Turkey’s Quest for the Stargazer


Katie and Steve speak with veteran cultural property and art lawyer, Tom Kline, about his representation of Christie’s and Michael Steinhardt in litigation brought by Turkey to possess a millennia-old Anatolian marble statue (the Stargazer) owned by Steinhardt and sold by him through Christie’s. After a trial in the Southern District of New York, Turkey lost for the primary reason that they could not provide facts supporting their claim to ownership of the Stargazer, specifically that it was stolen from modern day Turkey after 1906.

Resources:

Tom Kline Biography

Plaintiff’s Proposed Findings of Fact and Applicable Law and Application of Law to Facts

Defendants Christie’s Inc.’s and Michael Steinhardt’s [Proposed] Post-Trial Findings of Fact and Conclusions of Law

Judge Nathan’s Opinion


Episode Transcription

Steve Schindler:  Hi, I’m Steve Schindler.

Katie Wilson-Milne:  I’m Katie Wilson-Milne.

Steve Schindler:  Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.

Steve Schindler:  Hi, Katie.

Katie Wilson-Milne:  Hi, Steve.

Steve Schindler:  So today we’re going to talk about an important case involving cultural property that was recently decided by a federal court in New York. The case involves the Guennol Stargazer, which for a small statute sounds incredibly romantic. But the stargazer’s official name is: Anatolian marble female idol of Kiliya type, and it was likely manufactured in the fifth millennium BCE in what is the Anatolian region of modern day Turkey.

So fast forward about 7,000 years. In 2017, the Stargazer was put up for auction at Christie’s by its owner, Michael Steinhardt, which then prompted Turkey to file a lawsuit to seek its return under a 1906 Ottoman Empire-era law. And after an eight-day trial on September 7th, 2021, the New York District Court issued its decision. And I’m not going to tell you what the decision was, but we’re going to turn to our guest.

Katie Wilson-Milne:  Not yet.

Steve Schindler:  Not yet. We’re going to get there. It’s a little bit of a teaser. So to tell us about this decision and the fascinating history of the Stargazer is our guest, Tom Kline. Tom is a partner at Cultural Heritage Partners, which provides legal policy advocacy and business strategy services to clients in matters related to cultural property. We’ll post some more detailed information about Tom and his firm, but he advises clients in a wide variety of art, museum, and cultural heritage matters, including issues of ownership, theft, authenticity, breach of contract, insurance, and related disputes. He has represented governments, museums, churches, foundations, and families in recovering stolen art and cultural property. And he also represents American museums and collectors responding to claims. So welcome to the podcast, Tom.

Tom Kline:  Thank you, Steve, and good afternoon to you and to Katie.

Steve Schindler:  Well, tell us just a little bit about your firm, Tom, Cultural Heritage Properties, and what kind of work that you do.

Tom Kline:  Well, I’ve been doing cases like this for longer than I like to imagine, more than 30 years. I started with a case involving mosaics stolen from Cyprus. And I’ve continued to do, as you mentioned, Holocaust-related cases, other ownership disputes, and other kinds of disputes. I’ve been with Cultural Heritage Partners now for a few years. It’s a small firm that focuses on issues related to art, cultural objects, and museums and also the preservation of historic sites. In other words, a wide variety of issues related to cultural heritage. This sculpture, Kiliya-type idol, it’s named from the location where the first one was found in Kiliya in Anatolia, which is now Turkey. And no one really knows 7,000, 6,000 years ago exactly what its purpose was.

Katie Wilson-Milne:  We should add, Tom, that we had the pleasure of working with you a little bit on this case. We represented one of the key third party witnesses that seems like many, many years ago now, which is an indication of how long this case went on. And maybe you’ll kind of talk about that during the show today, just how many parts of litigation that stacked on top of each other to make this case and get to this decision. But we did want to just share that we were involved.

Tom Kline:  This case did have a lot of different lifetimes. At one point we were interrupted from taking the depositions of Turkish witnesses, because they couldn’t get visas when there was a spat between the US and Turkey. So we had to schedule around that. We were set for trial a year ago, and then COVID of course disrupted that. So we tried it by virtual means this past April, which worked very smoothly, but there’s been a lot of bouncing around and to-ing, and fro-ing.

Steve Schindler:  Yeah, let’s start with, first of all, who were the parties in this case, Tom?

Tom Kline:  Well, the plaintiff is the Republic of Turkey, which claimed to be the owner of this object, of Kiliya-type idol. And the defendant at first was Christie’s, which had tried to sell the object at auction in 2017. Michael Steinhardt, the owner was originally anonymous at the time of sale, but he was proud to identify himself. He became the primary defendant, and Turkey also named the idol itself as a defendant, making this what lawyers call an in rem case.

