With Katie on a parental leave, Steve speaks with Herrick Feinstein’s Victor Rocco about his firm’s representation of the Republic of Turkey in litigation brought by Turkey to possess a millennia-old Anatolian marble statue (the Stargazer) owned by Michael Steinhardt and sold by him through Christie’s. (We previously had counsel for Christie’s and Steinhardt on the podcast.) 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. Turkey has appealed that decision, and Victor and Steve discuss the trial and Turkey’s arguments on appeal.
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: So we’ve been doing this now for five years, and it’s always the case when we start an episode I say, “Hi, Katie,” and she says, “Hi Steve,” and then we ask each other, “What are we doing today?” And that’s just been the way that we’ve done things now, but as some of you know, Katie had a baby, Lane Alexander, and she’s taking a little bit of time to be with Lane, who is incredibly cute. And she will be on a parental leave until around the beginning of April. So I’m stuck doing this by myself, but I’ll still say, “Hi Katie.” With that, we’re here today to bring you part two of a previous episode called “Turkey[’s] Quest for the Stargazer.” Our listeners will remember that our guest for part one was the lead lawyer for Christie’s and Michael Steinhardt in an important case involving the so-called Guennol Stargazer. The Stargazer’s official name is “Anatolian marble female idol of Kiliya type,” and as we learned last time, it was likely manufactured in the fifth millennium BCE in what is basically the Anatolian region of modern-day Turkey. So 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 to Turkey under a 1906 Ottoman Empire patrimony law.
And after an eight day trial, on September 7, 2021, the New York District Court issued its decision in favor of Christie’s and Steinhardt. In very broad strokes, Judge Allison Nathan determined that Turkey did not meet its initial burden of proving ownership of the Stargazer under the 1906 Ottoman patrimony law, and therefore dismissed Turkey’s claims for replevin, the return of the Stargazer, and conversion. Judge Nathan went on to conclude that even if Turkey had met its burden to prove ownership, Christie’s and Steinhardt still must prevail based upon their defense of Laches, which is an equitable defense that precludes a plaintiff from recovering, even where he has a legal right to recover an object, where he has delayed too long in bringing the claim.
The Republic of Turkey has appealed that decision. And we have as today’s guest, Victor Rocco, one of the lead lawyers representing Turkey at the trial. Victor is a partner in the firm of Herrick Feinstein, where he is the chair of Herrick’s White Collar Defense & Investigations practice. Vic has a long history as a commercial litigator and as a prosecutor. Vic is also a member of Herrick’s Turkish practice, which according to the firm’s website, is built on a strong enduring relationship with the Turkish government and business community. Herrick has brought a number of lawsuits on behalf of the Republic of Turkey to recover its cultural treasures. Herrick and Vic’s colleagues on the case, Lawrence Kaye and Howard Spiegler, have a well-deserved reputation as art lawyers have often sought and obtained restitution of looted art and cultural artifacts. So welcome to the podcast, Vic.
Victor Rocco: Thank you, Steve, and thank you for having me. It’s nice to meet you and nice to have the opportunity to talk about this interesting case.
Steve Schindler: Yeah, and we’re delighted to have you. Before we start talking about the case, do you want to say a few words about your firm and your colleagues and what you do?
Victor Rocco: Well as — I think it’s pretty well known that Herrick over the years has had a very substantial art recovery practice that was founded back in roughly 1990. So now it’s over 30 years old. The founding partners were Larry Kaye and a fellow by the name of Harry Rand, who unfortunately is no longer with us. Howard joined with Larry two or three years later, and they essentially formed the cornerstone of Herrick’s art practice. They now have formed a firm within a firm, something called Kaye Spiegler, and it’s ironic that Larry, Howard and I were partners together many years ago. Before Larry and Howard joined Herrick.
Steve Schindler: Oh, wow. Okay.
Victor Rocco: So it’s been a happy reunion, so to say.
Steve Schindler: Great. So Vic, the case is captioned “Republic of Turkey versus Christie’s, Michael Steinhardt, and Anatolian marble female idol of Kiliya type.” Tell us a little bit about the background of the case and how did it come to pass that the Turkish government brought a lawsuit against these parties?
