Electroboy

by Andy Behrman

  I sit in the courtroom waiting for the trial to begin, searching around the room, trying to avoid making eye contact with anyone, especially anyone from the prosecution team, being careful not to look at the jury too much. I realize for the first time that the government is extremely serious about prosecuting me. They’ve flown in witnesses from Los Angeles, Paris, and Tokyo to testify against me, including former friends from Kostabi World. They’ve turned what my attorney feels should be a civil case into a criminal one. And the only reason I can think of that they’ve made such a big deal about prosecuting me is that the climate in the art market is just peaking and they know this will get a lot of media attention. There are reporters from newspapers and magazines ready with their pads to take notes. I nervously doodle the words federal case on my legal pad. I realize that I am not on a field trip. But it all seems so unreal—this courtroom scene has the color and clarity of a made-for-TV movie.

  The prosecutor, Jonathan Polkes, looks like he is in his late twenties. Probably a classmate of some of my Wesleyan friends. Short and squishy-looking, with glasses. His mother comes with a friend to watch her son at the trial. They sit up close. This makes me want to puke. The two attorneys are huddled in a conference with the judge when Stuart says he wants to introduce Kostabi’s arrest record, for his fight with Morton Downey, Jr. “On what theory?” asks Judge Nickerson. “Mr. Kostabi, who admittedly is someone who believes that generating bad publicity is good for his business—I believe that is very relevant in his motive to what he has done in pursuing this case against Mr. Behrman, including giving testimony in this case,” says Stuart. The judge does not allow this as evidence.

  Polkes attempts to present a simple case of fraud, in which a defendant who has exploited his position at Kostabi World takes tremendous advantage of dealers and galleries to sell unauthorized paintings created by a Kostabi World employee. He details the counterfeiting process fairly well and explains the logistics of the deal making and negotiating: “You’re going to learn that Andy Behrman didn’t only confess to his friends Lis and Jessica what he was doing on one occasion, he had a big mouth and couldn’t stop telling his friends Lis and Jessica what a great thing he stumbled onto. He told them, virtually every day for six months, every detail of the scheme as I have explained it to you, and that’s how we know all about what happened. He’s going to tell you how he thought it was such a brilliant idea that he and Brandt would create the fakes, which is his word for them, forging signatures on them to Kostabi customers, and how much money they were making. You’re going to hear that from the mouths of his own two friends, Lis and Jessica, who will testify for you during the course of the trial.” This doesn’t feel like a good start for us. It’s Stuart’s turn to do some damage control. He stands up, walks around the defense table, and looks at the jury. “The evidence will show you that the engine that is driving this case is Mark Kostabi, vindictive allegations, and, I submit, the evidence will show to you, totally unjustified allegations of Mark Kostabi are what brought the case here. Mr. Polkes indicated that he [Kostabi] is going to be portrayed as some sort of victim. I submit, ladies and gentlemen, the evidence will show you he’s no victim at all. One thing that I agree with the prosecutor about—there was fraud going on in this case. Yes, lots of fraud, and you’ll see where the fraud was. The fraud was in the house of the man named Mark Kostabi, who I guess also has the name of Kalev Mark Kostabi, but he usually calls himself Mark Kostabi. That’s the fraud. You will hear similar things about Mark Kostabi that the prosecutor didn’t mention to you in his opening statement. That Mark Kostabi is a man who describes himself as a con artist. He is a person who says that only suckers buy his paintings and that you have to be a total fool to buy one of his paintings. That’s the victim of this supposed fraud. In fact, ladies and gentlemen, the evidence will show you that Mark Kostabi is not an artist at all. Of all the frauds and cons going on here, the biggest one of all is this notion that the prosecutor made that there is such a thing as a fake Kostabi. To use a big word that I hate to use in courtrooms, that’s an oxymoron. It’s a contradiction in terms. It’s silly. There is no such thing as a fake Kostabi. Why, ladies and gentlemen? The evidence will show you how Kostabi works. He doesn’t paint anything. He doesn’t think anything up. He hires people who think up ideas, make paintings, and he makes lots of money from them. There are no fakes, ladies and gentlemen. The evidence will show you that the paintings that are at issue in this case are no different from all the other Mark Kostabi paintings that Mark Kostabi sold and made lots and lots of money from. You heard that right, ladies and gentlemen. He didn’t paint these. He didn’t think them up. They weren’t his ideas. He hired idea people who came up with ideas. He hired painters who painted them, and he made lots of money from that. In fact, ladies and gentlemen, the evidence will show you—the prosecutor didn’t mention this—that Mr. Kostabi even acknowledged in writing that the paintings that are at issue in this case were Kostabi paintings. That’s right, ladies and gentlemen. He acknowledged in writing, he wrote to people, that these were his paintings. The evidence is going to show you, ladies and gentlemen, that Andy Behrman is not guilty of any fraud. The only fraud that’s going on here is Mr. Kostabi.”