Steve Schindler:  What does that mean? How is an object a defendant in a lawsuit? Maybe you can explain that?

Tom Kline:  I wish I could. What it simply means is that the court is going to determine rights to the object. So it doesn’t particularly add anything in this case, in terms of the ownership dispute, but it makes clear that the object is before the court and the court is going to decide rights, at least as between the parties that are in front of the court.

Steve Schindler:  Right, and your firm represented one of the parties, right? Or two of the parties.

Tom Kline:  We represented the two defendants, Christie’s and Michael Steinhardt.

Katie Wilson-Milne:  So how did it come to be that the Turkish government sued your two clients? You indicated to us, this object is ancient, so what happened in the last few years?

Tom Kline:  The backstory is that no one knows what happened to this object between its creation 6,000 or 7,000 years ago and when it appeared in New York in the hands of a dealer in 1961. The dealer offered it for sale to a couple, Alastair and Edith Martin.

Katie Wilson-Milne:  And this object— sorry, this object, Tom— it’s a stone sculpture?

Tom Kline:  It’s a marble sculpture that was probably made with stone tools back in the stone age. It’s very impressive. It’s a little figurine, and it has an idealized round head tilted back slightly with the eyes up, which is why it’s called a Stargazer. Has very narrow legs. There’s only about 13 or 14 of these fully assembled or maintained that are known. The feet are always broken. They’re very delicate. It wasn’t meant to stand. It was probably meant to lie down. We think maybe it was buried with the dead, but people don’t really know what its use was. It has fin like arms, very thin neck, neck is almost always broken, which may have been part of the ritual. But you can think of it as some kind of a human or deity representation— we don’t really know— in marble. Very shiny, and interestingly, there’s only one workshop known as Kulaksizlar, where these were made in Turkey. And no intact statutes were found there, only fragments, so the belief is that it was intended for travel. And that it was traded to other places. They’ve been found throughout Anatolia, and we believe a few other places.

Katie Wilson-Milne:  And Anatolia is modern day Turkey?

Tom Kline:  Correct, yeah. So there’s no dispute between the parties about where it was manufactured. The question is, as you were asking, what happened since then? And we don’t really know, so we can only draw inferences. The idol was at the Metropolitan Museum for a long time, several decades, from ’66 to ’93, when it came out that Michael Steinhardt bought it. He later exhibited it at the Met for a few years, but he decided to sell it.  And in 2017, Christie’s put it up for auction. And at that point, Turkey was goaded by a journalist that they should claim it, and they went ahead and made a claim, tried to negotiate a settlement, but it couldn’t be done. So they filed a temporary restraining order, and we all went into court a long time ago, before COVID, when we could actually go to court. And they filed suit, tried to get a temporary restraining order, but the judge said that Christie’s could go ahead and sell. Primarily, because I think Turkey was going in at the very last minute, and all the preparations had been made.

Katie Wilson-Milne:  So the trigger here was just this auction at Christie’s?

Tom Kline:  That’s right. That’s what started it.

Katie Wilson-Milne:  But it wasn’t like this work was hidden before that. It was— like you said, it was on display at the Met. There was no particular coming out of this object, right? Just happened to be up for auction?

Tom Kline:  Right. It was extremely well known. And that became one of the major issues in the case, as we’ll talk about. With all its time being exhibited at the Met, which is one of the premier institutions, not just in the United States, but in the world. And also it was published some 20 times, including two publications by the Turkish Ministry of Culture [and Tourism] itself. So it was a well-known object that had been well publicized.

Steve Schindler:   Right, and I think one of the things that our listeners are probably wondering is what is it that gives Turkey, modern day Turkey, the right to go into court in New York and seek to recover an object that has been in circulation for thousands of years?

Tom Kline:  Many people wonder about that too, because we don’t have a law like that in the United States. These laws exist in countries that have a long cultural history. Not that we don’t, with Native American objects, and we do have some laws pertaining to Native objects and objects found on federal land. But we don’t have a law like Turkey’s. This is a 1906 law, which was passed during the Ottoman period, which says that Turkey is the owner of any objects found in the ground. Sometimes they’re referred to, in fact, as found in the ground statutes. And they’ve been litigated only sparingly in the United States in cases involving Mexico, Peru, and Egypt.

Steve Schindler:  And these are called patrimony laws, right? These are different than some countries have export laws, where you have to get a license to export certain kinds of art and objects, particularly if it has some cultural importance. And France has a law like that, for example. But this is a law that essentially says that the Turkish government is exercising ownership over certain kinds of objects if they were found in Turkey and came out of the ground after 1906, right?

