by Gary Vikan
This Renoir was missing from the Baltimore Museum of Art for more than half a century.
Mailing label received at the Walters Art Museum, May 1, 1986.
A tale of love and regret.
When I asked my amiable young lawyer-coach, Doug Lavin, of Manatt, Phelps, Rothenberg, & Phillips, what I should say as an expert witness once I got on the stand, which we assumed would be late Thursday or Friday, he asked me if I had ever seen Perry Mason on television. He had in mind the old black and white version with an agile Raymond Burr and all the original cast. Of course, I said, I had seen them all in reruns when I was a graduate student. Two episodes were shown back-to-back every night starting at midnight, when I got back from the art library, and I watched them both, to get things Byzantine out of my head. Doug’s idea was that I should pretend that I was a witness on Perry Mason and craft my own testimony just as I wanted to give it. And once I had done that, he would turn around and ask me those very questions for which I had just written up the answers. Very clever and comforting, I thought, and with a few prompt questions from his side, I had drafted my testimony the week before.
Our job now, there on the 18th floor each night after my fancy dinner, was to hone my testimony. But by Tuesday, at my third coaching session, it was clear that Doug didn’t think I was doing very well, and time was getting short. I was supposed to be firm and damningly judgmental of the defendant, Peg Goldberg. I had never met her, and saw her only at a distance in the courtroom, but I had read hundreds of pages of her deposition testimony. In truth, I felt sorry for her, and like any academic, and any good Lutheran, I was trying to figure out what made Peg do what she did. This meant that I was trying to explain away her totally bad behavior in buying and then trying to resell these looted Byzantine mosaics. I suppose I was hoping to make another Dominique de Menil out of her.
But as Doug made absolutely clear, this was not what I was being paid to do. I had to come down hard and definitively in my testimony so that Judge Noland would come down hard and definitively in his judgment and take the mosaics from her and give them back to Cyprus. I was, after all, the only witness for the plaintiff who was empowered to draw the threads of the evidence together and express an opinion. That’s what an expert witness is all about. Anyhow, I really didn’t get the point until Doug told me something that may have been lawyerly manipulation, but at the time I believed: “Vikan, she thinks you’re shit!”
ON WEDNESDAY, DAY TWO, there was this totally wound-up Acting Director of the Cypriot Department of Antiquities named Anastasios Papageorghiou—the one who on Monday evening when I got off the elevator was so clearly disappointed. He had the finger-pointing, lecturing manner of a school teacher. Papageorghiou was followed by the much more affable and engaging Marios Evriviades, Press Officer at the Embassy of Cyprus. Their shared message was simple. Yes, we told the world that this church had been violated. The trouble was, as Joe Emerson drove home in cross examination, Marios’ scores of press releases were picked up almost exclusively by Greek newspapers, and so their message really didn’t reach the broader art-buying market. We all recognized this as the high water mark of the trial for Peg and her defense team.
The next day, Thursday, things were put right for Cyprus by their star of stars witness, Father Pavlos Maheriotis, Abbot of the Holy Monastery of Machaeras, with his long beard, black robes, stovepipe hat, and golden-topped staff. Father left by the east side entrance of the courthouse every day after the proceedings, and there were cameras there to capture that moment of solemn drama. Because Peg’s legal team must have assumed this quiet and dignified man, who seemed literally to radiate his profound faith, was somewhere up there in the Orthodox stratosphere, they didn’t prepare well. His message on behalf of Cyprus and Panagia Kanakaria was simple and clear. The mosaics belong to the church and have for 1,400 years. The ancient church has never been abandoned, and only the high administration of this church can authorize the movement of parts of the church out of the building. And it has never done that and never would.
Then the defense lawyer, Ezra Friedlander, who had that sleaze quality that some lawyers have, with clothes too fancy and a tone too glib and condescending, got up to make Father Pavlos look parochial and naive. This was a big mistake. I can still hear Father’s deep sonorous voice and English accent when he told Mr. Sleaze, Esq. that he had a PhD in theology from Oxford University. Somehow, just then, I knew we had won, and I think everyone else knew it too. Tom Kline and his crew took as proof of this the rumor that Judge Noland had asked to go see the mosaics in the bank vault.