Victor Rocco: Well, I think the long and short of it is that in 2017, Turkey under its patrimony laws that go back to 1906, and actually earlier, but here the law is an Ottoman decree that was declared in 1906, Turkey owns all antiquities found any place in Turkey after 1906 under the terms of that decree. Turkey in March of 2017 learned of the auction, the special auction that was being held at Christie’s, where for the first time the provenance of the Stargazer, sometimes referred to as the Guennol Stargazer was published for the first time, showing that this 6,000 year old object had no provenance prior to its appearance in New York in the early1960s.
Steve Schindler: Yeah, I want to come back to this question of the lack of provenance, which is, I know, something that you have emphasized in your appeal, but let’s just talk about this 1906 law for our listeners, who are not all lawyers and not all schooled in patrimony laws. What gives a national government the right to cultural property in the possession of a private individual in another country?
Victor Rocco: Well, American law recognizes that property belonging to someone outside the United States continues to belong to that person, especially if the property is stolen. And so here, the cultural patrimony, which is declared to be the property of the Turkish state — if it’s removed from Turkey illegally, retains its character as stolen property. And the law in New York has always been: a thief can’t convey good title to a piece of stolen property.
Steve Schindler: Right, and then is it clear that this 1906 decree, we’ll call it, is a patrimony law, as opposed to say an export law, which are laws that are not generally enforced in the United States? What’s the difference?
Victor Rocco: Well, the difference here is that the law has, since it’s enactment, been enforced in Turkey against Turkish citizens uniformly. I think that there was a lot of time spent at trial trying to prove that this law was only occasionally enforced, but I think the evidence was substantially to the contrary.
Steve Schindler: And the judge ultimately agreed with your client’s position on that, right? That there was no question that this was a patrimony law, that it was widely enforced and would be sort of the governing law in this case, right?
Victor Rocco: The judge determined on motions for summary judgment that she decided back in September of 2019, that on its face the law was an ownership law and gave the defense an opportunity to prove that it was something other than an ownership law. They failed to do that. And the judge essentially adhered to her original decision, that the law was clear on its face. And this is not a case like Johnson against Peru. I mean, this is—there was substantial evidence that over the years this statute has been enforced and enforced against Turkish citizens, not selectively enforced against foreigners.
Steve Schindler: Right, and that seems to have been pretty decisively decided by the judge. And so with respect to the 1906 decree, I mean, there are really two pieces of it, right? I mean, the Turkish government is claiming ownership of objects that came out of the ground in modern-day Turkey in 1906 or subsequently, but there are two pieces to it. One, the object him out of the ground in what is modern day Turkey, that’s piece one. And two, that it was after 1906. Is that about right?
Victor Rocco: I think that it’s about right. I’d just add a little nuance to that that the statute applies to antiquities, and antiquities are broadly defined by the decree. So right, in order for it to be property of Turkey it’s got to be excavated in Turkey after 1906, and it has to be an antiquity.
Steve Schindler: An antiquity, right. So it’s not just anything. I stand corrected. Not anything that came out of the ground, but something that is defined as an antiquity. And I don’t think there’s any dispute in this case that the object of this case, the Guennol Stargazer is an antiquity under that law, right?
Victor Rocco: That’s right.
Steve Schindler: And what do we know about the history of the Stargazer? What do we actually know about it?
Victor Rocco: Let’s divide it into two categories. About the history of this Stargazer, the one that was the subject of this litigation, there’s very little that’s known. And indeed what is known of it is known after 1961. It’s provenance, its ownership goes back to only 1961. As to these Stargazers, Kiliya type idols generally, we know that they were made in Kulaksizlar. It seems to be the only place in antiquity where these statues were made. They were made of marble. They’re Stargazers, because their head is pointed upward. It’s not clear what they were made for. It appears that they were carved using stone tools, and they date back to roughly 4500 to 4200 BC. They were used in some ritual, whether it was a fertility ritual or a death ritual is not clear. They were exchanged locally in Western Anatolia. That’s pretty much it.