Tom Kline:  That’s what Turkey contends. And we challenged the law because it’s not consistently enforced in Turkey, but the judge held that it was in fact, a national patrimony law and it was valid and it did give Turkey an ownership right. So our listeners can just think of this as Turkey is the owner, just the way anybody else is the owner. They based their ownership claim on the statute, and the judge accepted that.

Katie Wilson-Milne:  But the difference is that, I can’t just say I’m the owner of some unrelated piece of property, right? Turkey is saying, we get to say what we’re the owner of because we’re a sovereign state. And we said at 1906, that we’re the owner of anything that comes out of the ground in Turkey. So nothing else matters. We’ve declared ourself the owner. And the court accepts that. These are laws we’re familiar with in other countries.

It was interesting in some of the papers, Tom, that this law was compared, let’s say to Egypt’s patrimony laws, which are well-known. I think Peru has very well-known patrimony— we can call them ownership statutes. I don’t know if you want to just mention briefly how Turkey’s law compares to these other examples, or if they all kind of have similar attributes.

Tom Kline:  Well, they all have the basic attribute that they declare that government to be the owner. The kinds of issues that courts look at is whether the law is universally enforced or whether it’s only enforced against people from other countries, which makes it look more like an export law. In this case, in Turkey’s law, embedded in the statute, Turkey is supposed to pay the finder for objects. I forget whether the statute says 50%, or that’s just the practice, but that struck us as more than a finder’s fee. That that was really a mixed message on the declaration of ownership. But that’s the sort of thing that courts look to. Was there a registry created at the time the law was passed so that objects that were grandfathered— in other words, that were in private hands before the law was passed— could be maintained in lawful private collections?

When Cyprus passed its national patrimony law, it created a registry and allowed collectors to register their collection. So those are the kinds of issues that we look at. How actively the law is being enforced, whether it’s being ignored generally, whether there’s a private trade within the country. There’s a lot of issues that are raised by national patrimony law, but the judge accepted that Turkey was doing good enough.

Katie Wilson-Milne:  And just how common are these laws? You mentioned a few countries and that the U S doesn’t have a national patrimony system.

Tom Kline:  From my experience, they’re pretty common in what we call source nations, or art rich nations like the Middle East and South America.

Steve Schindler:  So on some level, this seems like an easy case, right? So there’s an object, comes out of the ground after 1906, it belongs to Turkey. Before 1906, it’s free game for whoever happens to own it. So what’s the big deal? What was the litigation all about then?

Tom Kline:  Well, Turkey had no proof of when the object left its territory. As I said, we all accept that it was manufactured in Anatolia, probably in this place Kulaksizlar. But there was no evidence beyond that about this particular object. In other cases that we’ve seen in US courts, there have been photographs or witness testimony, something that ties the object both to the site and to the time when it was coming out of the ground. Here, Turkey had neither of those things, no photographs, no witness testimony. So it wanted the court to draw an inference that the object had been found in the ground in modern times after 1906. In fact, after the law was in effect. And it had no proof on either point and the judge was not willing to infer both of those points.

Steve Schindler:  Right, but I guess also you had no proof— or your clients had no proof that it came out of the ground before 1906. And I think you were also, I thought cleverly, arguing some inferences yourself based upon trade at the time. Maybe just walk us through a little bit about the history of the Stargazer and how you were able to use that in arguing that the object must have come out of modern day Turkey prior to 1906.

Tom Kline:  Well, both parties had expert witnesses. Our witness was Doctor Max Anderson, former museum director, was very active in the Association of Art Museum Directors.

Katie Wilson-Milne:  Also podcast guest I should add.

Tom Kline:  Oh, well, bravo to you for picking him up. He’s very well-spoken and very thoughtful. And he talked about how the trade routes at the time would have extended into the Aegean, and anyone who’s ever been to the area knows that you can see these Greek islands from the Turkish mainland. And it stands to reason that 8,000, 9,000 years ago, or 6,000 years ago, 4,000 years ago, people could have taken some kind of a canoe and gone over and seen what these islands were about. And they were settled and developed. And we took the position that the object could have been found in any of these places. Turkey took the opposite position, so there’s no evidence that it was found in any of these places. But Turkey did have the initial burden of proof to show that it was the owner, which includes showing where and when it came out of the ground. So they couldn’t carry their burden just based on supposition and inference.

Steve Schindler:  Yeah, let’s come back to the burden in a second, but I think you actually went one step further, or Dr. Anderson went one step further, I thought, and this seemed to be persuasive to the judge when he showed that— not so much that there was trade going from Anatolia to Greece, but that there was evidence, there were objects from ancient Greece that were found in what is Anatolia. And therefore, it showed trade. Even if it didn’t show conclusively that a Stargazer might have been manufactured in Anatolia then sent to Greece, it showed that there were objects from Greece coming into Anatolia. So therefore there was actual evidence of trade. I thought that was a very clever argument and it’s one that the judge seemed to take notice of.

