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.

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.

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

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.

"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.

 

Knoedler Trial--Looking Back at Week 1

Looking back over the first week of the Knoedler trial, the strategies of both sides are playing out in a way that has been widely expected:  The plaintiffs, Mr. & Mrs. De Sole, are claiming that they relied on Knoedler Gallery and its president, Ann Freedman, and that she abused their trust.  Freedman, and the holding company that owned the gallery are arguing that she had done substantial due diligence, was herself a victim of the forgery and that the De Soles had an obligation to do a bit of digging themselves.  Remember, it is not a refund that De Sole wants; he wants damages, so the legal hurdle is much higher—how high it should be seems to be the question here.

I have attended three morning sessions so far.  I hope to get to some next week, but work may well get in the way.  Fortunately, many journalists are following the trial closely and have produced some excellent work on the trial such as  MH Miller at ARTnews;  Eileen Kinsella, Sarah Cascone and Brian Boucher at artnet;  and Laura Gilbert at The Art Newspaper.

Serious bloggers like Marion Mannecker at The Art Market Monitor have some coverage, and Donn Zaretsky does his usual thorough job aggregating coverage, including Twitter at The Art Law Blog.

The New York Times has run a few pieces, but I have to say, I am surprised they aren’t doing more.  The art press is running circles around the paper of record.

Most people I know in the art world think Freedman is guilty.  Of course, most of the people I know are art dealers and art dealers, it must be said. would have a natural bias against her.  If she is found by the jury to have been so bad that she (and the gallery) have to give the De Soles triple their money back, the point of view that she is an extremely bad apple who is way different from most art dealers can be upheld. If the defense prevails, it might well create a moral hazard in that dealers would not have to pay damages even in cases where their negligence could be proved. 
Either way, as I have said elsewhere, the trial is dragging the profession through the dirt so it is understandable if a lot of people in that profession are angry with Freedman.

Blake Gopnick, in his usual tightly argued, well written, provocative way has pointed out that everybody adored the painting before it was revealed to be a fake, concluding :

“What De Sole's lawsuit really proves is that the art market, and most of our culture, doesn't care about works of art for any inherent virtues they have, or for the creative minds they bear witness to; it cares about them as sacred relics of a sainted maker, touched by his or her hand and only valuable because they have been.”

Gopnick goes on to imply that the thirst for such authenticity is caused by the market itself—providing one more reason in an ocean of them that this case is generating all sorts of awkward conversations for art dealers.

But even the most neutral observer (and Gopnick!) would have to admit that Freedman is guilty of something.  I mean, yes, we are all sinners, but her behavior was pretty crummy, way worse than run-of-the-mill bad.  For example, when you are an art dealer and someone buys something from you for a ton of money, you look after them.  You know...remember their names the next time you see them, invite them to openings, offer them VIP passes to art fairs, and tell them if recent developments have given you reason to have an inkling that the painting they bought might be fake. This last courtesy seems to have been overlooked.

As the years passed after the De Soles bought the painting by Pei Shen Qian which was signed "Rothko" and which strongly resembled the mature work of Mark Rothko, and which was listed as such on the invoice created for the transaction, it became increasingly clear to Freedman that the source of this painting was problematic.  In 2008, for example, 4 years after the sale, she was writing urgent letters to Glafira Rosales begging her for some documentation on the works, asking her that she swear the works were authentic and demanding that she introduce her to the ‘son of the Mexican/Swiss collector’ who was providing these works because the Daedalus Foundation, set up to administer the Robert Motherwell Estate, had determined that all of the ‘Motherwells’ provided by Rosales were fake.  Around that time, Knoedler even hired an outside forensic analyst to look at the materials used in one of the ‘Motherwells’ who came to the same conclusion—the materials used to make the work were not available when it was said to have been created.  (Even as late as July, 2008, she was still selling Rosales material to other clients). Then, in 2009, FBI subpoenaed Knoedler in connection to a criminal probe into Rosales, they put Freedman on leave, and she then resigned.  So along the way it had to have been pretty clear to Freedman that there was a bit of an issue with the Rosales material.

And yet, not once, according to the De Soles, did she pick up the phone and let them know there might be a problem.  It would have been a rather unpleasant call, but I am certain that if she had called up and said she was sorry, that she had been fooled, that she should have known and that she would refund their money when she could, etc. etc., the De Soles would not have been so angry.  Instead, in their telling, the De Soles learned of the problem by reading news reports of another collector who was suing Knoedler over a painting that had come from a ‘Mexican-Swiss’ collection.  Hence, their fury.