The defense side was sometimes just straight-out comical. There was young and diminutive George Feldman, Peg’s business partner, who described in some detail how he would scrub Peg’s back in the bathtub after she had hurt her wrist and could not scrub herself. And there were the very entertaining personality of Bob Fitzgerald, a.k.a. Bob Jones. Two things made us laugh. The first was when one of our lawyers asked Fitzgerald to read back a portion of his deposition, and he said he couldn’t find his glasses. Since this exchange went on for a while, Judge Noland called for a glasses-finding recess. In the meantime someone else’s glasses were found as a stand-in, and then it seemed that the truth was that Bob couldn’t read. Maybe that wasn’t so funny, but it was certainly odd.
The other odd or funny moment came when our lawyer asked Bob, on the basis of his deposition, why he had never told his friend and partner Peg Goldberg that the actual purchase price from Aydin Dikmen was $350,000 and not $1 million. His response made the next day’s newspapers in Indianapolis and New York: “It was just none of her business.” As I understood it, Peg, who was still seated right in front of me, learned that for the first time there and then. After that, they weren’t friends anymore.
The Cyprus legal team had retained a second expert who arrived from California after the trial had begun. He was Arthur van Mehren, a Harvard Law graduate of 1949, who was a world-renowned scholar of international law and comparative law. Just being around this hugely dignified and accomplished man made me feel the way I felt just a week earlier at André Emmerich’s deposition. It was van Mehren’s job to argue that the lex situs—the applicable law for making a judgment in this case—should be that of Indiana, where the money came from, where the buyer lived, and where the mosaics ended up, and not that of Switzerland, where the merchandise had never even left the free port of the Geneva airport.
And even if Swiss laws were applicable, Peg Goldberg did not qualify as a good-faith buyer. By US Common Law a thief can never convey good title, no matter how many intermediary buyers there may have been or how diligent and how much good faith the last buyer had used to investigate the circumstance of the sale. By Swiss (Napoleonic) Law, on the other hand, a good-faith buyer can under some circumstance obtain title to stolen property, provided they had exercised sufficient due diligence. And here is where the van Mehren-Vikan team came into play. In a moment of magic on the 18th floor of the First National Bank on that Wednesday evening, with the old and wise van Mehren at the center of one side of the conference table, me at one end of the table, and various members of our legal team scattered between us, it all gelled beautifully.
I had made up a real-world hypothetical as a memory aide. It involved a Rolex watch offered for sale by a tough-looking young man on Seventh Avenue in New York City, just north of Penn Station. There is broken glass on the sidewalk, an alarm is going off, and people are running out of a building. The young man has six genuine Rolex watches on his arm that are over his shirt but under his jacket. He’s in a big-ass hurry to sell and that $1,500 Rolex is offered at $100.
Arthur van Mehren had extracted the basic principles of this kind of sale: the suspicious object from a suspicious place, a suspicious seller, suspicious circumstances, undue speed, and a crazy price differential. And then I applied those principles—at the conference table that evening and on the stand on Friday—to the facts of the Goldberg mosaic purchase of July 1988. It involved sacred Chri
stian mosaic icons from a famous church in a (once) Greek village under hostile occupation and a Muslim Turkish owner who is reputed to be an official “archaeologist,” but is in the business of selling antiquities. This archaeologist just happens to find some precious and valuable mosaics in the “ruins” of an “extinct” church. An intermediary to find a buyer, Michel van Rijn, identifies himself as a convicted felon. There is a bizarre urgency to sell—the million-dollar deal unfolds in just over six days. And the established sale price, a choice of $350,000 or $1,000,000—is totally out of whack with the $5 million appraisal, and exponentially more out of whack with the $20 million price tag when the mosaics are offered to the Getty the following October by von Hapsburg. We rehearsed a bit and all felt pretty good about it. And, after all, “She thinks you’re shit.”
I was up last, after Bob Fitzgerald, on Friday. I liked that sequence. After me, Tom Kline rested the plaintiff’s case for Cyprus. Although he wasn’t there in the courtroom, Dan Hofstadter, in his two articles in The New Yorker of July 1992 and in his 1994 book, Goldberg’s Angel, captured what I like to think was true:
The most withering of the plaintiff’s expert witnesses turned out to be Gary Vikan, the curator of medieval art at the Walters Art Gallery, in Baltimore, who was eloquent, wry, and conversant with all manner of Byzantine lore. Vikan wearily spelled out ‘provenance’ for the court stenographer and made coolly cutting remarks about art dealers—including Michel van Rijn, whom he seemed to know something about. When Kline asked him what he would have done if he’d been offered this deal, he replied, ‘Walked.’