Tom Kline:  I agree. That was very well said.

Katie Wilson-Milne:  Tom, I mean, obviously Turkey, the court found— the trial court found that Turkey had not met its burden here to show that it had an ownership interest and so had a possessory right to the object. But Turkey made a substantial case over a number of years and hundreds of pages of briefing and supporting documents to the contrary, and I’m just wondering if you could talk a little bit about their argument that they did meet that burden. I mean, what’s particularly interesting is that they admit, and it is just undisputed that their cases entirely circumstantial. I mean, as we know, there’s a gap, as you said, between thousands of years ago, when the presumed manufacture of this object occurred in Anatolia and 1961, when it surfaces in the Martins’ collection in the United States, and nothing is known about this particular Stargazer in that time. So it’s very difficult, but Turkey does try to fill in that gap in a number of different ways and the law does permit circumstantial evidence for certain types of claims, but that wasn’t enough here. So I think what’s interesting it’s like— would there have been enough circumstantial evidence, or would circumstantial evidence never work in a case like this? Which seems maybe unworkable if we’re dealing with cultural property that for the most part is thousands of years old.

Tom Kline:  What Turkey did was try to draw inferences from the facts that are known. Turkey tried to draw an inference from the fact that this object appeared for the first time— it was known to have appeared for the first time in 1961. And they argued and their expert Brody argued that that means it was probably found in the ground a few years before that, because looted objects go to market right away. Of course, that’s a little bit circular. Thinking that it’s a looted object, you have to prove it’s a looted object. But there are a lot of contrary examples that Dr. Brody was aware of, and he just didn’t take them into account. Lots of objects, like the Cyprus mosaics stolen from Cyprus in the ’70s, stayed in Munich for almost 10 years before they went into the market, to Indianapolis.

Other cases that we know about, objects are stored in the Freeport in Geneva for long periods of time, even though they’re not supposed to be. So it’s just not possible to draw an inference. And my point always is, suppose you say that it was found in Turkey, and you say it’s more likely than not that it was found after 1906, when you take those— put those two probabilities together you’re down to 25% chance that it’s both. So it seems like there needs to be some kind of an anchor. The judge was looking for something, some direct evidence, and Turkey just had none. I think the point of the case is that you’ve got to have some kind of evidence then maybe more convincing expert evidence would do. But maybe in some other circumstance, when you got back to Peru versus Johnson, where Peru had to admit that the objects came out of ancient Peru, but they might’ve come from Columbia or one of the other bordering countries, because they were Peruvian-type. Here, Anatolia is quite large, but this area of Western Anatolia is very close to the Greek islands, and there were trade routes at the time. So they didn’t have any anchor for their expert testimony.

Katie Wilson-Milne:  I thought what they— what Turkey argued was compelling, but it amounted to, “there’s reason to believe this object was taken out of the ground after 1906.” It wasn’t, “here’s evidence to show that this particular object was.” I think the issue was— not that they didn’t present compelling evidence that it might’ve been taken out of the ground after 1906. I think clearly that there is compelling evidence that that might’ve happened. It’s just, “that might’ve happened,” is not enough when you’re bringing a claim under, in New York, the replevin cause of action. But— which just means, “whoever now has it has to give it back to me, because I’m the rightful owner.” One thing, and I don’t—  there’s no answer to this—  is just how a country that has ownership statutes about objects that are thousands of years old could ever realistically meet that burden, there’s just going to be such a gap of information about how those objects originated. Not always, of course, like there’s evidence that ISIS or a terrorist group removed, in the modern day, cultural property. That’s much easier, potentially, to track. But anything that happened 100 years ago, I think this is just going to be a constant problem countries are going to have. There’s just not going to be a way to meet that burden. I don’t think that that burden is necessarily wrong. I mean, this is the party trying to take it from a good faith purchaser, but it strikes me that it just creates maybe an impossible situation for repatriation even in more worthy cases.

Tom Kline:  That’s well said, Katie. That’s where we find ourselves.

Steve Schindler:  I think it’s just interesting to kind of note in passing that Turkey’s statute that goes all the way back to 1906. Isn’t typical of some of the other statutes, which post-date the UNESCO Convention, or Egypt’s, I think, is 1983. So the burden of proving when something came out of the ground, if you take it all the way back to 1906, you’re increasing your burden, but you’re also giving yourself a lot more years of ownership potentially.

So let’s talk a little bit about the trial. Okay. It was an eight-day trial, and I gather it was a virtual trial, which is something that’s relatively new to all of us in COVID. Tell us just a little bit about how that— what that was like and the challenges that you faced.

