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October 2006

Forbes Smiley Sentencing on 9/27

E. Forbes Smiley III will almost certainly be sentenced to a period of incarceration this week. The question is how long will he be imprisoned.

Smiley was one of the world's premiere map dealers until it was uncovered that those rare finds he brought to the market were in fact stolen from unsuspecting libraries around the world. He has now plead guilty to theft charges in both state and federal court in Connecticut. He has confessed to the theft of more than 100 maps worth at least $3 million. Those close to the investigation suspect he has stolen far more than authorities have been able to uncover.

On Wednesday September 27 he will be sentenced in federal court by United States District Court Judge Janet B. Arterton. He faces up to six years. His lawyer has filed a sentencing memorandum requesting no more than three years.

In an unusual move in the federal courts, victim of Smiley's thievery have filed a sentencing memorandum of their own. They are requesting that the judge depart upward from the guidelines given the extraordinary harm Smiley is done.

My hunch is that Arterton will sentence him in the four year range.

Later in the week, Smiley will then appear in state court to be sentenced on state charges. He faces up to five years in that forum. The timing of the sentences here is key. By an unusual quirk of federal law, if Smiley begins to serve his state sentence first, he would then have to start his federal sentence once released from state custody. In other words, if sentenced to five years in state custody, he would serve that sentence, then be remanded to federal custody where he would begin the federal sentence. Lawyers call those consecutive sentences. However, ne can serve both sentences concurrently if sentenced in federal court first.

Bottom line: The likely result is that he will be sentenced to four years in the federal system and will serve 85 percent of that time. While serving that sentence he will also serve his state sentence, becoming parole eligile after he serves half of his five year sentence. He's out and about in 2010. He should begin to serve his sentence sometime after the first of the year.

Some libraries are said to be mulling civil suits but appear hesitant for fear Smiley has nothing. He has offered substantial restitution as part of his plea deal.

It would be foolish not to sue. If Smiley has in fact hidden proceeds away, victims can and should secure judgments against him. He was at one point a world traveler, logging scores of trips to Great Britain alone during one ten-year period. Odds are there is cash out there just waiting him for to come spend it.

A judgment can be collected on for up to 20 years, if you can find assets. I say put Mr. Smiley under a financial microscope for 20 years. When he is released from prison sometime in 2010, follow Smily to whatever cash he has secreted.

Smiley has done enormous damage to the markets on which dealers of books, maps and ephmera depend. He has also hurt research institutions in ways that cannot easily be repaired. We should not forget the harm he has done.

[This post was also published on the blog Bibliophile: Bibliophile ]

Bryant Confirmation Hearing This Afternoon

Connecticut Superior Court Judge Vanessa Bryant is in Washington, D.C., today. In the afternoon, she will appear before the Senate Judiciary Committee. Her long-awaited confirmation hearing for the position of District Court Judge will finally take place.Another blog's take

Both the American Bar Association and the Connecticut Bar Association oppose her nomination. The largely anonymous ranking process for both groups rate her unqualified. There is chatter about her demeanor and ability as a jurist.

She should be confirmed. I've appeared before her in her capacity as a trial judge. Sure, she can be difficult at times. But who isn't at trial? She has also served as presiding civil judge in several venues in Connecticut. She is a quick study and can master difficult subjects.

That she is not a member of the federal bar clubs is no disability. Unfortunately, she will most likely fit the emerging mold of "jurist as manager." While I dislike a managerial bench, that is no reason to refuse to confirm her. Perhaps lifetime employment will knock a few rough edges off and she will emerge as a comfortable and confident jurist.

Deadly Force Jury Instruction

Today a three-judge panel of the Eighth Circuit Court of Appeals held that in a deadly force case brought under the Fourth Amendment, the jury must affirmative be instructed that: "The use of deadly force is inappropriate unless the police officer had probable cause to believe that the suspect posed a threat of serious harm to the officers or others."  It was thus reversible error to instruct the jury thusly:

In determining whether such force was not reasonably necessary, you must consider such factors as the need for force, the relationship for the need and amount of application of force, the extent of injury inflicted, and whether a reasonable officer on the scene, without the benefit of 20/20 hindsight, would have used force under such circumstances.

Rahn  v. Hawkins, No. 05-3329 (8th Cir. Sept. 22, 2006).  In other words, a standard "totality of the circumstances" instruction is not appropriate in a deadly-force case.  The opinion is persuasive (no surprise, given that Judge Arnold wrote it!) and thus should be helpful to Section 1983 lawyers in other jurisdictions.

Jury Duty

Tomorrow I have to show up.  Although I'd love to serve on a jury, I'm 100% certain I won't make it onto a criminal jury, and about 99% sure I won't make it onto a civil jury.  I'm keeping my fingers crossed...

Trading Fourth Amendment Rights for Welfare?

This opinion seems very intriguing.  I'll blog more once I've read it.  Here's the intro:

Plaintiffs-Appellants in this class action (“Appellants”), San Diego County welfare recipients, appeal from the district court’s grant of summary judgment in favor of defendants, County of San Diego and various county officials (collectively, “San Diego County” or the “County”). Appellants contend that the district court erred in concluding that the County’s welfare eligibility program (“Project 100%”), which requires all welfare applicants to consent to a warrantless home visit as a condition of eligibility, does not violate their rights under the United States Constitution, the California Constitution, or California welfare regulations prohibiting mass and indiscriminate home visits. Our jurisdiction is pursuant to 28 U.S.C. § 1291. We hold that San Diego County’s Project 100% does not violate the United States Constitution, the California Constitution, or California welfare regulations. We therefore affirm the district court.