Wednesday, February 10, 2016

That's All Folks

Even as an anticlimax, this was anticlimactic.  As was widely expected after yesterday’s sudden suspension of proceedings, the De Sole v. Ann Freedman/Knoedler case was settled this morning (February 10).  While expectations of seeing Freedman and her boss, Michael Hammer, on the witness stand were significantly lowered yesterday, there was still some faint hope that the case would keep going.  However, I did not take it as a good sign that when I walked in a tech person was winding up AV cables off the floor, all the computers were off, and the opposing attorneys were chatting and laughing together with the courtroom clerk.  At that point, it was just a matter of waiting for the judge to come in and announce the settlement and thank the jury for their service and dismiss them…which never happened. I did wonder if the judge let the jury off in private to allow them to escape back to their lives without being harassed by the journalists and TV producers in the audience.  But we never even saw him again, unless he came out much later after everyone was gone.  I thought there would be some sort of final ending to the formal proceedings, but we all sort of gave up and got on with the day.

Eventually, the various attorneys made themselves available to the small crush of reporters and all of them reveled very little, except to say how happy their clients were.  Indeed, despite the fact that they had been snarling at each other for years through their counselors, the parties now professed to be in a high state of contentment.  I can assure you that is not the way the audience felt.  It was as if we had been watching Star Wars and it stopped before Luke Skywalker blew up the Death Star. For those of us who had hoped for a reckoning of some sort, this was a let-down. 

The obvious thing to wonder is why it stopped now?  Was it in direct response to the testimony of Knoedler’s accountant who spoke of Michael Hammer’s lavish lifestyle and casual way of ignoring standard corporate practice and simply grabbing money from his holding company’s subsidiaries whenever he liked?  While that testimony was, I hear, pretty obnoxious, the defense had to have been prepared for that; she was and is an employee of Hammer’s after all and they would have met with her numerous times and would know what kind of witness she would be.  Also, it just doesn’t ring true to me that Hammer would fold up his tent in direct response to that.  After all, he appeared in the courthouse wearing a velvet jacket and skinny jeans, sporting a deep tan (the courtroom artist said she was going to use the same color on him as she did on the De Sole’s ‘Rothko’!) so I can’t see that he was at all embarrassed or concerned about being perceived as unduly rich.

More likely, Hammer and his counsel got serious about settling after Freedman cut and ran.  For one thing, while the jury was told by the judge to disregard that fact, that it shouldn’t color their judgement, it would be easy to conclude that the jury might take that as an admission of guilt.  And if Freedman was to be perceived as having done the wrong thing, then it would be very hard for Hammer to have skated. 

Eileen Kinsella from Artnet managed to elicit some words from Hammer’s attorney Charles Schmerler that, while rather bland, hint at the effect that Freedman’s settlement might have had on their thinking. She reported that he told her it was “a fair, reasonable and good settlement and added that he was pleased to see the settlement with Ann Freedman, which happened this past weekend and had enabled today’s agreement.”  Marion Maneker at the Art Market Monitor has the opinion that this could mean that they wanted Freedman to share some of the costs of the settlement, which might well make some sense.  
The more I think about it, the more I am convinced that once Freedman settled, this trial was doomed.  Of course, they waited until after some more witnesses suffered on the stand.
Greg Clarick, the attorney for the De Soles, was also pretty robotic in his comments to the assembled but he did gloat a little bit, in that he said that the wrongdoing was obvious and that he and his clients were glad to have gotten the facts of the case out in public.  I suppose that the plaintiff in any case that settles before the jury gets the case usually can claim victory, but the consensus is that he and his partners had put forward a strong case.  Clarick did go on to say how proud he and his firm were of the De Soles in that they toughed it out and went to court. 

On that point I agree with him.   Mr. and Mrs. De Sole have indeed done a great service to the art world, especially the New York art world, by going as far as they did.  This case has made it clear that dealers shirk due diligence at their own peril and that being an ethical secondary market dealer requires the ability to actually look at the goods with a critical eye.  It also should be an opportunity for the conversation about how to produce catalogs raisonne in a way that fairly compensates the scholars, protecting them from legal actions while requiring them to so the work without regard for the market.  That won’t be easy.

I am not suggesting the De Sole’s motives were altruistic; they wanted to get compensation for the huge amount of money they lost when they bought the fake Rothko. It is not up to them to sponsor the creation of case law that will guide the practice of art dealing. Yet by their endurance has yielded some potentially positive results and for that they should be congratulated.

The legal system is not perfect, but the same can be said for the self-policing system the art world has regarding the conduct of art dealers.  In this case, while the plaintiffs got some sort of recompense and while many of the witnesses who had played a role in this mess got some comeuppance, there was collateral damage.  So while the De Soles should be congratulated, I would also like to suggest gratitude towards people like Melissa de Medeiros, Edye Weissler and Frank Del Deo, employees at Knoedler who suffered when the business imploded, and now had to go through the process of being deposed and then examined at trial…when Ann Freedman did not.

I should note here that I had previously written that Jimmy Andrade was completely blameless…he is the former doorman at Knoedler who apparently introduced Glafira Rosales to Knoedler.  I may well have been wrong about him, having read through the various complaints and so forth.  I plan on doing some more follow-up, so will refrain from saying more, but his role may well have been more complicit than I understood. [Note: I finally found the memorandum which dismissed him from the case on summary judgment.  As I originally thought, the guy was innocent, having merely introduced Rosales to Freedman; coincidentally, he was also acquainted with David Herbert.  For this reason, the original complaint included him as part of a conspiracy, and I couldn't find the order dimissing him form the case..but now I have.  He did nothing wrong.] 

While I am on the subject of my being wrong, I would also like to point out that I had previously assumed that the De Soles had been offered their money back but they were angry because the work would be worth way more had it been real, and that Freedman had never called them up when the truth was coming out…they read it in the papers.  While I remain convinced that if Freedman had exhibited a modicum of graciousness towards her clients, some of their rancor would have been lessened, I now understand that the original offer by the defendants to the De Soles was for less than half of what they had paid.  Furthermore, as I now understand, pretty much all the rest of the parties that have settled have done so for far below what they originally paid.  For example, it was revealed yesterday during the examination of Ruth Blankschen that one of the other victims, Pierre LaGrange, accepted $6.4 Million against a $17 Million loss on the ‘Pollock’ he bought.   Thus I was quite naïve.  Obviously, the huge expense of skilled lawyers is a factor in all of these settlements, as is the incredible hassle of suing someone.  The buyers of these fakes who settled before trial avoided both of these considerable burdens, and also were spared the public embarrassment of having been taken by a faker.  Of course, these names have spilled out at trial, but as far as I can tell, nobody is calling attention to them, so that is worth something.  It should also be noted that Glafira Rosales was assessed a huge fine and presumably some of her assets will go to the victims here.  I am also wondering aloud if these buyers can't write the loss off against their taxes or perhaps claim it on an insurance policy.  But I think it is safe to say that despite how happy their lawyers say they are, Ann Freedman and Michael Hammer will notice that there has been a decrease in their net worth.

My current thinking is that it was extremely beneficial and bracing to have the adversarial gaze of the law profession cast upon the art world.  All of us can benefit from the reminder to be more aware of the things we say, the documents we create and the need for solid research.  But by the same token, the underlying reasons that allowed works of art to be sold without solid provenances and airtight attributions have not disappeared, nor have the temptations to buy into an impossible fantasy. I think most informed people in the art world understand this to be an extremely atypical situation, whereby a gallery of this prominence and a person who had distinguished herself to the degree that Freedman had got caught up in something like this. 