Tom Kline:  There were a lot of challenges. There’s always a risk of a technical breakdown. And we had a few of those. We worked out of a trial house, and so we all got together and we were all— had our first vaccination shots, but we kept the windows open and were as careful as we could be. The other side, I think they were working from different locations, so they had some more communication problems than we did.

The judge issued an order, which anyone can find, setting out the protocol for how we were to function with the Zoom trial. We hired a vendor who was very good. They provided a person that was like an MC or a director who got us ready each time. We were ready to go, the two lawyers and then wouldn’t let the judge in until the parties were ready, which is just like, what happens in the courtroom. The clerk says, “are you guys ready or not?”

There was a waiting room like you’d have for a Zoom conference where the witnesses would be. The parties were able to participate in the Zoom trial, but not speak until one or another was called as a witness. The one thing that was less than satisfactory was there was a side channel for anyone who wanted to to call in, and there was no policing of mute buttons. So if somebody had their mute button off and somebody came in to fix the washing machine, people heard all that.

Steve Schindler:  Yeah, it’s interesting because we’ve done a couple of longish arbitrations, but of course those are private. You have the same sort of technical challenges, particularly if you have witnesses who are testifying from remote places where the internet is maybe not so great. We weren’t conducting a public trial, which I gather you obviously were, so that would mean that members of the public could presumably just show up.

Tom Kline:  Yes. It’s always important to the court to allow members of the public to participate even with higher security measures of courts and with COVID. So there was this side channel that was available. The people that I know that tried, it found it, as I say, less than satisfactory. But when you’re doing, a trial by Zoom it’s a lot like a conference. You can share your screen and we had technical assistance. We had a paralegal. If we wanted a document, the lawyer that was conducting an examination would give the number, the document would be flashed on the screen, and then you can highlight some text and enlarge that. So it was in some ways easier than a trial. So once it got started and the initial uncertainty and unfamiliarity was gotten over, it went very, very smoothly.

There was one day we lost half a day for some technical breakdowns. And there was an incident with the side channel discussion. A discussion that was supposed to be confidential ended up on the record, because the mute button wasn’t hit. And so it’s in there on the transcript. But generally speaking, it went very smoothly. And in fact, it’s— I mean, right now I’m looking at the screen with the two of you, and add the judge and we could be having a hearing on your witness.

Katie Wilson-Milne:  It is so funny that we used to fly all over the country, right, to do depositions. Not to mention trials, if it came to that. And now we realize how we all have been doing it from home, and it’s been perfectly fine. It’s kind of amazing. So, Tom, can we back up a little bit? I want to talk about the specific claims that came to trial, and then maybe you could also remind us and let our listeners know— there were more claims that were originally part of the case.

Tom Kline:  Well, Steinhardt had made a counterclaim for tortious interference with contract, and that was dismissed on summary judgment and didn’t go to trial. We had put up a statute of limitations defense. In New York, the statute of limitations is three years from demand and refusal. But the case that confirmed that the demand and refusal rule also said you can’t delay making a known claim. So we made a defense saying that Turkey had delayed making a known claim, and the judge held that that relates only to latches. So that wasn’t something that was challenged or went to trial ruling on the statute of limitations. So that’s left for another day and another case. The main claims that went to trial were Turkey’s claim of replevin, which is to get back moveable objects, and conversion, which is that the defendant is interfering with the objects. Those two claims went to trial. And the case, I guess—  the trial was: number one, could they prove ownership to make those claims work? Which the judge said, no, they hadn’t proven ownership for the reasons we were talking about before. And then our defense, which had been prominent in the case from the very beginning, was latches. Even though the judge ruled against us on statute of limitations, she left open the defense of latches. Latches is a legal doctrine that says somebody delayed to the prejudice of the holder.

So we asserted that Turkey had delayed unreasonably, because they knew about this object, or should have known about it, for many decades with its history of exhibition at the Metropolitan Museum and its history of publication. And that Steinhardt was prejudiced. First of all, he wouldn’t have bought it if Turkey had made its claim before 1993. And secondly, all the key witnesses were dead. The dealer that sold the Kiliya-type idol in ’61 is not around. His files can’t be found. And Alastair And Edith Martin died. So no one could say whether he had some basis for claiming ownership, or whether he had bought it from a smuggler.

Katie Wilson-Milne:  And I think it’s worth spending some time on latches, because this is your defense, but it is a substantial part, maybe even reads more important in the court’s decision than Turkey’s failure to prove its ownership claim. I think importantly, even if Turkey might have been able to prove its ownership claim, you still could have won on the latches defense. So these are independent ways in which Christie’s and Steinhardt won, at least at the trial level.

