"All Rothkos Look Alike"

The Knoedler/Freedman trial carried on casting aspersions on the entire ecosystem surrounding the collecting of high-end art today (February 2, 2016).  This time scholars and art historians took a turn at being made to look bad.  Two experts, Dr. David Anfam and Dr. Stephen Polcari gave testimony.  As usual, I attended only the morning session of the trial, so only got to see the cross-examination and then redirect of Anfam, and the initial questioning of Polcari by the plaintiffs who called him as a witness.   I’m not sure who came off worse, quite frankly, but I am going to go with Polcari who actually said—twice—that “all Rothkos look alike.”  Great.  Not only are all art dealers crooked, the whole thing is an emperor’s new clothes thing, confirming the suspicions of that guy I met at a party who told me his kid could do that.  I will do my best below to put it into context, but I will say it again:  This trial makes the art world look pretty ugly.

The strategy of the plaintiffs is rather clear at this stage.  At the time of the sale, Ann Freedman proffered a list of experts to the De Soles which stated that they had all ‘viewed’ the painting, which the De Sole’s said they construed as meaning that these people had specifically authenticated it.  The De Soles also assert that Freedman verbalized at least some of these names to them and that she specifically said that they said that the work was authentic.  Thus, the De Sole’s attorneys are going down the list and asking all of these various experts what actually went on.  Naturally enough, they are horrified that Freedman put their names on such a list and so far, all of them have said that they aren’t in the business of providing authentications in the first place and that they never did so in this instance, or any other instance involving the Rosales material. 

Indeed, anyone sitting through this trial would have to conclude that nobody in the entire world authenticates works of art, except if they are practicing attorneys and they are wearing a burka.  I can’t say I blame any former art authenticators who have now decided to stop providing such services.  The pay is lousy and one might end up in a court being made to look foolish trying to explain to a jury that even the best of them get it wrong sometimes....or as Polcari put it "...They were very good works, they just happened to be done by other artists."

Instead, people who might have at one point said a work was authentic (such as the person writing a catalog raisonne) now go through this whole routine of qualified statements, euphemisms, and code words that unfortunately can make their conclusions seem overly subjective.  We would all like an art world where such experts could do their jobs without fear of getting sued, but the stakes are very high and connoisseurship is by its very nature opaque.   

David Anfam

David Anfam, a distinguished scholar of Abstract Expressionism who wrote the catalog raisonne of Rothko’s paintings was painted as a flip-flopper by the defense, eager to tell anyone who was listening to him what they wanted to hear.  I didn’t get to hear the first part of his testimony, which presumably was a bit less harsh (here is Brian Boucher at piece about Day 6 on  artnet). 

Anfam is hard of hearing, so the proceedings were quite slow as questions were often repeated. The glacial pace of the trial at this point may have made Anfam seem less than forthright; certainly Luke Nikas, Ann Freedman’s attorney was trying to paint him as such and may have worked this angle to his advantage.  Nikas seized on the fact that Anfam had numerous transparencies in his files of paintings, including the fake Rothko, from the tainted Rosales collection and that Anfam had admitted seeing all of these works in person except the De Sole’s.  Nikas even did that thing where he asked a question that he knew would be forbidden, something along the lines of: “Isn’t it true that you actually did see the De Sole’s painting in person at Knoedler and are not telling the truth.”  The question was withdrawn in response to a loud objection, but, well, you know…the jury heard it, etc. etc.  Sometimes life imitates television.

Another line of attack concerned a phrase that Anfam used twice in written communications about the works, that something “strains the limits of credibility”.  Before everything went south, in a letter to Jack Flam at the Daedalus Foundation, Anfam wrote to plead Knoedler’s case, as Flam seemed to be having doubts about the ‘Motherwell’ works in the collection.  Anfam told Flam he had seen many of the works from Rosales and that it “strains the limits of credibility” that they could all been done by the same artist.  But, later, when it was pretty clear that the whole group was a bunch of fakes, he used the same words to express doubt to the FBI (which was investigating Rosales at that point) that a single collector would have owned so many undocumented works.  Nikas also brought up the fact that Anfam had sought payment for advocating for one of the paintings to the Albright-Knox museum, and he left a document up on the screen where Anfam had written to one of Freedman’s subordinates that “Ann should soon think of how” she was going to pay him for his work.

Nikas took a few more whacks at him, getting Anfam to acknowledge that he told people at Knoedler that he was 99.99% sure that the various works were real and that they “looked right” and again contrasted that to his later statements of doubts to the FBI.  He also mocked Anfam for telling the FBI that "it always struck me as strange" that all of the works were so small, as if the forger was scared of making larger works where the forgery would be easier to detect, getting Anfam to acknowledge that he was aware of the sizes of all the works all along.

Nikas had used this "strains the credibility” line in his opening and I expect we haven’t heard the last of it.  He is trying to convince the jury that his client had been given many signals by Anfam that the works were OK and that he is not to be trusted now.  Anfam's defense is that he didn't know all of the facts, such as the fact that IFAR had rejected one of the Rosales paintings, or that 30 paintings had come from the same source.