I plan on posting a few more pieces on the trial and the aftermath, but I did want to thank everyone who has provided me with positive feedback about this blog during the trial.  It is extremely gratifying.  I can promise you that I will not be able to write 2,000 words a day going forward and that I certainly do not consider myself a journalist.  On this blog, I am able to say and do things that real journalists cannot.

Again, I would like to point out that the New York art press absolutely killed it when it came to covering this case. Eileen Kinsella, Cait Munro and Brian Boucher at Artnet , Michael Miller at Artnews and Laura Gilbert at The Art Newspaper have done a great service in providing a record of what went on, from the voir dire to the…well…whatever it was that today was…the end anyway. 

There are still 4 active cases pending in this entire matter, but it is hard to imagine that these will not now settle as well.  Freedman and Hammer didn't stand up and swear to tell the whole truth this week so there is little reason to see why they ever will.

Tuesday, February 9, 2016

The End? The Knoedler Trial Appears Over

I arrived for the afternoon session of the Knoedler trial today (February 9) full of anticipation, as both Michael Hammer and then Ann Freedman were expected to take the stand.  By the time the proceedings were to have started, the room was as packed as I have seen it (the crowd included an art law class from NYU). There was much excitement as the main event was about to begin, with the two key players in the case, Michael Hammer and Ann Freedman about to face a cross examination from the lawyer of a very angry former client of Knoedler & Co.  

As time passed, it became clear that something was up; Judge Gardephe runs a tight ship, and things begin on time in his courtroom.  We had a glimpse of Michael Hammer as he walked through the courtroom, but I did not see where he went.  Luke Nikas, Ann Freedman’s attorney came in and sat in the audience.  Finally, the courtroom clerk called the defense and plaintiff’s council to the judge’s chambers; a few minutes later they all came back, the jury came in, and the judge simply said that “there had been some unexpected developments in the case” and the proceedings were adjourned.

Judge Gardephe opined that the jury would probably be delighted to go home early, but what about the rest of us? Talk about a buzz-kill!  Just as the case was reaching a crescendo, we all had to leave.  The judge stated that proceedings would start again tomorrow at 9:30, but until then we will all be waiting for the other shoe to drop. According to MM Miller at Artnews, the Knoedler attorney Charles Schmerler said that it was simply a scheduling conflict.  However, his client, Michael Hammer, was in the room, according to Miller.  Luke Nikas told Miller that Freedman was in the building as well. 
All the principles were in place; everyone on the jury was at their post, all the various lawyers were there ready to get going. From the way it stopped, it just seemed the break was because the case was about to settle, or perhaps the judge was asked for additional time to allow settlement negotiations to continue.  Brian Boucher at Artnet made this exact point and correctly called the sudden pause “abrupt.”
Of course, it could have been million other things.  Maybe the judge got given last-minute tickets to “Hamilton” and wanted to go home early to get changed and have an early dinner.  Maybe one of the attorneys had a family emergency.  We just don’t know.  Someone I spoke to in the court who seemed quite familiar with the case did not believe that a settlement was brewing, but the way it all went down today it was the way it felt. 
The morning session, which I missed, was completely taken up by the continuation of Ruth Blankschen’s testimony.  She is the CFO of both Knoedler and 8-31 Holdings, and, according to what I read, 8-31 used Knoedler and its other holdings as piggy-banks, to be raided whenever Michael Hammer needed a new Rolls Royce.  There was also a focus on the very fishy way in which Glafira Rosales was paid for the paintings she was bringing in, almost always a combination of wire transfer, check and an envelope with $9,000 cash…a figure just below the threshold for reporting to the government.  While Knoedler never hid these payments on its own books, it is still an extremely unusual request from a consignor.  In my career at art galleries, there were maybe a handful of times when people came in and paid with cash; this was always a gigantic pain for the bookkeeper who had to count it all out and fuss over it, bring it to the bank and so forth.  Legitimate art galleries that sell paintings for millions of dollars are simply not cash businesses.  Never, ever, that I can remember, did I ever work for a gallery that paid a consignor or bought an artwork directly from an owner or their agent with cash.  Even the combination of a check and wire would have been odd, it is really one or the other.  And the $9,000 figure is also just wrong.  Why would Freedman trust someone who was being so blatantly devious?  I don’t want to go on and on about this testimony, since I didn’t see it myself, but from what I read, this bit is pretty rancid.

The judge scheduled proceedings for tomorrow at 9:30.  I remain hopeful that Hammer and Freedman will have to explain themselves and that a jury will pass judgement on this case.  I realize that this hope comes partially from my own fascination with the drama it all and that the trial is not being held for my entertainment.  The De Soles came to the court seeking justice and if they are offered compensation for their injury that they deem adequate, then that is the whole point of all this.  Nonetheless, as someone who wants an orderly and ethical marketplace for fine art where buyers and sellers can devote most of their attention to the visual pleasure and intellectual stimulation that art can provide, I feel there is still work to be done.  Fingers crossed…I expect this is over, but hope springs eternal.

Monday, February 8, 2016

Ann Freedman Punts but the Trial Continues

The news broke this morning that Ann Freedman and Mr. & Mrs. De Sole had reached a settlement of the lawsuit between them.  Freedman’s attorney Luke Nikas told the New York Times that “Ann is pleased to be able to reach this settlement…From the very beginning of these cases, Ann never wanted to keep a penny of the profits she made…[from the sales of the fakes].”    Remind me to hire Nikas if I never need to explain a horrible mistake in public, that is certainly one of the nicer things one could say about the settlement.

(Although the Times got the scoop over the weekend about the settlement, I would like to point out the ongoing heroic efforts of our art press in this trial.  Artnet has had a recap of today's events up since 7 PM).

Naturally, the details of the settlement are strictly confidential, and the judge (I was told) made it clear to the jury this morning that they should draw no conclusions about the settlement one way or another as the case is still proceeding against 8-31, the holding company that owns Knoedler.  I missed the morning session, but was able to attend the afternoon proceedings.

While the jury was told not to draw any conclusions, that certainly did not stop the rest of us from doing just that.  Freedman has claimed for years now that she too was a victim and that she was delighted that this case is going to trial so as to clear her name.  Settling at this juncture does the exact opposite.   From my perspective, then, the only logical way of interpreting the settlement is that Ann Freedman caved in because the trial was not going well for her.  It seems to me very unlikely that the De Soles (who do not seem to be under any financial pressure whatsoever) would have felt that way about the trail, since a number of the witnesses, such as Jack Flam and James Martin, performed well for them last week.  Seeing as Freedman had to know that all this would come out, I do wonder what took her so long to settle.  I assume that she and her attorneys had access to the gist of the testimony that was going to be presented in advance of the trial, but maybe they thought they could spin it.  Or maybe Freedman was being unrealistic and it took the experience of the trial to change her mind.  At any rate, this is all speculation.  The fact is, she is no longer a direct party to these proceedings, except that she will testify soon. 

I have to admit, when I read about the settlement this morning, I was very concerned that the whole thing would settle and we wouldn’t get to hear from her, but that does not seem to be the case.  We might get her as early as tomorrow.  It is odd that Luke Nikas is no longer sitting at the defense table.  He was always sort of the Good Cop to Charles Schmerler’s gruffness.  Schmerler also did all of the objecting, allowing Nikas to benefit without having to look so mean.  It is just weird that is so much empty space on the defense’s side now.   I must say, I have wondered all along how the two separate plaintiff’s defense strategies might have differed, especially in light of the fact that Knoedler and Freedman parted ways very abruptly and not on good terms.  Now that she has a firm grip on just how much she will have to pay out of her own pocket, her testimony may be different from what it would have been had she still been part of the suit.  At any rate, the good news, at least from my rather selfish point of view, is that the show goes on.