And so to prove lashes, like you said, you show Turkey was aware of these claims at an earlier date, that it delayed in taking action and there was no good excuse for it, and that the counterparties in the case were prejudiced by that result. And that is often— that that third prong is often where latches is the most interesting and where the meat of the legal arguments lie, because the knowledge of the claim or whether there was a delay, that’s usually— it is what it is. You can either find some evidence for that, or you can’t. But the prejudicial aspect of it for the parties goes back to the root of so many things in our legal system: the justification for statutes of repose and statutes of limitations, this idea that you have to be able to get evidence to defend yourself, and if your counterparty has made it impossible for you to access the relevant evidence, they get dinged for that. And so I think lashes is clearly part of this limitation in American law that we just don’t let claims exist forever. And although the latches is in the equitable side of the law versus the— let’s say legal side of the law, like statute of limitations, it’s the same thing. And the court spends a lot of time in this case, talking about the prejudice, which is pretty profound. And again, I don’t know how you get around this in the case of cultural property, because so much of the information is going to be ancient. So many of the people who were involved are going to be dead necessarily. But in this case, one of the things that clearly the court found compelling, Tom, that you raised for your clients was the number of articles, publications, exhibits, displays, mentions of this very particular object that occurred from the 1960s, including in Turkey, in the 1980s and 1990s. And I thought that was very compelling as a reader and clearly to the court that in the 1990s, which is not that long ago, but still a lot of the people— the Martins— were alive and could have given more information.

There were articles published in Turkey talking about this object. You know, it wasn’t like, it was only in the United States in some obscure academic publication. There was information circulating in Turkey and in a variety of languages. So I don’t know if you want to add anything to that. But I do think the prejudice is real and important. And you have such a number of key players. You mentioned, the dealer, the original dealer that sold to the Martins, J.J. Klejman, the Martins, and I think there were other witnesses that are no longer available, including in Turkey, right?

Tom Kline:  Yeah, that’s a terrific explanation of it. Latches sounds like a highly technical legal principle, but it’s featured more and more in art recovery kinds of cases, particularly Holocaust cases, as well as cultural property cases. And it’s dare, I say, even more complex and richer than one can state with the normal statement of delay and prejudice. For example, Turkey’s— I don’t want to get into litigation strategy, but Turkey claimed that Steinhardt had unclean hands and therefore could not assert the latches defense. And they filed a motion to preclude him using the latches defense. And the judge said he can’t have unclean hands because you, Turkey, admitted that he was a good faith purchaser. That’s how you got the invocation of the statute of limitations. Now that I’ve stepped on it I may as well explain it. The statute of limitations, the three years that I just described runs against a good faith purchaser. Against the thief, the statute of limitations runs from the time of the theft, because the thief is understood to be in wrongful possession.

Steve Schindler:  It’s one of the strange things about New York statute of limitations for replevin. It’s endlessly fascinating,

Tom Kline:  Right. So there might be ways to mitigate that with waiver or estoppel or something. But as a general rule, if you want the three-year statute, you have to admit that the other side is a good faith purchaser, which would make sense to litigate the two issues at the same time so you can choose your poison. But Turkey consented he was a good faith purchaser, and then tried to prove that he was— had unclean hands. You might be able to parse it one way or another, but you’re basically saying, was he good faith or bad faith? There’s no gray area in between. I think that loss of that issue was very significant to the latches issue.

Steve Schindler:  Yeah, it struck me too that, I mean, the judge went even a little further, I think. In her discussion of the latches issue, she focused on the fact that Mr. Steinhardt purchased the work— I think it was in 1993. And by that point, it had been on public display for many years. And so he in good faith, I guess, paid a lot of money at the time for this work. And had they brought the claim prior to that, he never would have done that.

Or had asserted a claim. I think— it also just strikes me that, when I read the decision again, that if you read the two parts, I mean, it is a very sort of lawyer-type decision. There’s— the first is whether or not Turkey met its burden of proof, which is a sort of lawyerly technical kind of term. And the second part of it is latches, which also seems very obscure, but just reading it without the sort of legal jargon, it seems like the first part of the case, the judge is saying there is a kind of technical aspect to it. You missed your burden of proof, right? But the second part of it, I think the judge seemed to go out of her way to say, but you know what? This is fair. It’s not just that you didn’t meet a burden of proof, that if you look at the totality of the circumstances, this is the right decision because of what you didn’t do. And I think that’s what even a lay reader would come away from reading the decision

Katie Wilson-Milne:  That may have also been with an appeal in mind. I think an appeal is expected given the parties here. And, well, Tom, you can speak to that, but that’s my guess. And I think by presenting the amount of evidence that both the parties presented for latches, which— I’d be curious, Tom, if that— you think that exceeds the amount of evidence and discovery that you got on the ownership point. Because it just seems like the work that was done for the latches argument, both by Turkey and by your clients, was intense discovery. And the court cites to a lot of that. So she’s creating a record clearly of that fairness, which I read the same way as Steve.