Steve Schindler: So for this particular Stargazer, then, the only thing that is known for sure is that it showed up in a collection of a fairly well-known US collector of antiquities in around 1961, right? There are no pictures of it. There’s nothing showing that it came out of any particular place.
Victor Rocco: There’s no direct evidence of a find spot, which is consistent with the notion that the Stargazer was looted. The size of it is known, right? It’s a small article about nine inches tall, but beyond that in terms of a striation, of whether it was a stratified find found in place, we don’t know. And we don’t know where that place is.
Steve Schindler: And we do know, notwithstanding its small size, this is an extraordinary artifact, correct? I mean, this is — based on the rarity of these types of idols and the condition that it was found in, I think everyone agrees that this a remarkable piece of cultural history, correct?
Victor Rocco: Well, let’s put that into a little context, because I think remarkable is an important word.
Steve Schindler: Sure.
Victor Rocco: I think I’d agree with you that it is remarkable. It’s almost intact. The neck is broken. The feet of the idol are missing. Aesthetically, it’s very pleasing to look at. There are roughly 15 — there are different estimates here. I’ve seen the number 15 referenced to the number of Stargazers that are as complete. I’ve seen there’s as many as 24 or 30. It doesn’t seem that there’s a clear number, but they are relatively rare.What they have in common. The only stratified finds of these idols have been made in Turkey, in Western Anatolia.
Steve Schindler: Right, and I think though, at the trial at least, I think both sides stipulated to the fact that the idol’s size and near-mint condition make it among the most exceptional examples of Kiliya type idols known to exist. I mean, that was a stipulated fact number 12 from the trial. Who were Turkey’s — I want to just sort of set the stage a little bit and then we’ll talk about some of the legal issues, but who were the key witnesses for your client in this case?
Victor Rocco: We had an expert witness by the name Neil Brodie. We had one of the principals from the Ministry of Culture, Zeynep Boz. We had a legal expert, and that was pretty much it. Those were our witnesses. Their direct evidence was in effect done by declaration, as opposed to live testimony. We could talk about trying this case virtually. I know you did it with Tom Kline when you spoke to him.
Steve Schindler: Yeah, what was it like?
Victor Rocco: It was different. In a sense it was convenient, certainly for the witnesses. I think it was done efficiently. It took us eight trial days to try this case. I think if we were hearing testimony in person the trial would’ve been a bit longer than that, maybe another two or three days. The judge was on top of it. She’s very easy to work in front of. Allowed us to make our objections, voice our objections. Was polite, but firm. Overall I say that I would have no problem trying a case like this again remotely. I don’t think this is going to become the standard. There’s obviously already a movement back to trying cases live. It’s not something that I think would work so well with a jury. With a non-jury case, I think it was easier to do. What I found most, I suppose, most problematic wasn’t the fact that this was done virtually — and we had a choice by the way, as to whether we were going to proceed virtually or whether we would wait for, you know, time to try this live. But the client wanted to — both clients wanted to move the case along, and so we agreed to try it virtually. But I think what troubled me the most was that direct evidence was taken by declaration.
Steve Schindler: Yes, could you explain for our listeners what you mean when you say that the direct testimony was taken by declaration?
Victor Rocco: Well, it was essentially done by affidavit. And what happens is you move the affidavit or the declaration into evidence and once it’s received in evidence, essentially, I think the judge would’ve allowed some clean=up questions, a couple, but essentially that’s your direct case. I think in using declarations, the granularity of someone’s testimony is lost. I think the immediacy of the testimony is lost. You don’t have voice inflection, you don’t have emotion. And I’m not sure that at the end of the day it’s the most comfortable thing for a witness to get on the witness stand and testify. And testimony can be opened by a very hostile cross examination. It’s nice to see the clients get comfortable on the stand and have their wits.
Steve Schindler: Right, I agree with you 100%. I mean, that’s my view of it. I’ve had trials proceed in the way that you’ve described, you know, even before COVID. To me it’s very jarring to just have witnesses get on the stand and be cross-examined, as opposed to being able to tell their story. I would agree with that.