In my opinion, that is what is driving this case forward.  The De Soles are paying some eye-watering legal bills, admitting publically that they fell in love with a fake painting and spending their days in a federal courtroom because Freedman didn’t have the decency to break the bad news to them herself.  One very reasonable conclusion one could draw is that Freedman hoped the whole thing would blow over and she hid from the problem rather than confront it.

Random Thoughts

The wheels of justice move slowly.  There is a lot of downtime, with breaks, side bars, jurors who show up late and so forth. Also, they take away everybody’s phone, so there is a lot of time for one’s time to wander. 

Speaking of the jury, in contrast to the audience and entire court, they are a very diverse group of people.  One of them begged off the case after the first day, writing a long letter to the judge where she said she was stressed out and so on.  He let her off the case, so there are now 9 of them…I assume that 6 will decide and thus there are two alternates.  What a pain.  If you want to get off jury duty, can’t you figure out a way to do so before you are selected for the case? 

The judge, Paul Gardephe, is impressive.  He seems to be able to read along as the court reporter types up the testimony as well as listen to what’s going on.  The various objections are checked by him against the record and ruled on quickly.  He seems to know pretty much everything and to have done his homework.  He is able to locate all the various exhibits and so forth immediately.  I was surprised that he occasionally takes over the questioning for the lawyers…he can see objections coming a mile away and jumps in to keep things moving.  This trial is supposed to last a month, but this guy is doing everything he can to speed things along. 

An important matter he is supposed to rule on is the possible appearance of the only appraiser on the list, Elin Ewald.  She is supposed to testify about what the painting would be worth if it were real in the market of 2013 when it was discovered to be a fake.  The judge stated that he found the various filings and citations by both parties to be inadequate regarding the admissibility or relevance of such testimony, in connection with a breach of warranty under the Uniform Commercial Code.  He is supposed to decide soon.  Ewald is easily one of the top appraisers in the country, so I hope to get a chance to see her take the stand; it would also appear that such a ruling would have a great impact on such cases in the future.

One of the most damaging things to Freedman’s defense is the huge mark-up she was charging on this material.  Most times, if a dealer is laying out their own money for a work of art, they would expect to double or maybe triple their money in a short amount of time.  This might sound steep, but there is a great deal of risk that the dealer takes on.  But in some cases, she was making up to 7 or 8 times as much as she paid.  In his opening, her lawyer, Luke Nikas, tried to take the edge off of this by pointing out that she did a ton of work…bringing in the experts, paying for conservation and so forth.  I expect this to be brought up and chewed over more in the coming weeks.

During one of the many breaks, I was chatting with an artist who was sketching the combatants.  I now know why these drawings always show everyone in profile….they aren’t given seats in the front, but have to sit in the audience, so they never see their subjects head-on.  I remarked to this man that most of the sketches seem pretty complimentary, and he told me that the originals are often sold to the various participants in the trial, so of course the artists flatter them!  Amazing.  Even amidst a trial that may well damage the art market, potential sales are being contemplated.  I didn’t get a chance to ask him what the pricing was…my mistake.

A lot of the press over the years as well as some of the legal filings have pointed out that convicted swindler Glafira Rosales lived in Long Island, with the very strong inference that no art dealer who lived there would have access to such masterworks, unless maybe it was the Hamptons.  However, a number of the documents addressed to her that have been showed in court put her residence in Great Neck, which is hardly a slum.  Interestingly enough, she seems to have later moved to the even more tony Sands Point, New York…a bastion of old money that was the real-life location of East Egg in The Great Gatsby.  Rosales seemed to be moving up in the world!

I have written before about how this case has marked the passing of an earlier age in the art world. It is certainly amazing how old-fashioned the art world of 2004 looks today.  Some testimony mentioned a ‘transparency’ which now seems as quaint as a buggy whip but which used to be the ubiquitous way in which art was offered.  There was mention of fax machines as well.  One thing I haven’t heard yet is the gallery being called “Nerd-ler”.  Almost everyone who was in the know called it “Nerd-ler” when I was younger.  Something to do with the way it would have been pronounced in Germany (it used to be you had to study German to get an art history degree!).  In court, however, it’s “Know-dler” all the time. 

At any rate, I will try my best to keep attending the trial, it’s a real eye-opener all of it.