Tom Kline:  Well, Turkey has appealed, and we’ll see what grounds they are going to assert. They have two issues to have the court of appeals reverse, and each issue has its technical side and its factual side. And since we work to get every fact in the opinion that’s there, it looks like a lot of facts to us, but I think I have to agree with you, Steve, that she really went to town on the facts concerning latches to show this is what happened. Turkey argued that even a good faith purchaser has to be diligent. And she disagreed with that, because he’s not a dealer, he’s an ordinary good faith purchaser. But she went beyond that and said, “but he was diligent, and I find him credible,” and talked about the various things that he had done contacting experts at the Met. But I think before we went on the record here, Katie and I were talking inferences. And I think when Steinhardt purchased this object in 1993, he knew it had been on display at the Metropolitan Museum for 25 years. And he knew about publications and he talked to experts, but Turkey would say, “and he knew it had no provenance before 1961.” So what inferences can you draw from those facts?

Katie Wilson-Milne:  That comes back to the burden of proof. I mean, your clients had the benefit of, I think, making a lot of inferences here, because all you had to do was bring some doubt to the ownership claim. Whereas an inference is a lot less meaningful if you bear a burden of factual proof. And the court is going to be inclined to not accept the kind of circumstantial evidence that could probably be offered in cases like this. So it’s not equal. Turkey bringing inferences and you bringing inferences— it’s not as powerful for them. They can’t as easily meet a burden of proving ownership, especially when that relates to facts prior to 1906.

Steve Schindler:  Well, Judge Nathan was very clear, both during the trial and in the opinion, about facts and inferences. And she knows one from the other, and she allowed some things into evidence to see what inferences could logically be brought from them, such as an article about— written by Thomas Hoving, who’s long dead, that the other side was relying on.

Katie Wilson-Milne:  Can we give that example? That’s a good one. So you can say who Hoving was. And he was writing about the reputation of the original dealer, right? That 1961 dealer, J.J. Klejman.

Tom Kline:  Yeah, Hoving is kind of a celebrity in New York. He was director of Parks and Recreation and opened up the parks to music and all sorts of things that we now take for granted. And he was director of the Met, and he was very colorful and wrote very colorful books. His prominent book is Making the Mummies Dance, which you can tell from the title his iconoclastic attitude about it. And he wrote, for example, with regard to one of his most notorious acquisitions that everybody knew that it was stolen at the time he acquired it. And he called J.J. Klejman one of his favorite dealer-smugglers, and Klejman had been involved with Lydian Hoard. And Turkey argued that that was a fact from which one could infer that the Kiliya-type idol was stolen, because it was in the hands of somebody who had on other occasion or occasions dealt with looted property. And the judge took that as an inference too far.

Katie Wilson-Milne:  Right, that one person’s telling of a story about one affiliation with one looted property is not enough in a case in 2020, 2021 to associate that person, long dead with no records, with other objects that were not part of that account. Yeah.

Tom Kline:  Yes, and good of you to include the prejudicial aspects that if he was around and could be questioned, then it would be a different story.

Steve Schindler:  Right. So if this case is affirmed on appeal— I guess we’ll see what happens— it seems to me that it offers a little bit of guidance for countries who are, at least in the Southern district of New York at the Second Circuit, possibly seeking to replevy cultural property. And the warning is a little bit, “if you don’t have actual evidence that supports your patrimony claim, you stand a good chance of not prevailing.” It seems like this decision could prove to be very important going forward.

Tom Kline:  Yes, we don’t have a lot of these decisions in the cultural property area. So countries have to take their guidance where they are, where they find it. And in this case, as we talked about earlier, Turkey didn’t have a single anchor fact to rely on. Everything was supposition and inference and maybe guesswork, I would say. On latches, the evidence that Turkey knew about this object and didn’t act on it is there. So I think it’s a warning to countries to do their own diligence, not ignore objects that they know about, and to gather evidence.

Katie Wilson-Milne:  Yeah, that’s a huge resource decision though, right? I mean the countries that do that well sometimes— I don’t know, Italy, Greece, maybe Peru— you would know better than us. They spend significant resources doing that, and they often lose. So they often lose in US courts, and they may get objects back, but if they’re arguing legal claims about ownership it can be very difficult. So it’s a lot to ask of resource-strapped countries to devote the kind of tracking, reading every article, looking at every auction, looking at every museum show at a major museum. And Turkey argues that, that it’s just not reasonable to ask a country to do that. And when it does come to their attention, however that is, that should be the time they get to bring a claim, not that they should have been searching beforehand. And that standard isn’t that clear. In this case, the court says clearly they should have known before, but it’s not clear, like, exactly what constitutes the point at which you’re on enough notice. Like, should you be paying attention to all exhibitions at the Met? Is the standard that if an article is— a popular article is written by an academic in your own country, in your own language, that that’s the trigger? You know, we don’t really have clear rules on this, and I think that’s going to be difficult for countries in deciding what kind of resources to devote to cultural property monitoring, we can call it. It may be difficult for them to do.