Victor Rocco: I think a lot is lost, and I think that it’s not as difficult for the expert witnesses is as it is for the lay witnesses, but I think it’s a problem. And I quite frankly would’ve preferred hearing Neil Brodie testify live than read his declaration.
Steve Schindler: Yeah, and do you think it had an impact on the outcome of the case?
Victor Rocco: You know, it’s easy to kind of look back.
Steve Schindler: Sure.
Victor Rocco: I think it’s very difficult to say — I certainly think that it’s conceivable that it did. And I think it contributed to what I think is a fundamental flaw in what the court did, and that was essentially not appreciating the burden of proof that exists on the defendant in these kinds of cases.
Steve Schindler: Well, that’s maybe a good entree into your appeal, because you’ve just filed your appellate brief. I’ve read it, I have a few questions about it. But why don’t we start by just you outlining what were the main issues that the Republic of Turkey raised in appealing Judge Nathan’s decision?
Victor Rocco: Well, actually, I think we can say — we can break it down to the question of ownership and the court’s determination that Turkey did not sustain its initial burden of proving ownership. We argue that it did, and it more than did sustain its initial burden. The second question is whether the defendant satisfied its burden of proving that it was an acquired title or acquired possession of the title lawfully and that it was not stolen. We take the position that failed on both counts. The third issue is the question of laches, because the judge said, well, even if we were able to prove ownership, we were dilatory in asserting our claim and Steinhardt and Christie’s were prejudiced by that. And we take the position that they were not prejudiced by it, that we were not dilatory in asserting our claim. And indeed that even if we were dilatory in asserting our claim, Steinhardt did not engage in the diligence that essentially is required under New York law.
Steve Schindler: Alright, and so let’s try to break it down into the two components that you’ve identified. One is the issue of ownership and who has really the burden of proving ownership, and then the second one will be the laches argument. But it seems like there’s a fundamental divide here between the judge’s decision on burden of proof and what — I’ve read your appeal brief — and what you’re arguing on appeal. The judge very clearly took the position without really setting out the sort of legal support for it, but just kind of took the position that Turkey had a burden of proving its ownership of the Stargazer by a preponderance of the evidence. And again, all of our listeners are not lawyers, but typically in any case, in most circumstances the plaintiff in the case, in a civil case, has the burden of proving the elements of her case by a preponderance of evidence, which is just basically 51% or a little bit more than equal. You have taken the position that it was really—Turkey’s only burden here on ownership was to set out a prima facie case, that is to present some level of evidence of ownership, and that the burden under case law that you’ve cited switches and that the burden of proving that the object wasn’t stolen then rests with the defendants, in this case Steinhardt and Christie’s. Does that about summarize your argument?
Victor Rocco: Yes and no.
Steve Schindler: Okay. Go ahead.
Victor Rocco: Let’s see if we can break this down a little bit. We’ll start with the proposition that the law in New York certainly seems to be that there’s a threshold requirement of a plaintiff or claimant offering evidence proving or establishing a colorable or arguable claim of ownership. I’m not personally clear what that means, but it would seem like almost any evidence would suffice to satisfy that standard. I don’t care whether we call it preponderance or whether we call it colorable or arguable claim. I think that the evidence that we offered here more than satisfied that standard. And in fact I think we established outright Turkey’s ownership of the idol so that the burden shifted to the defendants to prove that they lawfully acquired the statuette.
This isn’t a semantical quibble. I mean, quite frankly I think we can describe what the initial burden is. Even with the preponderance standard, it would seem to me that once the plaintiff offered some evidence of ownership, and clearly we did that, the burden then under a preponderance standard is that the defendant has to come forward and prove that we’re not the owners. And in fact, they would do that by proving that they acquired the statue lawfully and that the statue was not stolen.
Steve Schindler: Where does that burden come from? Because in most civil cases the plaintiff has the burden of proving her case. And so in this case it would be Turkey’s proving under the 1906 decree that the object in fact came out of the ground after 1906. And that would be Turkey’s burden. There normally wouldn’t be a burden-shifting. Is there something in our case law that leads you to that proposition?