Whenever Vikan spoke there was absolute silence; whenever he finished there was a murmur of approval.
As I’ve said, my job, for which I had rehearsed with Doug Levin for more than two weeks, was threefold. First, I needed to convince Judge Noland that the Kanakaria mosaics were historically and religiously very important and should be treated seriously. (By that time, he certainly knew that without my help.) Second, it needed to be understood that the Cypriots had done their due diligence in getting the message out that Panagia Kanakaria had been violated. This was critical, since if you “sit on your rights,” that might suggest you have dirty hands, and you will eventually lose your right to press your case in civil court.
Joe Emerson’s cross-examination of Papageorghiou and Evriviades two days earlier made my job a little tougher than it might have been. Had Cyprus only been talking to its Greek choir? Well no, I said. By targeting places like Dumbarton Oaks and people like Marion True, they would certainly intersect with any and all potential good-faith buyers, who, given the unusually sacred nature of the merchandise and the sky-high price, would be few in number. My point was that whoever might consider this purchase would for sure consult one or more Byzantine specialists, and these were the people Cyprus had taken care to reach. And this was good.
And third, there was the issue of Peg Goldberg’s “good faith” or lack thereof as a buyer, should Judge Noland decide to measure her actions by Swiss Law. Here is where the von Mehren due diligence strategy kicked in, and all I had to do was to fill in the blanks. It was as easy as that, and immensely satisfying. For some reason the metaphor of a smelly fish seemed useful to me at that moment. Those mosaics were a smelly fish with “Cyprus” written on its side. And there was only one way to get rid of the stink: call the Embassy of Cyprus. Which, of course, Peg Goldberg did not do. Why? Because she was not looking for the bad news. Or for the truth. She was only doing enough to rationalize her greed and avoid a roadblock. And I finished with a phrase that was visually powerful, and it stuck: “All the red flags are up, all the red lights are on, all the sirens are blaring.” And still, no phone call to the embassy.
My cross examination was predictable, and I had rehearsed well for it. What surprised me, though, was that the defense lawyer, Joe Emerson, wasn’t better prepared. He presented me with the van Rijn publication with Saint Peter on the cover and said something to the effect that “is it not true that” you bought this icon from that “shady” (my word) Michel van Rijn? No, I said, we bought it from a Dutch businessman named Stoop and, in any event, we exercised appropriate due diligence by contacting, among others, officials in Greece who enthusiastically endorsed the purchase. Does the Walters have any Cypriot art? No, I said, almost none. (He could have checked that.) Do you yourself collect art? No, I said, just Boston Terrier paraphernalia. (Here I stopped to spell that word, and to explain what I meant: little ceramic Boston Terriers.) Are you being paid to testify? Yes, I am. Pretty much that was it.
It was a beautiful Friday afternoon and the plaintiff’s case was over. Monday and Tuesday of next week were for the defense, and they were, for Peg Goldberg, a disaster. During what became known among the Kanakaria insiders as Tom Kline’s “cross of Goldberg,” it became fully apparent through Peg’s own words that she had been on the inside of the van Rijn-Fitzgerald conspiracy.
The story as presented by Michel van Rjin to Peg initially was that Dikmen was very sick and had to sell. Over the course of the trial, though, this “dealer opportunism” scenario was gradually supplanted by a “tail-end-Charlie” scenario. The deal was driven not by Aydin Dikmen’s health, which turned out to be fine, but by the conspiratorial ingenuity of van Rijn and Fitzgerald feeding on the greed of a compliant Peg Goldberg. The basic notion is that there will always be someone down the line who is naive enough and greedy enough to buy stolen merchandise that is so hot it cannot be sold to anyone else. That last person is the tail-end-Charlie, that unlucky last one, named after the all-but-doomed tail gunner on the highly vulnerable US bombers in World War II.