Tom Kline:  Well, that’s a good point. And in this case, we had maybe too many facts. We had many, many facts about Turkey’s knowledge. An article in Cumhuriyet, which is the equivalent of the New York Times in 1989, written by a prominent cultural journalist that everybody knows and talks to—   

Katie Wilson-Milne:  It mentioned this object by name and its location, right? Yeah.

Tom Kline:  Yeah, and no one would admit to having seen that, but it’s not credible that they didn’t.

Katie Wilson-Milne:  Tom, can we also— I mean, the parallels with the Holocaust cases are pretty striking, although the time period is obviously way, way different. But a lot of these issues come up, and we talked about on the podcast in other episodes when we’ve talked about some World War II-related claims that the legal— the American legal system, which, perhaps quite rightfully so, relies on facts and the idea of private property ownership and proof of that ownership is increasingly intentioned with some notions of equity, especially that we’re seeing in the— that we’ve seen in the systems in Europe that are state-based repatriation that don’t rely on proving these same types of ownership claims in court. And sometimes, we’ve seen courts stretch to be more sympathetic to Nazi-looted art claimants. And sometimes they stick— what they say— with the law, and that makes it much harder for these claimants. But do you see a pattern of courts going one way or the other with these types of claims generally, or do you see more leniency or flexibility or sympathy to World War II-type cases for claimants of art that may have been stolen or looted by the Nazis versus we’ll call cultural property cases that deal with antiquities?

Tom Kline:  It’s good to draw that parallel and to see what kind of conclusions we can draw. The claimants in the holocaust area are starting to feel like museums and collectors are stonewalling them. And museums and collectors are starting to feel like the major cases have been brought, and what they’re seeing are marginal claims that maybe should be referred to as Holocaust-adjacent. So I think one of the similarities in the two areas is the increasing attention to the facts, the very specific facts. And at the same time, I’ve heard it said about the Holocaust cases that in those cases, the facts can be well known, in spite of the many deaths and the destruction of records, destruction of property. In many, many cases, records can be found to tell a story of what happened. The question is, what inferences do you draw from it? Was this transaction coerced? Did the person have a chance of other options, or did they have to sell this object? Did they sell it below market value? And that’s what we were talking about with the Stargazer, what inferences do you draw if any, from the fact that it went through the hands of J.J. Klejman? So the overall similarity is the increasing rigor in the analysis of both kinds of cases.

Katie Wilson-Milne:  Yeah, they’re surprisingly similar. I mean, that— you’re right. The types of inferences that are made or rejected are very similar. We’ve talked about cases where the inferences are this family traveled to Italy and then to the United States, and these were the dates of their movements. So why would they move except for the circumstances and pressure? And why would they have sold their homes?

And it’s a stack of inferences, which in a world in which there are direct descendants of Holocaust survivors alive and with I think more emotional investment in those stories, seem really compelling and believable, because that is exactly how we understand that kind of victimization to have occurred, at least early on in the Nazi era, was that kind of pressure to move, to sell your property. That really maybe there was technically a choice for some short period of time, but not really. And the kinds of historical inferences that need to be drawn from people’s behaviors. But the difference is that it was a lot more recent. And it’s interesting to have courts treat cases about objects that are thousands and thousands of years old brought by state actors very similarly to cases brought by the individual heirs of Holocaust— either Holocaust survivors or victims or people who were just forced out of their homes or into different circumstances because of the climate in Europe during the Third Reich.

Tom Kline:  Well, that goes back to the question then of resources. If a family knows about many losses, what is it reasonable for them to do to pursue them? And the same with a country? I did want to note that Turkey is a G17, G19 country with the second largest standing army in NATO. So I think for Turkey it’s— Turkey is more like Italy I think, than it is like Ethiopia and— or Peru. That it has the resources, it’s a question of allocation. And even Turkey’s witnesses told us that they didn’t think Turkey was spending enough on its cultural ministry.

Steve Schindler:  Alright.

Katie Wilson-Milne:  Thank you so much, Tom. It’s always a pleasure to see you, and thank you for being our guest on episode 2 of season 5.

Steve Schindler:  And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts, and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos for making us sound so good.

Katie Wilson-Milne:  Until next time, I’m Katie Wilson-Milne.

Steve Schindler:  And I’m Steve Schindler, bringing you the Art Law Podcast, a podcast, exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.


Music by Chris Thompson. Produced by Jackie Santos.