Victor Rocco: Well, I disagree with you. I think that there’s always burden shifting in a civil case. That’s the difference between a civil case and a criminal case. We speak about the standard of evidence, the standard of proof in a criminal case being proof beyond a reasonable doubt. And we basically make that a very hollow standard, the gold standard. But the real genius, I think, of the evidentiary requirements in a criminal case is not so much proof beyond reasonable doubt, the fact that the burden does not shift. This civil case, the burden does shift. So it’s almost, by your standard, 51 to 49%. The notion you’d win a case by fair preponderance if I offer evidence that something belongs to me, it would fall to the defendant then to refute that by offering evidence that it did not belong to me.
So to the extent that it’s watered — it seems to be watered-down a bit, or the burden seems to be perhaps lower. I think that’s traceable back to the Lubell case, the Guggenheim Museum case, and Judge Wachtler’s decision in that case, which made it very plain and one of our principle objections to what the district court did here was that New York law favors the victim owner to the good faith purchaser. And I think that Judge Nathan reversed that, turned that on its head.
Steve Schindler: Yeah, I mean, I think we can have a conversation about the Guggenheim [v.] Lubell case, as well as the Bakalar case, you know, both of which—well, the Bakalar case obviously involved Nazi-looted art or allegedly looted art. And the Guggenheim case was really kind of an interesting case, because it really turned on statute of limitations, and the question of whether or not good faith could be an element in determining whether or not an ownership claim was barred by the statute of limitations. And Judge Wachtler had said at the time that with respect to statute of limitations, of course, that the claimant’s conduct or diligence should not enter into it. And for the very reasons that you suggest, because New York does is give some favorability to owners. But then the court went on to say that, you know, with respect to laches of course, it is relevant. And then ultimately the case went back on laches. I guess I question whether your reliance on Lubell is entirely correct here.
Victor Rocco: We were addressing the issue burden of proof. And I don’t think that there’s any question in Lubell, whether it was in the Appellate Division or in the Court of Appeals, I don’t think there’s any question that the standard is articulated in Lubell is that the plaintiff has an obligation to as not to establish a colorable claim or an arguable claim of ownership. You can slice that however you will. In this instance, I think that the evidence that we offered went far beyond that, and I think that even measured by a fair preponderance standard, we satisfied a fair preponderance standard of ownership.
Steve Schindler: Alright, so let’s talk about the evidence, because as we talked before this is an object for which there’s no clear — there is no record of its discovery. And it seems to me that both sides in this case presented evidence that was inferential. What was the evidence that you presented from which you argued that the court should have concluded that this object was “stolen” under the 1906 law?
Victor Rocco: Well, there are eight or nine different factors. Let’s see if we can go through at least some of them. So first, and most importantly, we argue that the idol originated, and I think the parties — it’s plain that the parties agree that the idol originated in Western Anatolia, probably in Kulaksizlar. And let me just point out that we never made the claim that that itself was sufficient to establish the fact that the idol was exported ultimately from Turkey. But coupled with that, there’s the fact that the only stratified finds of these idols have been in Anatolia, no place else. The fact, and this is something that I find remarkable in the District Court’s decision, the fact that this idol lacks all provenance prior to 1961. You can go through Judge Nathan’s opinion, and you’ll see that there’s not one reference to the idol’s lack of provenance prior to 1961. And quite frankly, the lack of provenance is a very substantial piece of circumstantial evidence proving that this idol was illegally removed from Turkey.
Steve Schindler: Can I just stop you for a second? I just want to push back a little bit about this lack of provenance, because I understand that that’s the argument that you’ve made, and that I think your argument is really at the time that the Stargazer came up for auction at Christie’s was the first time that a provenance was available. But the judge does, in her opinion, go through a number of factors involving the display and publication history of the object, including its being displayed in the galleries of the Metropolitan Museum of Art from roughly 1968 through 1993, and then subsequent to that, after it was acquired by Steinhardt, and that it’s identified in the display at the museum. And she also then identifies several scholarly publications in which the idol is identified and including an image of the idol. And so, when you say that there was no provenance before the object came up to auction, what do you make of all of this other evidence?