While I missed the morning session, I was told it consisted of the rest of the videotaped testimony of EA Carmean.  Carmean, it will remembered, seemingly discarded all  criticality or discernment as a scholar when he started taking Knoedler’s money, becoming instead a fierce advocate for the authenticity and beauty of the Rosales fakes.  I don’t want to say too much about testimony I didn’t hear, but I was told he simultaneously claimed that he did a lot of work for Knoedler and thus deserved his income, but very little of his time was spent researching the Rosales collection. 


Laili Nasr, who has been at the National Gallery in Washington DC since 1995 working on Mark Rothko catalogs raisonne, gave testimony this afternoon (February 8, 2016).  She began helping with the catalog raisonne of work on canvas, and she is now leading the effort to complete the catalog raisonne of Rothko works on paper.  As usual with the unpaid witnesses in this matter, Nasr looked miserable and the facts of her involvement in this case have damaged her professional credibility, although not to the extent of some of the others that have come before her.

Her testimony centered on two letters that Nasr wrote, on National gallery stationary, to Ann Freedman in October 2002 and November, 2003 after Nasr saw the two Rothko fakes that came from Rosales (one of which was sold to the De Soles and the other to the Hilti Foundation).  The letters refer to the dates and the dimensions of each and both letters specifically say that the paintings “will be included” in the supplement to the Rothko catalog raisonne of works on canvas, should one be published, with a “comprehensive catalog entry.”

While the letters do indicate that no such supplement was immediately forthcoming (it has never actually been published and plans for it have been dropped), there is nothing else in them that qualifies the statement about such an inclusion in any way.  Nasr just straight-up told Freedman, in clear, unambiguous language that they were in…no ifs, ands or buts.  Today, Nasr tried to characterize these as “thank you notes”, sort of a gracious way of acknowledging Freedman’s kindness to her in receiving her at Knoedler and showing her the works in question when Nasr happened to be in New York.  She also indicated that it was an “unusual” letter for her to write, in that the language used was atypical for her and that she generally never wrote directly to dealers about specific paintings in letters such as this.

Nasr never researched any of the facts that Freidman alleged…didn’t look into Alfonso Ossorio or David Herbert, for example, but rather just did a very cursory initial examination, added them to her database of possible works and left it at that.  She or her staff did seem to ask to have some additional documentation, which Freedman promised to provide---Freedman said she was in the process of getting all that.  Nasr also asked for access to Knoedler’s own archives to help her do further inquiries, but this was never granted.  However, rather than pursue any of this further, the whole thing was dropped.  Her focus, Nasr said, was and is to get the catalog of the works on paper finished, she wasn’t even working on works on canvas at this point. 

Despite the lack of ongoing research into the works, Nasr claimed that Freedman called her often during the time period these letters were written to pester her about their inclusion the then-planned supplement to the Rothko works on canvas catalog raisonne.  Nasr claims to have tried to put Freedman off, telling her “it was too soon” to make such a determination and that she was only “considering” it.  Nasr also noted that with respect to the works on paper catalog raisonne that she is working on, she is deliberately waiting until the last minute to make authentication decisions, so as to have as much information as possible available to inform her assessments, she would never make a determination without a lot of research.

So why on earth did she write these letters?  If she wasn’t even working on a catalogue of Rothko’s paintings, what possessed her to put such text down on official letterhead?  Nasr never exactly said, outside of trying to spin them as “thank you notes” and to say that she never imagined that these letters “would have a life of their own” and that Freedman would ever tell anybody else about them.  She repeated that it was unusual for her to communicate with a gallery in this manner and that the actual words were ones she didn’t typically use.  She stared at them as if she had never seen them before.

The defense shredded her “thank you note” excuse.  These letters were written months after her visits to Knoedler and really don’t seem at all like the polite, bland notes that Nasr wanted them to read as.  They are way too specific.  The exact words about the supplement and so forth also appear verbatim in an email that Nasr wrote to Christopher Rothko’s administrative assistant.  The Rothko family had been contacted about an image use permission for one of the fakes and wanted to know what Nasr knew. The painting was in, she said, and again used the “comprehensive catalog entry” line.

Here Nasr again said that the language was so strange…she knew the people in the Rothko office and spoke to them all the time, she wondered aloud from the stand why she would use such formal words, it didn’t make sense to her.  But she did not dispute writing the email and the defense could now make the point that while the language might seem unfamiliar to her, Nasr had used it on at least three occasions.

On cross examination, the defense also showed a 2002 fax that Nasr had sent to Freedman praising the Hilti ‘Rothko’ and comparing it  to the artist’s Seagram Building series in the colors used.  While Nasr here backpedaled and stated that such a comparison could have been made “looking at two postcards” it was another instance the defense will be able to point to that Freedman was given the impression that Nasr thought the work was authentic.

There was also a close look at the matter of Nasr’s name appearing on the list of people who had “viewed” the painting.  This is a very closely related document to the one sent to the De Soles when they bought their fake, but in this case it was actually distributed at the ADAA fair in 2002, where the fake Rothko sold to the Hilti Foundation was exhibited.  Nasr’s name is one of the people on that list and quoted Nasr as saying that the painting  would be in the supplement.

Nasr had picked up this list while at the fair and noticed her name on it.  She recalled thinking it was odd for a gallery to hand out such a list an art fair and did not like seeing her name used in this manner.  She said she had never authorized Freedman to use her name in this way.  However, Nasr did nothing about it. Nasr did not complain to Freedman at the booth, and she didn’t do anything about it.  Why?  Because, Nasr said, Freedman was a very powerful woman and her gallery was in a position to be very helpful in terms of access to other Rothko works and she didn’t want to alienate her.

I have written before that there is a very uneasy relationship between galleries and catalog raisonne projects.  Dealers and scholars must interact in these matters—without such collaboration, the book will be incomplete—but the opportunity for corruption is thus introduced. 

The answer to the Nasr letters is undoubtedly lurking somewhere in this part of the equation.  I simply don’t buy the idea that Nasr was so naïve as to think that the letters would not be used by Knoedler to sell the works.   Was she trying to gain favor with Freedman for some reason?  Was there someone else at the National Gallery who caused this letter to be drafted and sent, which is why Nasr found the language so strange? Is she taking the blame for someone else’s mistake somehow?  Or was Nasr intimidated by Freedman, who obviously could be quite demanding, and simply wrote the letters to make Freedman go away? 

The plaintiffs’ redirect questions focused on the fact that Freedman never told Nasr that she had already gotten 19 paintings from the same source as the ‘Rothkos’, or that IFAR had been unable to authenticate a ‘Pollock’ or that John Elderfeld had cast aspersions on some of the ‘Diebenkorns’.  Had she known any of this, Nasr wouldn’t have written the letters.   Like many others in the art world, Nasr said she “trusted” Ann Freedman and thus gave the works the “benefit of the doubt.”  Maybe this is the answer, then…the considerable reputation of the gallery had everybody falling all over themselves to be part of an exciting art world discovery.

In short, I think this was one that went the defense’s way.  Unlike the positive reinforcement of some of the Rosales works from hired help like Stephen Polcari and EA Carmean, Laili Nasr received no compensation from Knoedler and no other factors would otherwise suggest that there was a quid pro quo.  Indeed, she is a person who has spent 15 years working on books that authenticate Mark Rothko’s art and she wrote two letters and a fax that plainly state that these things were OK.  Additionally, she saw Knoedler publically using her name and the quote about it being included and never challenged them.  Here is at least one instance where Ann Freedman can point to and argue with success that one of the foremost experts gave her an assurance upon which she relied. 