Gradually, clarity had emerged. Michel van Rijn and Bob Fitzgerald hatched this scheme together, and it began with a simple bait and switch. The bait was the Modigliani that they both knew was a fake. The point was to get Peg Goldberg to Amsterdam with cash backing from Nick Frenzel. As planned, that deal fell through and Peg was deeply disappointed and susceptible to a rebound opportunity. Fitzgerald’s lawyer, Robert Faulk, who drew up the sale agreement, had paid a visit to Aydin Dikmen in Munich about a possible impending deal before Peg arrived in Amsterdam.
Everything gels when Peg falls in love with the mosaics. Discretion is maintained about the real sale price, with van Rijn and Fitzgerald pocketing hundreds of thousands of dollars just for snaring Goldberg and making the Dikmen connection. The ultimate tail-end-Charlie is Nick Frenzel, who eventually has to make good on Peg’s loss out of his own pocket. As he told The Wall Street Journal at the time, “it did cause some embarrassment.”
Peg’s role was that of a compliant, self-interested pigeon. A critical distinction was drawn out by Kline’s questioning. Peg was in the business of determining whether the Kanakaria mosaics had been reported stolen, not whether in fact they were stolen. And since she was aware of the Dumbarton Oaks publication at the point of sale (referencing it to Frenzel), it was obvious that she had to have known from the beginning that the mosaics were stolen. Pretty much end of story.
But on that Friday we were all giddy. We knew we had won. We believed we had done something really good and right. And for the moment, I was the star. I did interviews with Honan and Mannheimer, and then the entire Kanakaria mosaics recovery team was hosted at a Greek restaurant just south of downtown Indianapolis, by its owners. I don’t remember what we ate but I have vivid memories of vast amounts of retsina and ouzo. And I think we broke some plates in the fireplace. It was that kind of night. And it was a high point of my life. The next afternoon, Saturday, June 3rd, much hungover, I watched events unfold in Tiananmen Square on television at the airport as I waited for my flight back to Baltimore.
IT WAS AN ELEGANT TWIST that Judge Noland’s decision was announced on August 3rd while I was at another Vikan family reunion in northern Minnesota, in this case at a log-cabin style lodge on the north shore of Lake Bemidji. June 1983 redux—sort of. This was the most memorable among our reunions for the arrival of that news, but also for the fact th
at it was then that my mother finally told the family what each of us who cared already knew, namely that her father, our grandfather or great-grandfather, E. C. Johnson, had “blown his brains out” with a pistol in 1923 when she was 13. I remember being troubled that it took her so long to tell us (she was then almost 80), but was mostly upset that no one paid much attention. It was windy, we were outside, kids were running around, and we were grilling hamburgers.
On that unusually hot day, a Thursday, Elana and I had driven my father’s burgundy Lincoln Town Car the forty-five miles back to Fosston. And then we took a right and went north twenty miles or so to the tinier town of Clearbrook, where a nearly-blind farmer’s widow living in a trailer was making quilts. After bargaining poor Mrs. Opus down to $300, we bought two. Elana and I stopped by the Vikan house in Fosston before heading back on Highway 2 for Bemidji and I noticed this pink telephone message in the kitchen. It was left, I assumed, by Mrs. Busse, who cleaned for my mother every now and then. (She was the one whose Ojibwa cousin had been scalped in a post-barroom two-person brawl in the back seat of a car twenty-five years earlier. I had vivid memories because I went with my father on a snowy Saturday in December to a remote gravel road on the White Earth Indian Reservation when he took photographs for the coroner.)
Well, the note was short and sweet and, at least for me, meant something very important: “Cypress Won, check out The New York Times tomorrow. Tom Kline.” I called him back. We had nailed it, and one of Noland’s clerks said the Judge relied heavily on my testimony. We’ll be on the front page of the Times, tomorrow. Wow, I thought, how sweet.
Back with the family in Bemidji, no one seemed to care much about my news, and of course there was no Times to be found in that neck of the woods, though I tried—no Times until I got to the Minneapolis airport. And there we were on page one; there I was on page one. Judge Noland went 100 percent our way, and Bill Honan quoted a short passage of his eighty-six-page decision near the end of his article, and that phrase of mine about red flags and red lights and sirens was the clincher. Yes, I had done a good thing. But I soon found I couldn’t put it down.
