One of the key issues in the Knoedler fakes trial—whether buyers have the obligation to perform due diligence—was brought to the fore when Domenico De Sole took the stand Wednesday afternoon to tell the jury about his and his wife’s purchase of a fake Mark Rothko from Knoedler in 2004 for $8.3m.
Testifying with the fake Rothko on an easel to his left, De Sole described how he and his wife had gone to the Knoedler Gallery on their friends’ recommendations, with the aim of buying a work by Sean Scully, whom they understood Knoedler represented. At the gallery, De Sole said, Ann Freedman told them she could find them a work but then uncovered two canvases in her office—the fake Rothko they ultimately purchased and a work purportedly by Jackson Pollock.
Freedman said they came from the same anonymous collector with homes in Switzerland and Mexico, and had been purchased with the assistance of the known art-world figure David Herbert. “I went to Knoedler because it’s the best gallery in the United States and went to Freedman because she was top,” De Sole said when questions by his attorney Gregory Clarick about whether a painting’s provenance was important.
Before buying, De Sole insisted that Freedman put everything she told them in writing. “Did you trust Ann Freedman?” Clarick asked. “Absolutely,” De Sole answered. “Then why did you want it in writing?” “Because it’s a lot of money.”
De Sole stuck to his testimony on cross-examination by Knoedler’s lawyer Charles Schmerler, who asked whether the collector had performed any due diligence. “I went to the best gallery, Ann Freedman had an amazing reputation… I had no reason to believe I wasn’t being careful,” he said.
Earlier on Wednesday, Melissa de Medeiros gave testimony about her role as a Knoedler researcher and assistant to Freedman that was potentially damaging to the defendants. She said that despite her research in various archives, catalogues and “privately owned matter”, she had been unable to find a single document identifying any work Rosales had brought to Knoedler.
Medeiros also researched two alternative provenances behind the work bought by the De Soles. The differing histories were shown to the jury on two printouts from Knoedler’s art database: the one with an earlier date mentioned artist Alfonso Ossorio, the later one showed Ossorio’s name gone and David Herbert’s name added as advisor. The plaintiffs called this a red flag that the works Rosales brought to the gallery were fake.
Medeiros testified that her research into both stories made them “plausible”, but that she couldn’t recall specifically any reference to Ossorio advising a collector who lived in Switzerland and Mexico on purchasing abstract art, and that she had found no documents referring to Herbert doing so.
During Medeiros testimony, the jury was shown a letter dated 14 January 2008 in which Freedman requests an emergency meeting with the anonymous collector. “Please allow me to explain we are most apologetic that this situation, casting doubt and suspicion, specifically upon the works of Robert Motherwell, has forced us to ask Glafira Rosales to arrange this emergency meeting with you… Because we cannot be forthcoming with information [the Dedalus Foundation, which maintains the Robert Motherwell catalogue raisonné, has been] suggesting that we are selling and trading work that is counterfeit.” The meeting never occurred, since the client was a fiction.
On 20 January, Freedman pressed Rosales to reveal the owner’s name on the promise of confidentially, but this also never happened.
Finally, Medeiros testified about a 24 October 2008 memo she wrote recording a meeting between herself, Freedman and Per Jensen, who also worked at Knoedler: “Both Per and Ann asked Mrs Rosales to approach Mr X [the anonymous collector] and see again if there exists any tangible evidence related to these transactions.” [Italics in original.]
The plaintiffs’ attorney also showed the jury documents indicating that after Dedalus told Freedman in early 2008 that she was dealing in fakes, she continued to sell works from Rosales. For example, one document showed Rosales consigned a “Rothko” to Knoedler in February 2008, which Knoedler sold that April for $7.2m.
Meanwhile, on Tuesday, the jury heard testimony about doubts expressed to Freedman at the beginning of her relationship with Rosales. MoMA’s curator emeritus John Elderfield testified that he told Freedman in 1994 that the Richard Diebenkorns she was selling were “dubious”. Diebenkorn’s daughter, Gretchen Deibenkorn-Grant, testified that she too told Freedman in 1994 of her concerns about the works attributed to her father: “I said they don’t look right, there was no provenance.”