Nasr’s letters left a lot of people shaking their head in the courtroom during the break, myself included.  The letters were indeed unusual.  Nasr commands a great deal of respect and is known to be very careful, so this is probably the exception that proves the rule.  It just happened to be a very public one.

Ruth Blankschen

After the break for the last part of the day, Ruth Blankshen, a CPA who, since 2007, has been the Chief Financial Officer for Knoedler, LLC.  She is CFO of Hammer Galleries, as well, and has the same job for 8-31 Holdings, which owns the two entities.  I must say I was surprised.  I thought Knoedler went out of business, but it appears to still be a going concern.

She is a hostile witness for the plaintiffs, obviously, since her boss is on the hook for $24 Million if they lose this case.  She tried to run out the clock a bit by being difficult, making the attorney questioning her spend 10 minutes establishing that Knoedler pays her salary but she does a lot of work for 8-31 as well.

The general thrust of the questions seemed to be to establish that 8-31 and Knoedler were not operated at an arms-length, despite the various corporate documents that require them to be.  Money seemed to flow between them without invoices and 8-31 did not perform the services it was supposed to.  This makes sense; the plaintiffs want the jury to start thinking of them as one entity.  If 8-31 tries to play it like Ann Freedman was concealing wrong-doing from them, the fact that they shared office space, phones and email, and pushed money around freely will undermine that. 

Blankschen will be on tomorrow as well and is sure to try and drag it out some more.  This is probably damaging stuff, but it can be made to seem both boring and technical and I think she will try to do just that.

Saturday, February 6, 2016

Ann Freedman made a lot of money

Day 10 (Friday, February 5, 2016) of the Freedman/Knoedler/De Sole trial turned to the financial aspects of the sales of the fakes, with an accountant, Roger Siefert, who was hired by the plaintiffs, presenting his analysis of the gallery’s books.  Before that, James Martin finished his testimony about his forensic examination of the paintings, which I did not see—I heard he was just as engaging and effective as he was the day before.  I missed the first half hour Siefert’s testimony as well, but much of it was reiterated over the afternoon.  At the end of the day, the videotaped deposition of E.A. Carmean, the in-house scholar at Knoedler was shown, but only partially; this will continue Monday. 

Robert Siefert is a forensic accountant.  I was not there for the beginning of the testimony where they talk about the witness’ credentials, but he seemed very lucid on the stand.  Like James Martin, he was able to use normal language to explain some esoteric things, he was extremely prepared, and clearly is a seasoned expert witness.  The De Soles are playing to win, so my guess is that he is near the top of his profession.  Probably like most people who chose art as a career, math is not my strong suit and when they started talking numbers, I sometimes found it hard to follow.

What I did not find hard to follow was Ann Freedman’s eye-popping compensation.  I have always wondered how much these big-shots get paid, but it appears to be more than I ever imagined.  Freedman’s base salary was bumped up to $300,000 per year in 1998.  That didn’t surprise me—she was running one of the top galleries in New York, operating at a very high level.  That is (I am sad to say) a lot of money in the gallery world, even today, but she was at the top of the pyramid.  What did shock me was her “profit sharing”, which seemed just a fancy term for “commissions.”  In that same year, 1998, her commission on sales went up from 10% to 15% of the profit!  In 2002 it went up again and apparently was as high as 30% before the end.  That is just off the charts.  Usually, the salespeople get a salary plus 5% commission, from what I have heard.   In some situations, if a salesperson brings in a work from a seller and then sells it on, they might get 10% (5% for bringing it in, and 5% for selling it).  Galleries vary and it is hard to get solid information, and I am not speaking from personal experience, only from hearsay.  But I am willing to go out on a limb and say that I would be very surprised if any employee at a New York gallery that is not the owner gets a big salary AND 30% commission on sales. 

Turning to the Rosales fakes, Mr. Siefert said he calculated that Ann Freedman received $10.3 Million on top of her salary as profit sharing from the sales of these fakes from 1994 – 2008.  It also came out in the cross examination that she was equaling her profit sharing from sales of non-Rosales works in a number of years.  The chart on the screen was hard to read from afar and they were speaking quickly, but in two of the years they mentioned, 2003 and 2006, Freedman made $2.2 and $2.5 Million respectively from profit sharing in addition to what she got from selling the fakes,  meaning that in 2006, she knocked down over $5 Million, plus her salary. 

I mean, wow.  Again, she did not own the gallery, she just worked there, and she made $5 Million.  2006 was a very good year in the art business.  If I recall, even I made a decent living that year as a dealer.  But Freedman was living large.  Now I know how she can afford such an able legal team.

They also flashed up how much EA Carmean was making.  From 2004 - 2009, he made, total, about $330,000…again, don’t quote me, but that’s what I think I saw on the screen.  The highest was in 2008, when he made $78,000 and in 2009, he made $60,000.   The lowest was $36,000 in 2006.  I believe he was a free-lance employee at Knoedler throughout this period, from what has been said so far, doing research with a specific focus on the connection between David Herbert and "Mr. X."  This is actually a lot of money for such a job, especially since we heard that other Knoedler employees were conducting such research as well.  Maybe he was coming in every day (doubtful) and perhaps this is reimbursement for expenses and so forth, but (again, I am sad to say) free-lance research just doesn’t pay that much.  My strong suspicion is that he was being paid for his distinguished name and credentials.  This pay also might explain why he was such a dogged advocate for the works in the face of mounting evidence against them and why he might have suggested to James Martin, the conservator from Orion, to change his report.

I have said elsewhere that it really stinks that we cannot come up with a way to pay experts and scholars appropriately.  Here we have a case where an art dealer was making $5 Million one year, while the people she relied were getting paid much less.  It is sad that scholarly work is poorly compensated when it creates such immense value.  But looked at from another angle, there are ethical guidelines for scholars which, it could be said, Carmean crossed.  It certainly seems that his scholarly reputation has been diminished by his actions in the Knoedler case.  The relatively high level of pay Carmean received does little to tip the scales in the other direction.

At any rate, turning back to Siefert’s testimony, the bomb he dropped, which was in the De Sole’s complaint, is that without the Glafira Rosales pictures, Knoedler Gallery would have operated at a loss from the time she brought them her first treasure in 1994 until the gallery closed in 2011.

It needs to be pointed out that the two professions, accounting and art dealing, do not play nicely together.  In my experience, bookkeepers at art galleries and accountants who have such clients experience a very high level of frustration.  For one thing, the personalities are different: accountants deal in facts while art dealers think in hypotheticals and help their clients dream a little bit.  The purchase of a work of art rarely is done out of necessity and the structure of accountancy is sort of set up from the opposite point of view, that economic activity proceeds in some rational way out of transactions between parties that have financial benefits for both sides. 

Art galleries, then, are fairly atypical businesses from an accounting point of view.  Take, for example, the idea of a ‘receivable’.  When a manufacturer or their broker ships items to a factory in response to an order, they expect to get paid and they put a receivable on their books…indicating that they think they will be paid very soon.  Art dealers, by contrast, very often ship works ‘on approval’…no deal has been done yet.  Obviously, it’s not yet an occasion to put a receivable on one’s books.  But this can drag on for a while…the work could be ‘on approval’ for quite some time.  Even worse, the salesperson might create an invoice, in anticipation of consummating the sale when they go visit their client.  So now, the bookkeeper has a receipt for the work having left the gallery, as well as an invoice on their desk.  But it still is not a receivable! So they have to put such annoyances aside until all of a sudden they are told it actually is a sale, but, as often happens, the owner has decided on a different piece.