  The first witness called by the government is Mitsuna Kawamura, whose testimony has been videotaped, since she could not attend the trial. She is the representative of Art Collection House in Tokyo, from which the government has recovered thirty-four unauthorized paintings, which have been entered as government evidence. She was my contact in Tokyo, and all of my dealing with Art Collection House went through her. She appears frightened to be testifying. The prosecutor quickly leads her through explaining that the gallery issued directly to me, for counterfeit work, two checks totaling $21,000, and an undisclosed amount of cash. Stuart, who is also present at the videotaping, makes a point that more than $200,000 was wired directly to Kostabi World, for legitimate work I sold to them.

  Kostabi is the next witness. As he approaches the stand and sits in his seat, there is some whispering in the audience and I take a deep breath. I’m frightened to be in the same room as him and angry that he’s taken the case this far. I keep my eyes focused on the prosecutor and just listen to Kostabi’s voice. Polkes asks him about the counterfeit paintings in Tokyo and how he handled the situation with Art Collection House, which was afraid that clients would find out about forgeries in Japan and the reputation of the company would be destroyed. When discovering the “unauthorized” paintings, he jointly came up with the idea of sending handwritten letters with Art Collection House to buyers telling them that their painting was one of his favorite images and that he wanted to publish it in an upcoming book, but that he wanted to rework it to make it even better. “What did you do to them specifically?” asks Polkes. “I changed the signatures on the front. I changed the signatures on the back. In some cases I made drawings on the back. And I changed the title,” answered Kostabi. There is some snickering in the courtroom. He is extremely agitated. I know he’s going to have difficulty handling the cross-examination. Stuart starts by making reference to a Village Voice advertisement in which Mark refers to himself as the world’s greatest con artist but also as somebody selling original forgeries. This puts Kostabi on edge. “Did you ever get someone to sign, a stand-in to sign?” asks Judge Nickerson. “No. I never hired anyone from this ad to fill this job description,” says Kostabi. “Could you read the ad for the jury, Mr. Kostabi?” asks Stuart. “It says: ‘Stand-in for Mark Kostabi, must sign paintings, autographs and sketches. Must give interviews and make public appearances. Must be willing to change hair color monthly. $3.75 an hour plus benefits. Hours vary, age range 18–21 preferred, M or F’—meaning male or female—‘to Mark Kostabi, Inc., 361 West 36th Street, 3A, New York City 10018, attention personnel.’ ” Interestingly, on cross-examination Mark is not entirely certain of his signature on each painting. “If that’s a Kostabi signature, it’s a very poor one,” he says. “It doesn’t look like a
good Kostabi.” There is some laughter in the courtroom. Now Stuart questions Mark about my role at Kostabi World. “He was a very effective salesperson, was he not?” Kostabi answers, “That’s a matter of opinion. I would have to say—he generated sales, but no, I wouldn’t call him effective, no.” “Isn’t it a fact that he generated certainly hundreds of thousands of dollars in sales, if not millions of dollars in sales?” asks Stuart. “He’s a criminal. I—” says Kostabi. Judge Nickerson gets angry and raises his voice: “No. Look, don’t. Please.” “Okay. I’m sorry,” says Kostabi. “Listen to me,” Judge Nickerson says. “Don’t volunteer things like that. Did he, all you have been asked now is, did he generate hundreds of thousands of dollars, maybe millions of dollars’ worth of business for you, for Kostabi World?” “Yes,” answers Kostabi. Stuart grills Mark on cash payments that I picked up for him in Japan, but Mark denies that this ever occurred. In fact, he denies all cash payments from dealers. He seems confused. He doesn’t see what Stuart is driving at. The point is clear. Any cash that I did pick up I often turned over to him. It’s quite possible the cash payments from Art Collection House were also paid to him. “Now you stated that the—what you have described regarding these paintings had an effect on your reputation as an artist? I believe you said it had damaged your reputation?” asks Stuart. “Yes,” responds Kostabi. “Isn’t it a fact, sir, that your reputation is as a con artist, not as an artist?” he asks. “My reputation among my clients was damaged. I—I was—I wasn’t referring to the general public who watches shows like Lifestyles of the Rich and Famous,” says Kostabi.

  December 7, 1993. Brooklyn.

  Jessica Doyle, Mark’s former assistant, and now a costume designer living in Paris, is flown to New York by the government to testify. She testifies very reluctantly. Her demeanor toward the prosecutor is bordering on rude—she gives him one-word answers and barely acknowledges him. She does tell him that I told her that Annike and I were producing unauthorized paintings and that I was selling them in Japan and also in Germany. “What did he say to you about his state of mind about this, about how he felt about what he was doing?” asks Polkes. “He told me he was nervous. He told me that he knew that it was a crazy and silly thing,” she tells him. She describes my personality as very highly strung. “Did you ever personally witness Andy Behrman sign any of the fakes in your presence?” asks Polkes. “No,” she responds. But she also supplies important information about people who signed Kostabi’s name on canvases. She goes on to testify that I had Mark sign blank certificates of authenticity, which I supplied customers with for my unauthorized paintings. She also admits lying to the police about knowing anything about the case when first questioned, “ ’cause I was being loyal to my friend Andy.” Then Stuart asks her if she was ever at Kostabi World with me and Hiromi Nakano, the photographer, when I was writing the name Kostabi on a painting. “Not to my recollection,” she answers.