Charles Schmerler, the holding company’s attorney was next up and he tried to build on Nikas’ work.  He got Anfam to admit that Anfam had provided an authentication of a Rothko being sold at Christie’s in 2011, where the owner was not revealed to him.  Schmerler also established that Anfam did not use any "high tech” methods when writing his catalog raisonne, as they didn’t really exist in 1998.

On redirect, the De Sole’s attorney again brought up the fact that Ann Freedman never told him that John Elderfield had expressed doubts in the 1990s about some of the ‘Diebenkorns’.  And to top it off, Freedman never revealed that 30 works had come in from the same source.  That would have ‘rung alarm bells’ for Anfam, because, he said, it would, …wait for it…“strain credulity” that there could be 30 authentic yet undocumented works from a single source.

In sum, Anfam came across as a bit arrogant in the way that many people from England do.  Part of it is just the flowery speech and hyperbole he uses, but he did say that he considers himself the foremost expert on Rothko and never took a single opportunity to self-deprecate.  His manner is to brush off questions that might do him harm, which may or may not have carried weight with the jury. 

Stephen Polcari

Dr. Polcari introduced himself as a retired art historian and quickly made it clear that he doesn’t authenticate works…he ‘reviews’ them, as well as explains their meaning.  Fair enough.  But as he went along, it came out that he started working free-lance for Knoedler from the 1990s – 2011 and that part of his work included, well, the kind of things that one does when trying to authenticate art works, such as going to the Ossario archives to look for information that would prove that Ossario had had a role in the Rosales material (which was the original story that Rosales had spun).  Polcari’s letter to Eugene Thaw, asking him to bless a Pollock was shown as well, further making it seem as if he was acting as an authenticator would.  Polcari also wrote a letter to Jack Levy, who returned a ‘Pollock’ to Knoedler after IFAR had rejected it, which strongly advocated for the works authenticity.

Polcari began his description of working for Knoedler as that of writing essays and curating shows at Knoedler, so it was a bit of a surprise when the conversation turned so quickly to these other activities.  Also surprising was when Polcari estimated that he had been paid $3,000 by Knoedler for his work.  Was that for a single essay?  No, he replied, that was for all of my work over the years.

Holy Shizzit!  Just in case anyone was thinking of taking on student debt to obtain an art history degree, here is a reason not to.  $3,000?  Over 10 years?  The attorney asking the question probably made more than that while reading Polcari’s deposition.  Ann Freedman probably spends more than that every year at Jim’s Shoe Repair.  Unbelievable.

It really is absurd how little these scholars make.  Anfam was made to look bad because he earned a commission by helping Knoedler sell a work to the Albright Knox, for example, when Knoedler was making an absolute mint.  Other experts also got paid to help with the Rosales fakes.  Why shouldn’t people get paid well for their work?

On one level, of course, we are all afraid that money will corrupt the scholarly process.  People writing catalogs raisonne are not supposed to get paid by galleries who have an interest in their decisions, for obvious reasons.  And all those little write-ups Polcari was producing to help sell paintings probably don’t add much value, so I don’t want to overstate the case.  But having these people live like church mice while the dealers who benefit from their work knock down hedge-fund money (well, OK, junior partner at a hedge fund money) is just a disaster which waited to happen and then did so at Knoedler.  Polcari said in a letter that he ‘stood by’ opinions which were attributed to other experts but which he had learned of from Freedman herself.  He didn’t actually check with those other experts…and why would he?  He was making $3 an hour.  Of course, I am sure he would have, if he could do it over.

I learned that in the afternoon, Polcari revealed that Ann Freedman was actually paying his legal bills; Cait Munro at artnet had this in her piece about the trial yesterday.  How generous.  Somehow, that makes me feel even worse that a majority of the money flowing Polcari's way for his efforts on Knoedler's behalf are going to his lawyer.

Polcari was a bit jangly as a witness.  I got the sense that, like Ann Freedman’s assistant last week, Polcari was trying to cover his ass a bit.  In contrast to Anfam, who simply waved away questions where he looked like he was changing his tune, Polcari labored.  His answers were sometimes contrasted with his earlier deposition and shown to be inconsistent.  (The dreaded ‘Does this refresh your recollection’ was trotted out a few times). 

At the end of his testimony, Polcari was asked about something he had written in relation to a Rothko at Knoedler, and the point seemed to be that he had identified the incorrect one from a group of them.  I honestly couldn’t see how this mattered, since what was written seemed to be inconsequential.  But it was at this point that Polcari stated that Rothko, like many artists made ‘variations on a theme’, and that ‘they all look alike’ so he really couldn't say exactly which Rothkos he had or hadn’t seen and/or written about.  This comment drew a lot of laughs so he repeated it.  This is a man who spent his whole life writing about abstract art, including some well received books, who taught students art history, who felt comfortable contacting collectors and scholars.  They all look alike?  I felt that his credibility as a witness was eroded completely (perhaps it strained credulity?) at this point and it probably scored points for the plaintiffs.  Obviously, the defense got a crack at him after lunch, and I am sure that they landed some punches of their own, but the fact that Freedman used an expert who would say something like that damaged her case, in my opinion.

Luke Nikas said last week that ‘an art dealer is not an expert’, she instead relies on others, such as scholars.  Now we have a scholar saying that many of Rothkos works look the same to him.  I am not looking forward to the next salvo to the profession, but I sense there is more to come.