Along the way in this imagined transaction, a million other things can happen which, while not affecting its status on the books, can drive a bookkeeper crazy.  The sale is agreed, but the invoice is changed four times as the client changes their mind about which entity or family member will actually be buying the piece.  Or perhaps they decide they want the work in Aspen, so it comes back to the gallery and is shipped out of state, meaning sales tax is not collected, which means the bookkeeper has to re-do the sales tax return they had just drafted.  Or it is invoiced in December and paid for in February--in which year should the income be booked?. Or perhaps it is an editioned work and the wrong edition number is on the invoice and nobody tells the bookkeeper that until the previous year’s books have been audited and now it needs to be changed.
Then, let’s imagine that the work in question needed conservation.  Let’s say it went to the conservator with another work and the conservator created a bill without itemizing how much of the bill was for which piece.  Or maybe the dealer charged the client for shipping and then calculated a discount with the shipping charge added in.  The actual shipping expense needs to be backed out to figure the actual profit and it needs to be decided what to pay the consignor.
All of these things, of course, can be handled by a good bookkeeper by the use of copious journal entries and long hours at the computer, with a calculator and pencil and a pad of ledger paper handy.  But it also requires them to ask questions of the salesperson, who often is very busy and doesn’t really care.  I hasten to add that the salespeople and gallery owners do care deeply about having proper books and are very skilled at business (indeed, to keep a gallery of contemporary art open for any length of time requires a great deal of business acumen).  What I mean is that, as long as income is recognized and offset properly with expenses, most dealers will call it a day.  Why bother meeting with the bookkeeper to help them divvy up expenses among the various sales?  Should an expense be booked immediately or added to a cost-of-good sold and deducted only when the work is paid for?  Who cares!  There are a million other things that need to be done to insure the business stays afloat to get into that level of detail.
So, in the absence of sustained contact with the sales staff, the bookkeepers and accountants make these calls themselves.  In their first few months or years at the job, they might stand outside the bosses’ office for a while and might even occasionally gain access, but in the end, everybody realizes that little is gained and, as time goes by, if the business grows, the bookkeepers find themselves on another floor of the building or even in a different neighborhood altogether, only to awkwardly meet the sales staff at the holiday party or when the salesperson needs something immediately, like the check for their commissions.
So it is with this in mind that makes me think, to some extent, it was a mistake for the plaintiffs to put it as Knoedler “would have operated at a loss” if not for the Rosales fakes.  Basically, what Siefert did was take the overall numbers, subtract out the Rosales profits and, at the same time, he did his best to subtract out any expenses that related to these works, the idea being that if you remove the profits, it is only fair to remove expenses as well, to get an accurate picture of how the business was doing, aside from the Rosales works.

But under cross-examination, the defense lawyers were able to show that it didn’t always happen, that there had been some expenses that may have directly related to the Rosales materials that were missed.  Of course they were missed! Who has time for that crap when there is an art gallery to run?

Siefert replied that in the big scheme of things, the amounts missed were small compared to the massive numbers that the Rosales works were putting up.  He also said there were all sorts of notes handwritten on the invoices that described various expenses which didn’t make much sense and that of course he was going to miss some expenses, what with how art galleries are such strange businesses.  While his replies were plausible, it simply opened the door to some awkward questions for him and began to undermine the confidence we could all have in his spreadsheets by making it clear that was flying blind at least some of the time.
The defense also asked him if he had done any calculations about what Knoedler would have been able to do if they weren’t working so hard on the Rosales works?  Obviously that would have been impossible.  But it is a good point…if Ann Freedman hadn’t ever met Rosales, she probably would have been using her considerable abilities to persuade other potential consignors to let her sell their works of art.  Indeed, as her lawyer pointed out, in many years Freedman generated profits that equaled those from the tainted works…so it wasn’t as if she was completely useless at her job without these paintings.
Of course, this all assumes that all of Ann Freedman’s other professional activities were completely aboveboard and without unethical behavior that might have attracted other civil lawsuits, but I digress.
There was also the very important fact that Siefert included the years 2009, 2010 and 2011 in his calculations, when Knoedler stopped selling any Rosales works in 2008 and when Freedman left in 2009.  As well all know, those were absolutely awful years in general for most businesses and there were big losses for Knoedler.    If he had stopped the clock in 2008 or even 2009, the gallery was profitable, even without the proceeds of the Rosales works.

The point really isn’t that the gallery wouldn’t have been profitable at all, in my opinion, but rather that the profits on the fakes dwarfed all of Knoedler’s other profits, as well as the fact that and that they made way more than the consignor.  Overall, the proceeds from the Rosales works was over $69 Million, of which Rosales was paid $23 Million, leaving $46 Million for Knoedler, which is way more than they made on the rest of their operations.

The wide disparity between what the made off of Rosales versus the rest of their network is the smoking gun, if there is one.  As a general rule, the person who owns a work of art should make more than the gallery that sells it on their behalf.  In many cases, the gallery was buying the work directly from her and, it is true, that in these situations, a gallery will make a big mark-up, as they are generally taking on more risk.  But in this case, the works, had they been real, could have been readily sold by almost any dealer with half a brain, even taking into account the fact that the seller wished to remain anonymous. 

As I think of it, maybe that’s not true.  For example, if I had called up the De Soles and told them I had a Rothko that was from a guy who was the son of a guy and so on, they probably wouldn’t have bought it from me.  So in a sense, Knoedler was getting paid to erase any doubts, and the assumption was that a gallery like them knew a real from a fake and had done due diligence.  But my sense is, that even then, they were getting overpaid (Martha Parrish who testified last week…I missed that…made this very point).

At any rate, I think that the plaintiffs overreached when they got their guy to say that the gallery wouldn’t have been profitable, because to do so they had to throw in a few years that were irrelevant.  Even worse for them, it allowed the defense to point out that in 2011, the Knoedler building was sold for $18 Million, which, if you add that in, means that they made a big profit over those years.  Siefert said that this was liquidating an asset, and he was focusing on the core business activities, but again, the defense got to show that there were a lot of assumptions that the accountant made.  As it turns out, Knoedler was paying the underlying mortgage on the building.  The defense asked, why did you include those payments as an expense when you then excluded the monies from the sale of the building?  Again, this is a fair point.  Adding in those last few years when Freedman was gone and no Rosales paintings were sold seemed like a mistake.  The numbers speak for themselves: Knoedler made a profit of $36 Million from the Rosales paintings, with Ann Freedman getting an addition $10 Million, which is way more than they made doing anything else.  Why not just leave it at that?

While I think the defense did a pretty good job beating Siefert back, there was an odd sequence out of Luke Nikas, Freedman's lawyer.  In 1997, Freedman wanted to buy one of the Rosales works herself, so she traded Knoedler a Rothko work she owned in lieu of cash.  Knoedler later sold this work for $225,000.  Thus, Nikas asked the accountant, since the work she got in exchange was worthless, couldn’t we say that she actually LOST money for the years 1994 – 1998, since her commissions were very low from Rosales sales.  This makes no sense.  Not only was Nikas now himself guilty of cherry picking a time period (even assuming she ‘lost’ money, she got $10 Million from Rosales works by the end), unless Freedman knew the painting she traded for was worthless, how could anyone know she was on the losing end!