Victor Rocco: Of course there’s a provenance once it appears here in the United States. There’s not only no provenance prior to 1961, there’s no record of its existence prior to 1961. The existence of this statue was first published in 1964, and then I think it was published again in 1972 and 1982. But it’s remarkable that there’s no indication of the existence of this idol, which goes hand in hand with its lack of provenance prior to 1961.
Steve Schindler: Okay, and just explain what is the significance, in terms of your argument, of the fact that there is no provenance prior to 1961?
Victor Rocco: The fact that it’s remarkable in itself, that an object this important would not have a record of prior ownership. In fact, it is pretty strong circumstantial evidence that it was illegally taken from Turkey, the fact that it had no provenance. Almost every important lawfully excavated antiquity has some record of ownership. This idol did not. And it’s important that it did not, because Steinhardt, when he purchased the idol in 1993, knew that this had no provenance, no record of ownership prior to 1961, and it was a 6,000 year old antiquity. That put him on notice, the fact that there was something not kosher about this. In fact, let me modify that to say it should have alerted him to the fact that he should have inquired further about the ownership of this statute. Where was it for the prior 6,000 years?
Steve Schindler: So there’s also an argument that you make about the fact that, at least in your expert’s opinion, Dr. Brodie said that these types of idols were only traded locally within Anatolia. Is that correct? And that you draw an inference from that, that it therefore had to have come out of the ground somewhere in Anatolia as opposed to other parts of the world.
Victor Rocco: That isn’t quite what Brodie said. I think there was a witness by the name of Dench who testified, who was not called at trial but a deposition was received into evidence, testified that these idols were exchanged locally, meaning within the area of Kulaksizlar and perhaps in broader Anatolia. Brodie agreed, certainly agreed with the fact that these idols were items of exchange. And we contend that the idol was most likely found or excavated in Anatolia, because the record is that any verified excavation — all striated finds of these kinds of idols have been made only in Anatolia.
Steve Schindler: So the other side, Mr. Steinhardt and Christie’s, offered up Max Anderson as an expert, and I know you have taken some issues with whether Dr. Anderson is qualified in this particular case to give the evidence that he did. He has been a guest on this podcast, but he offered up some testimony about the trade of idols and other things in the period that we’re talking about, correct?
Victor Rocco: The answer to that is that he offered some opinion about trade in the Chalcolithic era.
Steve Schindler: And I think he also testified that there were a couple of, at least, Kiliya type idols that were found outside of Anatolia.
Victor Rocco: Like the Kiliya idol in this case was found in the Metropolitan Museum. There have been idols found in museums, one in the Mytilene Museum on the island of Lesbos and another, the American School in Athens. But they are museum pieces. He did not testify that there were excavations outside of Anatolia.
Steve Schindler: I think his testimony was that there are or were Kiliya type idols that existed outside of Anatolia prior to 1906.
Victor Rocco: Well, it’s not clear that they did exist outside of Anatolia. They were two museum pieces. One may have been found outside of Anatolia. It’s not clear, prior to 1906. The second one that was in the American School in Athens, it’s not clear when that arrived in Athens, whether it was before or after 1906. But I don’t think that’s particularly important because we’re talking about evidence about this idol in this case. And where is their evidence, where was evidence offered by the defense about the movement of the idol in this case? There is none.
Steve Schindler: Right, I mean, the funny thing about this case, and I think it’s true of really all of the evidentiary points, is that there’s no direct evidence of virtually anything. You know, for example, even, you know, your point about the provenance and that there’s no provenance of this idol, you know, that exists before 1961. And there are some inferences that you want the court to draw as a result of other artifacts and the relationship between the time of sort of excavation and the time that they appeared on the market, right? So both sides really here are trying to argue, you know, from more general types of trends.
Victor Rocco: Well, there’s a big difference — if I may, Steve, and I think the difference is that we talk specifically about this idol, the defense talks about Kiliya type idols generally. And we argue that that’s not sufficient evidence, that what they were required to do under Lubell and under New York state law was essentially give evidence about this idol, not about Kiliya type idols generally.
Steve Schindler: Okay, what’s the sort of next — or piece of evidence that Turkey introduced that you argue supports the fact that the idol was removed from Turkey after 1906?
