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 here. Michael 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.