The judge couldn’t resist observing at this juncture that we are all assuming the painting she gave Knoedler was authentic.  Funny.

At any rate, Nikas has gone on and on already about how in the early years, Freedman actually made no commissions from the fakes.  I still don’t see where he is going with this, but I doubt he is without a plan. It may be that this will help Freedman deny there was a racket.  Nikas also repeatedly drew attention to the fact the Freedman was able to make a lot of sales and generate a lot of profits outside of the fakes.  This just drives home the tragedy of all of this for me.  She was a very effective dealer without all of this nonsense. 

There was also much testimony about 8-31 Holdings, the company that owned Knoedler (and still owns Hammer Galleries).  I must confess at these points to be a little bit lost.  One thing I am certain the plaintiffs were trying to make clear is that a lot of money flowed up from Knoedler to 8-31 and that this largely came from the fakes.  Additionally, and I may be unclear here, is that 8-31 engaged in a bit of financial slight-of-hand to perhaps hide the fact that this was a gush of money by classifying it as one thing and then reclassifying it as another down the road. 

Whatever the case, the testimony got very specific and dense, and the audience did not have a clear view of the various documents and spreadsheets, so it is hard for me to say.  Suffice it to say that the owner of 8-31, Michael Hammer, is a very rich man and makes full use of tax and corporate attorneys to structure his financial dealings in a complicated way that must help him protect his wealth.
The last half hour of the day was taken up by the videotape of Carmean testifying.  First the plaintiffs will get to show their edited version of the deposition; afterwards the defense will do so.  It already does not look pretty, especially in light of the changes that Carmean suggested to James Martin’s report as well as Jack Flam’s testimony.  The plaintiffs are focusing on how Carmean may have been the means by which the David Herbert fiction was disseminated into the Beyeler Foundation catalog essay for the Rothko show that included the De Sole's fake.
We are promised Ann Freedman and Michael Hammer on the stand soon thereafter.  Fasten your seatbelts.

Friday, February 5, 2016

Forensic Conservator James Martin speaks about the Knoedler Forgeries

James Martin, the forensic conservator who examined 16 of the Knoedler fakes gave testimony all afternoon (Thursday, February 4) at the De Sole-Freedman trial.  I was unable to attend the morning session, but Cait Munro had already got the day’s events covered at artnet by 7 PM and Laura Gilbert at the Art Newspaper can be seen hereMichael Miller at Artnews is here. 
Having now had a brief taste of what these journalists do on a daily basis, my hat is off to them, as they cover the art world with aplomb in real time which the rest of us read at our leisure.

I seem to have missed the librarian at Knoedler, which is a bummer, because that library was whispered to be one of the finest and may still be intact; I also missed a provenance researcher which is disappointing because I would have liked to see how that work is explained in the courtroom.

Seeing Martin was quite interesting, however.  Martin has a business called Orion Analytical which uses scientific methods to analyze works of art, usually to assist in determining their authenticity.  He was originally hired by Knoedler to look at some of the ‘Motherwell’ works that Jack Flam discussed in his testimony, and was subsequently hired by the De Soles to look at their ‘Rothko’.

It is often said that many trials are ‘battles of the experts’, which can take a toll on the jury who are tasked with parsing through jargon and unfamiliar concepts.  In this trial, the art historians are doing battle but so far, aside from Flam, none are bothering to make their methods clear.  But with Martin, for the first time, there was some very technical information, with different types of microscopes, spectral analysis and acronyms being thrown around.
This is plainly not Martin’s first rodeo.  He speaks clearly, slowly, and looks right at the jury as he speaks.  Martin uses all the lawyerly language (“as I sit here today”) and has done all of his homework.  He recalled exact dates, conversations, scholarly articles and so forth.  Martin also can immediately switch to the vernacular and distill complex ideas into everyday language.  Thus, while he may not have been an expert in Motherwell’s materials and techniques, he is “like a radiologist” in that his analytical tools allow him to create reports that can be useful.
Along those same lines, Martin said that some of the things were so wrong about the fact-pattern of the Knoedler/Rosales work, it was like “Derek Jeter wearing a Red Sox uniform”.  Seeing as he is from Massachusetts in front of a New York jury, this seemed to me an obvious provocation!  Just painting a mental image of The Captain in a Red Sox uniform had to be some sort of ploy. Or perhaps wishful thinking.  At any rate, Martin is smooth…maybe even a bit too smooth, and certainly a bit of a ham.
At any rate, the defense has from the beginning of the trial pointed out on frequent occasions that during the time of most of the sales of the Rosales materials, much of Martin’s methodology and technology was not in wide use.  So while it may well be of interest to everybody that, for example, acrylic paints were present in a number of the works, Freedman can plausibly deny having the means to know that around the time she sold the ‘Rothko’ to the De Soles.  I suppose it helps to have a well-spoken guy describe the difficult work he does, but it’s probably not going to stick.
The more relevant bits were when Martin spoke about things that were visible to the naked eye.  For example, the De Sole’s ‘Rothko’ has stretcher-bar marks (which I couldn’t see from afar—the painting was back in action today), whereas Rothko took great pains to avoid this issue when he painted, going so far as to remove the cross-bar when he worked.  This is something that a dealer selling a painting for $8 Million would be expected to know, or would at least ask other people who do.  Also, if one took an everyday magnifying glass, according to Martin, one could see that the paint at the edges was stretching and not cracking…telltale signs of the presence of acrylic paint.  It is this sort of level-headed intense looking that anyone could have done that might resonate with the jury.
Also pretty crappy for Freedman (who wasn’t in court today) was the report that Martin prepared for the ‘Motherwells’ that were the focus of acrimony between Freedman and Jack Flam/Dedalus.  Martin's report said all sorts of things that an art dealer does not want to hear from a conservator when they are hoping a painting they are trying to sell is authentic.  Things like the materials and methods are “inconsistent with the understanding that the works were made and purchased in the 1950s” and that the two paintings, despite being supposedly painted two years apart were made with the exact same paint...came out of the same tube, if I understood Martin correctly.
E.A. Carmean, the scholar Knoedler hired to help research the works, saw a draft of the report and suggested to Martin that he change it.  This was in the early days of January, 2009, right before the Knoedler crew was to meet with the folks from Dedalus about the ‘Motherwells' and where the report was to be the main topic of the meeting.  It is often a very awkward conversation when dealers and conservators discuss such reports.  The conservator is supposed to be independent and has a professional obligation to be truthful.  But at the same time, the dealer is writing the checks, so they get to make suggestions.
Carmen’s suggestions were to cross out the four paragraphs at the end that contained tall the conclusions and to put in language elsewhere that said “very little research exists” about Motherwell’s techniques, as well as a lot of other very substantial changes.  This, in my opinion, goes way, way past the sorts of tweaks and shadings that a dealer can ethically suggest…like three time-zones past.  Martin refused.
In this instance, it looked for all the world that Freedman (who was undoubtedly calling the shots) was being sneaky.  The plaintiffs are alleging fraud and racketeering and, as I have said before, this is a high bar.  But being sneaky is part of being a racketeer and a fraudster.  While all of this happened in 2009, long after the De Soles had shook hands on their 'Rothko', it is bad for her.
Also bad—perhaps--was another small item that Martin brought up, again something that could be seen by the naked eye...namely that one of the ‘Pollocks’ is actually signed ‘Pollak’.  This is something that has gotten wide play over the years, a huge laugh all around.  It was an obvious shot to take, it’s almost worthy of The Onion.  But the thing is, this painting with the misspelled signature was bought by Freedman herself.  So, while it certainly might make it seem as if she wasn’t looking very hard at the works, it also plays into her story of her being fooled and being a victim.  Of course, one could then argue that she bought that one, and one of the ‘Motherwells’, and maybe yet others in order to inoculate herself  from charges that she was committing fraud and being a racketeer, but at this stage, once would be making a very ‘meta’ argument, one that is pretty hard to prove.  I suppose if the plaintiffs didn’t bring it up, the defense would have, so it was better to get it out there in a way that enabled everybody to laugh at her, but I expect the defense will have their own take here.
As usual, Charles Schmerler, the lawyer for the Knoedler holding company, was doggedly objecting as the testimony went along, forcing questions to be rephrased, foundations to be laid, lines of attack abandoned.  He manage to slow things down and make the science look a bit confusing as well as the order of events, although Martin was up to the task most of the time. Then Schmerler got to cross examine Martin himself, where he again established that many of the esoteric forensic techniques came into use years after the De Soles bought their work from Knoedler.  Schmerler also put some dents in Martin's armor by focusing on exactly what expertise he had with Motherwell and Rothko and by showing an email where he cordially solicited Knoedler and Dedalus’ help in educating himself about the methods Motherwell used.

