the public the opportunity to explore these issues.

"I wanted to highlight the inadequacy of those responses and hopefully stimulate some discussion of other responses to controversy.

"I wrote the article to focus on museum responses to two underwater cultural heritage controversies; the Belitung wreck from Indonesia and the Whydah Galley. They are perfect examples of the dilemmas that face anyone working in cultural heritage. The different responses to these exhibitions are instructive for any museum thinking about hosting these kinds of exhibitions.

"Museums have the potential to be that ideal third space where people can engage with challenging ideas, and feel safe doing it. If the article encourages more conversation about ways museums can actually participate in the debate, then I'd consider it well worth the effort."

The article is worth a read.  Those wishing to learn even more about underwater heritage issues may find last year's Lawyers' Committee for Cultural Heritage Preservation conference of interest.  The program may be viewed online here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com