2012 Annual George and Margaret Barrock Lecture on Criminal Law: The Accidental Crime Commission: Its Legacies and Lessons

On October 4, 2012 Professor Franklin E. Zimring delivered the Annual George and Margaret Barrock Lecture on Criminal Law to a large audience of interested public, law students, faculty, and members of the legal profession. Professor Zimring is the William G. Simon Professor of Law and Wolfen Distinguished Scholar at the University of California, Berkeley School of Law.

His subject was the origins and legacies of the so-called Wickersham Commission of 1929-1931. Since the Commission’s work is largely forgotten today, Professor Zimring assumed the burden of explaining how “this hopeless venture ended up being viewed as a precedent setting and positive contribution to the ways in which the national government learns about crime and criminal justice.” In this he succeeded, his remarks serving as a timely, thoughtful introduction to the Law School’s day-long conference on the Wickersham Commission that was held on October 5, 2012. (More on the conference in my next blog.)

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Money, Art and Crime

Crime often pays, and sometimes pays very well. Both the drug dealer with a pile of cash in the basement and the insider trader with a huge portfolio in an off-shore account face a common problem: How to use the cash without being targeted by law enforcement or tax collectors. The solution is “money laundering,” a banal phrase that accurately conveys how illegitimate wealth is cleaned and pressed to appear lawful – and hence useable.

On September 5, 2012 the Law School hosted a packed lecture, “Money Laundering Perfected by Art,” presented by the Hon. Fausto Martin De Sanctis, a leading federal judge from Brazil, and Karine Moreno-Taxman, an assistant United States Attorney in the Eastern District of Wisconsin. Currently a fellow at the Federal Judicial Center in Washington D.C., Judge De Sanctis has been in the forefront of Brazil’s efforts to crackdown on international and domestic money laundering. Judge De Sanctis described the myriad forms that money laundering can assume, especially through the use of museum-quality art. Paintings and sculptures, for example, leave no money trails. Art dealers jealously guard the confidentiality of their patrons, which only facilitates stealth transactions. Judge De Sanctis talked about the legal battles involving Jean Michel Basquiat’s “Hannibal” (see image), an $8 million painting smuggled from Brazil to the U.S. by persons implicated in the Banco Santos financial scandal (Brazil’s answer to Bernie Madoff). 

Attorney Moreno-Taxman, who translated for Judge De Sanctis, also talked about gaps in domestic (U.S.) and international law which make these crimes hard to detect and complicate the recovery of tainted art, like “Hannibal.” An interesting subtheme was Brazil’s efforts to implement the rule of law since 1988, when it abandoned its military dictatorship and adopted a written constitution.

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Bullcoming Arrives, But Where’s the Path?

The Supreme Court continues to refurnish the modern courtroom with eighteenth-century antiques. Without the slightest glint of irony, or even humor, the Court assessed the admissibility of twenty-first century scientific evidence using legal doctrine crafted on parchment with quill pens in an age when mirrors were placed to direct sunlight into the face of the accused at trial. (Why the mirrors at a time when the accused could not testify in his defense anyway? That’s another story.)    

In its June 23, 2011 decision in Bullcoming v. New Mexico http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf the Supreme Court once again addressed the admissibility against the accused of lab reports prepared by analysts who do not testify at trial. The report was offered through a “surrogate witness.” Bullcoming was charged with drunken driving. A blood test pegged his BAC at 0.21, “an inordinately high level,” as the Court helpfully observed. At trial, however, the State did not call as a witness “Caylor,” the lab analyst who measured the BAC. Caylor, it seems, was enjoying an “unpaid leave for a reason not revealed” – always an intriguing “uh oh” when assessing credibility. Instead, the State called another lab “scientist” who had not observed Caylor’s testing of Bullcoming’s sample but who could talk about lab procedures and the reliability of the report in general. The Court tells us that a “startled defense counsel” objected. (N.B. How the Court knew she was “startled” is unclear, but it is abundantly clear that the confrontation right requires only a timely objection by counsel, startled or unstartled.)

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