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 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.

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.