The End of an Era--The Knoedler Trial Marks the Passing of the Classic UES Gallery

Upper East Side galleries like the kind Knoedler was are a dying breed.  Gone are the days when American paintings commanded more attention than contemporary art, or when people could see a dozen solid shows walking down Madison Avenue from 79^th Street to 70^th Street.  Real estate prices, the internet, changing collector habits and so forth have all played a role in this process, as has the general tendency in New York City towards change.  New York changes completely every twenty years—the energy of each generation transforms our great city in such a way as to make it unrecognizable to the last.

Gone as well (I think) are the days when a collector will buy a secondary market Post War work of art for seven figures which has no documentation whatsoever, with only the assurance from a respected dealer that it is authentic.  While the above factors can also be blamed for this, the activities on the Upper East Side that have been discussed at the Federal Courthouse in downtown Manhattan this week are probably more of a factor. 

I was reminded of the fact that galleries used to be different by two witnesses who appeared in court this morning at the Knoedler trial.  The first was Jaime Andrade.  People like him were a fixture of uptown galleries back in the day.  It would be impossible to say exactly what they did, but they were usually the first person a visitor would see at the gallery…not sitting at the front desk, but perhaps opening the door, carrying something heavy…just somehow there whenever anyone dropped by.  Galleries then, as now, typically hired attractive young women to staff the front desk but these jobs have always been a stepping stone for ambitious recent college graduates who would not be accustom to the various passersby.  By contrast, men like Andrade had decades on the job and thus knew everybody who might enter the premises from the Rockefellers to the homeless.  They had been to client’s homes to install works, and to artist’s studios. They went to the post office to add funds to the franking machine, they hung the shows and they made it in through blizzards.   In short, they were the institutional memory of these galleries, an integral part of day-to-day operations who added character to the shop. 

Ann Freedman’s attorney, Luke Nikas, stated in his opening that Glafira Rosales had used Andrade as a conduit into the gallery, making it seem as if the shifty grifter had taken advantage of a low-level functionary at Knoedler to gain access to the people in control. I missed the beginning of Andrade’s testimony yesterday, but Nikas had an opportunity to question him today and did not, so I assume that Nikas didn’t have the guts to hear what Andrade had to say about this theory.  I can’t say with any certainty that Nikas is wrong, but it doesn’t sound right to me.  Anyone who wanted to get through the door at Knoedler would have had to get past this guy, and it wasn’t his job to find consignors for Freedman but rather to make sure that they felt comfortable whenever they visited. 

Andrade was dressed to the nines in court, with a wool three-piece suit and matching hat, and seemed to me proud of what he had accomplished in this career.  I am not sure what the reason was to drag him through all of this, excepting that he seems to have been one of the gallery employees that encountered Rosales regularly.  In his testimony, I think I heard him say that he had worked for Sidney Janis as well as for Richard Feigen.  English is not his first language and I may have been wrong.  But someone should interview this man for posterity, he probably knows more about art and the art business than most. 

Next up was Melissa De Medeiros, a long-time employee of Knoedler who worked there from 1984 – 2013.  That is just the way these places used to roll.  These days, if people stay at a company for more than 5 years it is remarkable.  At places like Knoedler, you’d still be a newbie.  De Medeiros was asked what her job was, which she had trouble answering.  She’d had no precise title for much of her time; she’d done a lot of things--been in the library, oversaw administration and, unfortunately for her, she was Freedman’s assistant for a couple of years right when the Rosales situation came to a boil.  Again, this was so typical of the way these galleries ran; one or two people would handle sales and everybody else did everything else.  Galleries, even big ones like Knoedler were not organized like corporations.  This is not to say they didn’t make money, but rather that the way in which collectors and galleries interacted was intentionally low-key and a little bit slow-paced.  Collecting in these places was supposed to be more of a hobby than anything else, so galleries tried not to behave like a grubby retail operation. 

De Medeiros came across as knowing her stuff.  The judge asked her early on who were some of the names on a list of artists and she told him clearly and succinctly, even dropping in the year of Milton Avery’s birth without consulting her notes.  In her testimony, she revealed that even in 2007, Ann Freedman was dictating emails to her, which she would send to clients on her boss’ behalf…talk about old school!  Even more old school, despite it being the 21^st Century, she typed up a number of memos and letters which were entered into evidence and shown to the jury.  These all centered on Freedman’s interactions with Rosales. 