  Lis Fields, a former idea person in the “think tank” and now an assistant to a film director, comes from Los Angeles to testify. She has the most difficult time on the stand—she’s unable to fight back tears while being grilled by the prosecution and explains that I had confided in her about my counterfeiting activities with Annike, after she begged me not to tell her anything about what I was doing. She has received an immunity deal to testify, having lied to the government previously about knowing anything about the case. She tells the prosecutor that I had “a mixture of fear and excitement” about the scheme. Curiously, she has kept two different sets of notes of her version of the story—one a cover story that includes some untruths and omissions that would make it look as though she didn’t know anything about the case, the other an entirely truthful rendering of what happened and what she knew. In the first set of notes she actually wrote, “I had no idea he was doing anything wrong.” She testifies that my behavior was manic and that I was taking medication. For some reason, maybe because I hate to see her go through such a stressful situation, I thank her when she passes by the defense table.

  December 8, 1993. Brooklyn.

  Today is a half day in court because of Hanukkah. Hiromi Nakano, the Kostabi World photographer, testifies that the slides of the counterfeit paintings were not taken by her, because she doesn’t use a white brick wall as a background. Annike overlooked this detail. She goes on to tell the jury that she saw me late one evening, in a panic with Jessica, signing Kostabi’s name to the front of a canvas. “What did you see Andy Behrman doing?” asks Polkes. “He was signing paintings,” she answers. “Signing names on paintings?” he repeats. “Kostabi names on paintings,” she says. This seems like the most devastating evidence to be introduced by the prosecution. Fortunately, the prosecution’s own witness, Jessica, has no memory of the incident.

  The prosecution calls Mark Zimmerman to the witness stand. Formerly a Kostabi groupie, “Maz” is now the operations manager of Kostabi World and says he does “basically everything.” He describes the studio’s perfectly organized system of record keeping. But Stuart questions him about signing Mark’s name on a check, and he admits to having done it before. This is the first bit of hard evidence introduced that points to Kostabi allowing an employee to sign his name.

  Hiroshi Yokohama, the owner of Hama Gallery in Tokyo, testifies about our meeting at which I sold him four paintings, which I shipped to him when I returned to New York. He also testifies that I gave him instructions to wire the money into an account at Marine Midland Bank, which happens to be my personal account. The prosecutor asks him if he ever meets Kostabi. Yokohama says yes, but that he left and came back again and asked him to take the frames off the paintings. “They said that something is strange,” he said. “So Mr. Kostabi said he wanted to take these back to the United States, and he rolled them up.” In an effort to suggest to the court that it would be okay for me to accept cash for the sale of paintings from my own collection, Stuart asks Yokohama if he is aware that I have my own personal collection of Kostabis. Unfortunately, Yokohama has no knowledge.

  December 9, 1993. Brooklyn.

  Stuart calls Kostabi’s accountant, Mel Kaplan, and questions him about the purchase of Kostabi’s $1 million apartment at the CitySpire Building. Kostabi has bartered artwork to satisfy part of the mortgage, and it has not been recorded. Stuart also finds out from Kaplan that Kostabi drew no salary in 1991, which implies that the proceeds of unreported cash sales went to him.

  Outside the courtroom, during the lunch break, I see my mother talking with a woman in her midsixties. The woman inquires if this is my first trial. Yes. She assures my mother that I’ll do just fine. My mother responds by telling her that I am the defendant and not the attorney. They both start laughing.

  Ron English, a former Kostabi painter, testifies that Kostabi offered him a couple of certificates of authenticity so he could make his own Kostabis. English testifies that he never took him up on his offer.

  It’s time for the prosecutor’s summation. He shuffles up to the jury box. “Now, let’s say I find a basketball in a closet. If I went to sell that basketball, I could probably get five bucks for it. Let’s say I take the same basketball and sign Jonathan Polkes on it. Probably then I’d get a dollar, but, of course if I put Michael Jordan’s name, then it’s magic. Now let’s suppose I take the basketball and I take a Magic Marker and I sign Michael Jordan’s name and I try to sell it to you for a couple of thousand bucks, I’d be cheating you. That’s exactly what this case is about. Mark Kostabi has the same ability; sign something which is a piece of canvas and turn it into something worth a lot of money. The defendant gets nervous again when Kostabi goes to Japan,” Polkes says. “And what’s Behrman’s reaction? After all I did for him, I can’t believe he fired me,” he says. “That’s the twisted mind. This guy has been cheating Kostabi, and his only reaction, all I did for him.”

  A woman in dark Muslim garb appears in the back of the courtroom while the prosecutor is making his closing arguments. She sits right behind Lauren and Lucy, who
are both frightened by her. At first I’m curious what her connection to the case might be until I realize that it’s Annike, who has disguised herself to come see the last day of the trial. She has borrowed the outfit from a mosque in Jersey City. At first I’m shocked, imagining the worst—that she will be discovered as the co-conspirator and arrested on the spot. But then I realize the ridiculousness of this entire scenario. I chuckle and smile at her.