He also got to point out that the whole affair has been good for business.  It came out that Martin had not only been retained by Knoedler in regard to these ‘Motherwells’.  As he began asking questions about Motherwell’s materials, methods and techniques, the well-funded Dedalus Foundation hired him to expand upon this work to develop a database of sorts that would help forensic analysts authenticate Motherwell works in the future, for which he got paid “over $100,000.”  And of course, the De Soles hired him, and he analyzed 16 works in total for the case and gave at least two long depositions, so unlike some of the other downtrodden witnesses, here was one with a smile on his face as the clock ticked on.    The day ended with him on the stand.
Tomorrow the judge is to rule on the admissibility of Carmean.  I won't be able to go in the morning, but have plans to do the second shift.

Wednesday, February 3, 2016

Thank You, Flam

Let the record show that on February 3, 2016, an expert at the Knoedler trial finally used declarative sentences to express opinions about the authenticity of a work of art. Jack Flam was the star witness of the morning session and after a number of uncooperative experts and halting progress, it was bracing to watch Flam cut loose. As usual, I was unable to attend the all of today’s proceedings, but the initial questioning of Flam by the De Sole’s attorney Greg Clarick was completed before the break. 
Flam was itching to tell his story involving the fake ‘Motherwells’ that passed through Knoedler Gallery on Ann Freedman’s watch. Mr. Clarick, Judge Gardephe and even the court reporter asked him on numerous occasions to slow down as he unloosed a torrent of information, facts and opinions, all of which he clearly intended to damage Freedman. 
Flam is a serious scholar.  He is head of the Dedalus Foundation, which seeks to preserve the legacy of Robert Motherwell, and, not incidentally, is one of the authors of the Motherwell catalog raisonne. Flam had no problem distinguishing between the various different paintings as the discussion shifted among them.  He seemed to have reviewed his calendar and notes before appearing in court and had dates and facts at his fingertips.  As such, he was a very compelling witness and, in my opinion, his testimony did indeed hurt Freedman as he almost certainly intended.  He probably would have been an even better witness had he been more concise and less freewheeling.  Flam often had the bit between his teeth as he answered and often found himself ending up far away from where the question had begun.  He also sprinkled his answers with art historical and technical terms which may well have meant very little to the laymen of the jury. 
There were four Motherwells that Glafira Rosales brought to Knoedler in total, although not all were sold to outside clients.  At least one is apparently still in Knoedler’s possession, while another was bought by Freedman herself. Flam picked them all apart with cruel precision.
In short, Flam’s testimony today was that starting in 2007, he repeatedly warned Freedman that these works were likely fake but she rebuffed him every time, obstinately clinging to the fantasy of their mysterious provenance.  Flam stated that he first saw one of the group in early 2006, was told the story about David Herbert and “Mr. X” and so forth.  By later in 2007 he had seen some of the others and began to involve his staff and board at Dedalus in the process of vetting them.  While numerous meetings with Freedman took place, Flam and his colleagues began closely examining the works and doing research, after which he became deeply suspicious of the authenticity of all of them.  Flam started expressing his doubts to Freedman around then, and ever more so as time went on as his inquiries yielded worrying results.  Freedman for her part maintained all along that they were authentic.  At an impasse, they mutually decided to submit the works to forensic testing in early 2008 but Freedman was not forthcoming about the outcome of this testing.  By November, 2008, after repeated nagging from Flam, Freedman finally showed him some of the results of this scientific examination, which was damning.  Freedman nevertheless persisted in requesting additional research, which Flam/Daedalus did and which again seemed to prove that the works were fake.  Finally Freedman stopped returning his calls. 

Flam was asked if he authenticated Rothkos, which he does not and Flam expressed “extreme surprise” that Ann Freedman had out his name on the list of experts that she gave to the De Soles, stating that she never asked his permission to do so.

The expert then began explaining how a work of art is authenticated stating that there are four factors:  connoisseurship, provenance, fitting the work into the historical narrative of the artists life, which involves the work’s date, and, lastly, forensic testing.  It was his ability to explain how an expert looks at a painting and determines its authenticity that I found the most compelling.

Flam then started dishing details in a way that made it clear to me that he wanted to cast aspersions on Ann Freedman.  About the David Herbert story, he quoted Freedman as saying that Herbert was homosexual and so was Mr. X and that they were lovers, and also that the son of Mr. X is a homosexual, and because homosexuality is frowned on in Mexico it would be dangerous for any details about their identity be revealed.  He claimed that Freedman’s story "had a lot of moving parts" and that it kept changing and had also included Alfonso Ossorio.  This was all told with a great deal of eye rolling on his part.

At one point, Flam said, Freedman opined that Motherwell had gone to Mexico on a trip in the 1950s, around when the paintings were said to be made and been a guest of Mr. X.  However, Flam was at that very moment compiling a chronology of Motherwell’s life and told Freedman that the artist had not visited Mexico between 1944 and 1968.  On this, as on may other occasions, Flam portrayed himself—convincingly—as having a great command of the facts of Motherwell’s life and art which he contrasted with Freedman’s lack of interest in discussing anything but David Herbert.

As Flam came into close contact with the purported ‘Motherwells’, he started seeing problems.  The signatures on all of them were identical…”as if a template had been used”.  One of them was titled on the back “Spanish Elegy” which was indeed the title of a series that Motherwell used, but which was never, ever written on the back of any canvas.  The paint application, the areas of matte versus glossy, and the drip marks were not typical of Motherwell, in his opinion. 

Flam says he told her all of this, but she “kept bringing up David Herbert” and would never engage with his observations about the physical qualities of the works.

Of another painting he saw, Flam noticed that it was done on an old canvas, with old nail holes and an image of something else underneath it, not by Motherwell….according to Flam, this was untrue of any other Motherwell he had ever seen.  Motherwell simply did not take used canvases to make his works, it seemed fishy to him, as if someone was trying to give the appearance of age to a fake by using an old canvas. 

Furthermore, the support was warped, but the paint layer was absolutely pristine; if a canvas bows, then the paint should crack, he noted.  The whites were too white, he also said. 

All of this he told Freedman, but, Flam said, she just offered more about David Herbert, never giving her own observations about materials, methods or techniques, only provenance.

Finally, Flam agreed that he would keep an open mind if she could give him some information about Mr. X, or even the person who brought in the works, which never happened. Instead, she sent him the opinions of two experts, one of them Stephen Polcari, who "loved" the work, which Flam found laughable.