The plaintiff’s attorney, Gregory Clarick, walked her through the various written documents.  Watching legal dramas on TV is way better than sitting in court, which can actually be quite boring.  Every time a new scrap of paper came to the top of Clarick’s pile, he had to hand two copies up to the bench, one for the witness and the other for the judge, then the witness had to recognize it, whereupon Clarick requested it be admitted.  The two attorneys on the defense (one for Freedman and the other for the holding company that owned Knoedler and which actually has assets to pay the huge damages claimed by the plaintiffs) both state they have no objection, so the judge says the evidence is admitted, and then Clarick asks permission to show it to the jury on the screens in front of each of them, which is then granted.  Over and over and over. 

This was frustrating for an observer but the strategy became clear.  In looking at the various memos recording encounters between the two, Clarick was trying to show that Gonzales changed her story about how these fakes had been purchased and that she also changed the contents of the collection to match up with what Freedman asked about.  For example, initially, no Jackson Pollock works were mentioned, but when Freedman asked if there were any, some appeared.  His point seems to be that someone should have smelled a rat.

Clarick asked De Medeiros about all of the research that she did in trying to authenticate the various fakes or to verify other parts of Gonzales story.  He asked numerous times if there was any specific documents that she found at the Archives of American Art and elsewhere, to which De Medeiros replied that she found convincing evidence that the stories could be true but that she had not found any documents.  She had obviously worked her ass off trying to find something to support the authenticity of these works on behalf of her employer.

I had the distinct impression that De Medeiros was somewhat of a hostile witness.  A few times Clarick alluded to her previous testimony and implied that she was contradicting herself and in general she made his life a bit difficult, being prickly about wording and so forth.   But here was a woman who had spent almost 30 years working at a prominent gallery, for whom this collection of works, now known to be fakes, was likely a high note of her career.  Freedman undoubtedly made her aware of the importance of this work—at one point, De Medeiros even testified that Freedman referred to the consignor as the gallery “Secret Santa”.  Who could blame her if she wanted it to be clear that she had given it her best shot?

Art Historical research is always a bit hazy; the words ‘might have’ and ‘likely’ are often as best as one can get in these situations.  The art historian does not write legal documents…or invoices for that matter.  De Medeiros must have known that the stakes were high.  She obviously worked very hard to establish a link between what was being told to her by Freedman and Rosales and what was in the record and there was no upside for her to come back empty-handed.  Was she in on the racket?  Hard to imagine…nothing so far has been suggested along these lines.

Regardless of how this all ends, I am struck by the fact that an era in New York is over.  This is not a tragedy—things change.  And Knoedler might well have disappeared without Freedman’s help (one expert has determined that absent all these fakes, the operation was not a going concern).  These two employees with decades of service might not have jobs today even if Rosales had never walked in the door.  But both of them had to testify today and it certainly seemed as if both of their careers are over.

The Empire Strikes Back - Ann Freedman's Team Opens Her Defense

Ann Freedman, the art dealer at the center of the Knoedler art forgery debacle, stood in open court today and was introduced to the jury hearing the case brought against her and her former employer.  Freedman’s lawyer Luke Nikas, a partner at the prominent law firm Boies, Schiller & Flexner began his defense of his client with an opening statement that not only laid out the facts that rebut the plaintiff’s assertions that Freedman knowingly committed fraud and conspired with others to defraud them but also sought to humanize her.  Unfortunately, I was unable to attend yesterday’s proceedings, and had to leave before Nikas finished but I look forward to hearing more.  The case offers a rare opportunity to observe the machinations of the art world, as well as to document the numerous pitfalls that exist for any professionals that are involved in buying and selling fine art, particularly on the secondary market.  I must confess, too, that it is gripping entertainment, watching one of the formerly most powerful dealers in New York face an angry client in front of a federal judge and jury.

One image where copyright is not an issue

Luke Nikas is a soft-spoken lawyer who does not seem given to hyperbole.  At one point, the court reporter asked him to speak up, and his strategy here may have been to seem unfazed by the many accusations hurled at his client the day before as well as to project a sense of calm.  Regardless, his straightforward manner served him well as he walked the jury through Freedman’s version of the situation.  His first task was to explain Abstract Expressionism to the jury—no easy job under the best of circumstances.  He focused on three of the major names, since they are all painters whose works are involved in the case:  Robert Motherwell, Mark Rothko, Jackson Pollock, and made the point that they were all basically alcoholics whose lives were hectic and for whom record-keeping was not a priority, the obvious point being that unlike a car, for example, there is not necessarily a paper trail for the sale of works of art…even ones which later trade for millions of dollars.  Talking about a complicated, rather inaccessible thing like gestural abstraction to a group of lay-people who probably would rather not be on jury duty is not my idea of fun, but Nikas hung tough and should be forgiven for resorting to showing the scene where Pollock trades a painting for beer and falls off his bike from the Ed Harris 2000 biopic on the artist. 