EA Carmean, the former National Gallery curator who was working for Knoedler payroll at this point, also seems to have been an advocate.  Flam told Carmean over lunch after they both examined one of the ‘Motherwells’ that “the work looked more like the Elegies than the Elegies”.  Carmean tried to argue that maybe someone else had written the wrong date on the back.  No, said Flam, that was pretty unlikely. 

The chemical testing then came about.  Supposed to bring closure to the issue, Freedman was unresponsive, said Flam, until 9 months later when she said that they had a “draft report”, but she wanted to wait until it was completed. 

Then, in January, 2009, Flam got a package containing the report, in “redacted form”, via messenger, from Knoedler that said he could read it over night, but could not copy it or discuss it with anyone else and had to bring it back the next day.  This report, while final, was not complete, because Carmean “disagreed” with some of it, so they seem to have withheld the conclusions. The next day, Flam brought it back, but at this point he was even more convinced of the fakery.  The work, according to the forensic analyst, had been sanded down with an electric sander…not the way Motherwell worked, to Flam’s knowledge.  Worse yet, there was a layer of acrylic paint UNDERNEATH the oil paint…acrylic paint which Motherwell did not use until the 1960s and which wasn’t even commercially available in 1953 when the work was said to have been executed.

Freedman stuck to her guns, asked Flam to verify that Motherwell never used a sander or that he might have had a studio assistant that did so.  According to Flam, Freedman even wondered aloud if ‘someone else’ might have signed the works, which “horrified” Carmean (objection!).

Anyway, he have his staff look into the sanding business but no dice.  Motherwell was bad with tools, didn't have a studio assistant at that time and no other paintings they knew of had ever been sanded down.

Unlike a lot of the other experts who were on the Knoedler list given to the De Soles, Flam was never in a position of having to flatter Freedman.  He never, ever said nice things about the fakes. (actually, I read Brian Boucher’s coverage of the entire day and it seems that when he first walked into Knoedler he was initially  taken…but he quickly changed his tune as he started really looking).  There are no emails or little essays or letters saying how wonderful he thought they were, in contrast to many of the other experts who are now saying the opposite. 

The cross examination was to come next, which I had to miss, but Flam was, I think, easily the most damaging witness to have testified to date.  Regardless of who one believes in this case, I think it cannot be argued that hearing Flam speak so freely and frankly was a breath of fresh air.

As a professional in the art world, I am very grateful that Flam actually described how an expert examines a painting and how they go through the process of determining authenticity.  Rather than wave a magic wand and say something is right or wrong, he laid out, in plain speech what one looks for.  The paint being perfect, for example, when the canvas is warped.  He compared the works in question to examples of Motherwell's paintings which are known to be authentic and noted significant differences. 

The defense has all along pointed out that for much of the period covered by the Rosales affair, forensic testing was not in wide use in the art world, that the technology did not exist.  So I expect that fact will be brought to bear on these ‘Motherwells’.  But even without the science, Flam showed that there is a solid methodology that can be employed, it's not hocus-pocus.  I have been complaining all along how bad this trial is making everyone look.  Flam was the exception, his behavior in this instance was something that the art world can be proud of.

Flam has spoken many time advocating for scholars and experts to stand up and say if they see fakes, he decries the secrecy that is commonplace in the art world, he thinks it gives cover to nefarious actors. It certainly is easy for him to say; he has a steady paycheck and a staff to help him perform authentications.   But he does have a point.  If more people were as thorough and transparent as he was, it would be a good thing. 

Stephen Polcari

While Flam was the star witness of the day, he wasn’t the first.  Polcari received a final going over to begin the morning session.  Luke Nikas, Ann Freedman’s attorney, reminded Polcari that he had said he never “authenticated” anything…and then flashed on the screen a number of the tear-sheet essays and catalog entries that Polcari had written which said things like “I am convinced of their quality and authenticity.”   Ouch.  Nikas actually tried to repair some of the damage that Polcari had caused himself as a witness when he had stated he couldn’t tell the Rothkos apart by pointing out that it was a long time ago.  Nikas also rattled off Polcari’s considerable academic credentials and the fact that he has done work for IFAR. 

Thus, it seems to me now that the plaintiffs wanted him to look like a buffoon to undercut Freedman…that she relied on someone she shouldn’t have…and the defense need him to be credible enough to give her cover…that she relied on someone reliable.

Polcari looked drained, beaten down.

Frank Del Deo

Frank Del Deo was called next.  Del Deo is an affable man who was a rising star in the art world, working as Associate Director at Knoedler from 1999 – 2009, and then was made President from 2009 – 2011, after which he left.  Del Deo was one of the principle salespeople at the firm, contributing to the success of one most well respected, powerful galleries in the universe and is certainly part of the considerable collateral damage that the implosion of Knoedler caused.  However, unlike some of the other employees at Knoedler, his career is far from over and he now runs a gallery with another former Knoedler employee, Ben Barzune.

While Del Deo probably had some bad luck, or at least bad timing, he can be thankful that he never sold any of the Rosales works.  It is typical among a competitive sales team within a gallery that the person who brings in the material often has the chance to sell it.  For one thing, compensation is generally calculated on one’s sales and profits.  So why would Ann Freedman share such a windfall with her subordinates? Del Deo did admit to having chatted with Rosales “several times” and been in a meeting or two, but he seemingly dodged the bullet as Freedman was playing keep-away. 

The De Sole’s lawyer, Emily Reisbaum, tried to establish what percentage of profits that Del Deo typically earned on sales, if there was a difference between consigned and owned inventory and so forth, the obvious intent was to demonstrate that Freedman was earning an astronomically high percentage compared to normal gallery practice.  Del Deo didn’t really play ball and gave ranges and hemmed and hawed, but Reisbaum was able to pin him down a bit on some of it. 

Del Deo was asked about any collectors who ever got refunds from Knoedler and he was aware of two, both because of material that Rosales had brought to them. 

There was discussion of how he became to be President (Freedman was suddenly gone) and why he decided to leave Knoedler suddenly.  Del Deo did offer the information that Michael Hammer, Knoedler’s owner, was selling the building, and they hadn’t found other space (they were thinking of moving to Chelsea!).  But as the questioner drilled down, it became clear that the entire business was in turmoil and that the FBI was nailing subpoenas to their door (not literally, I am trying to be funny).  They closed on December 12, 2011, while Charles Simonds’ show was still on view.

Because Del Deo had extensive contact with Knoedler’s lawyers as the gallery was going down in flames, a lot of discussions were covered by attorney/client privilege.  There were numerous side-bars and objections, redacted letters and so forth.  Add to that some technical glitches, as well as Del Deo’s doggedly opaque testimony and I didn’t feel that Reisbaum made too much headway.  There was a lot of “I don’t recall” out of Del Deo…hard to believe that details about such a cataclysmic event would elude the man, but they really had to drag it out of him.  They did get him on the old ‘does this refresh your memory as I read back your deposition’ once or twice, but Del Deo simply had trouble remembering a lot of stuff.

I suppose there is very little upside to Del Deo opening his mouth.  Sure, he’s probably love to see Freedman eaten by fire ants after what went on, but that might well happen without his help, and he runs the risk of exposing himself to all sorts of pain if he lets something slip while trying to twist the knife.   None of anything I have ever read before this trial, or during it has ever linked Del Deo to any of this, so he had every right to pull up the covers and hope the lawyers went away and eventually they did.  Once again, this whole affair has caused a lot of pain.