Nikas then described the various ways that fine art is proved to be authentic in the marketplace, stating that dealers turn to conservators, connoisseurs and art historians for this.  He made what was, for me, the rather stunning assertion that “an art dealer is not an art expert,” going on to say that they are really just salespeople who need to hire others to vet the things they deal in.  This would be a surprise to the Art Dealer’s Association of America, of which Knoedler was a member, whose mission statement clearly states that it seeks to “promote the highest standards of connoisseurship [and] scholarship” in the profession.  It must have been beyond painful for Ann Freedman to hear her lawyer say that about her.  No dealer at that level would want to be seen as merely a salesperson, without any expertise, but here is one reason why the case is such sensation in the art world—the entire concept of trusting dealers is being sullied.

Nikas went on to show that numerous experts stood up for the material Freedman was selling in an effort to demonstrate that she had good reason to believe it was authentic.  It should be noted that his strategy here was shrewd; obviously these situations are two-way streets but Nikas made it seem as if experts always operate free of any outside influences.  These opinions were not offered in a vacuum however; they were approached directly by Freedman, the director of Knoedler, which was a powerful gallery with an impeccable reputation.  The fact that Freedman was entertaining the possibility that these works were authentic would have shaded their thinking. 

While he wasn’t being really nasty, this part of Nikas’ opening statement in effect dragged the reputations of a lot of experts through the dirt.  E.A. Carmean, who was a powerful curator in the 1980s and 1990s before becoming an Episcopal priest (and who joined Knoedler as head of research in 2003), wrote a letter that praised one of the works in the mess.  Dana Cranmer, a conservator who worked closely with the Rothko Estate in the 1980s said she thought at least one of the ‘Rothkos’ was authentic.  David Anfam, a noted scholar and author of a Rothko catalog raisonne was also apparently fooled as was the curator Laila Nasr.  Even dealers David Mirvish and Ernst Beyeler along with Christie’s auction house were included as those who had accepted the authenticity of some of the various works.   In addition to providing cover for his client, Nikas was trying to steal some of the plaintiff’s thunder, as many of the above are scheduled to testify and he wants to undermine them should they go on record as having had doubts about the paintings. Nikas wasn’t saying that they were stupid; his point was that these were really, really good forgeries and could have fooled anyone.  But again, how awful for these men and women.

Before he got too far into all of this, Nikas asked his client to stand up and he presented her to the jury.  He described Freedman as coming from a modest home and that she had worked hard to get to where she was.  He also pointed out that she continues to be active as a dealer.  He spoke of her 47-year marriage and her 30 years at Knoedler, pointing out that loyalty was important to her.  It was a touching moment, and one meant to humanize her.  Freedman does not enjoy a resounding amount of support in the art world in general at present and I doubt that this trial will do much to change anybody’s mind.  But the jury had heard so many awful things about her, I felt it was an effective part of the opening statement.

Nikas went on to point out that initially, Freedman made very little money herself on the various forged paintings that passed through Knoedler, which, according to his argument, undercuts the notion that she was a greedy conspirator from the beginning.  He painted her as a victim who gradually got ensnared by a crook.  He pointed out that on a number of occasions, Freedman used her own money to buy works from Glafira Rosales, and that ‘she believed in these works’.  Again, remember, Freedman was at the top of her profession before this scandal broke.  Now she is paying a top lawyer to say that she was an easy mark for a two-bit hustler who played her for a fool, concocting stories and feeding her valuable forgeries at tempting prices.

I plan on attending more of the trial and look forward to hearing from the many witnesses on the list and will have some more thoughts as time goes on.  My takeaway at this point is that an appraiser—and any professional honestly-- should always think about what their work and their actions would look like in court.  Because when a trained, skillful lawyer who has the time and resources to go through a dispute starts talking about you in a courtroom, you are probably not going to like what they say—unless you are paying them yourself and then things are infinitely worse.