Victor Rocco: I know you probably have the list in front of you, but we’ll go on and talk about the fact that when it was sold to Martin in 1961, it was sold by J.J. Klejman, and Martin was offered his choice from a group of idols and chose this one. Now, you referenced that these are extremely rare idols, that there are roughly 15 that are largely intact. It was astounding that Klejman had a group of these all at one time to offer to Alastair Martin in 1961. That is, to me, circumstantial evidence of looting, the fact that there was a group of idols. Beyond that, Klejman was known to traffic in looted Turkish antiquities. The judge doesn’t give much credence to that, but we’re not relying on Tom Hoving, as colorful as he is, and we’re not relying on his memoir, I think called the Artful Tom, which is wonderful.
Steve Schindler: Yes.
Victor Rocco: We’re relying on the fact that there is no question that Klejman was a dealer in Turkish antiquities, that Klejman was the source of the Lydian Hoard, that the Lydian Hoard was sold to the Metropolitan Museum of Art in the 1960s over a period of two or three years. We’re not talking about one artifact. We’re not talking about one antiquity. We’re talking about, I don’t remember, it was either 363 or 364. It is a fair assumption given all those facts that Klejman himself came into possession of the idol unlawfully. And even Alastair Martin noted in a catalog that he kept in 1990 in the middle of the Lydian Hoard litigation that Turkey may present a problem with respect to this idol. I don’t know if I exhausted the list. There are a couple of other references. I think there’s a reference to Getz-Preziosi saying that these all come from Anatolia. But I think in broad strokes those are the evidentiary blocks that support our claim specifically about the origins of this idol. Let me also add that were not refuted by the defense.
Steve Schindler: Okay. Let’s move to the laches argument that you make, because Judge Nathan decided that even if Turkey had met its burden of proving that the Stargazer was removed from Turkey post 1906, it is unable to recover based on the defense of laches. So you want to just walk us through what are the elements of laches in New York?
Victor Rocco: There are three elements of laches, maybe four. One is that the claimant knows of the existence of a claim. Second, that the claimant engages in inordinate delay in asserting its claim. The third is that the defendant is prejudiced by the delay. And it’s seems that there is a more general understanding, since laches is an equitable remedy, that the conduct of both the purchaser — the claimant and the possessor are examined closely.
Steve Schindler: So let’s try to break this down and really just focus on your argument as to why the judge was incorrect in finding that laches precluded Turkey’s recovery in this case. And let’s start with the knowledge of the plaintiff about a claim. Why is it that the Republic of Turkey, which has been vigilant about recovering its cultural patrimony, why is it that they are not somehow charged with all of this knowledge and put on notice that they might have a claim against this idol?
Victor Rocco: Well, Turkey, to start with, was aware — and we didn’t contest that Turkey was not aware of the existence of this idol. By the way, just as a segue, that was a strategic decision that we made during trial. Quite frankly, I’m not so sure that the knowledge of the people who are charged with knowledge is necessarily imputable to Turkey, but we made a decision not to challenge that. So we’ll assume that Turkey was aware of the existence of this idol. And quite frankly, assuming that they knew all they knew was that the idol existed and the idol appeared to be Anatolian in nature and its origin. So that’s not knowledge that the idol itself had been looted. This isn’t an inventoried piece of art. Turkey doesn’t know that there is, you know, an Anatolian figurine that was taken from a specific spot, that it was taken from under the ground, or when it was taken from under the ground.
So it’s just — knowledge of the origins of the statue, I don’t think is sufficient really to warrant any action by Turkey. And I mean, you’re not here to answer questions, I am, but quite frankly, I’m not aware of anything in New York that requires an owner to first investigate whether it owns an object before it makes claims. The cases that have discussed this always involve claims of location and why it is that an owner who knows of its ownership rights sits on its hands and doesn’t go after or try to determine the location of an object it owns. Here there’s a major question as to whether Turkey owned the Stargazer, and it’s something that actually we wound up trying this case about, and the court determined we didn’t own it. So that to me seems to be a bit of a conundrum. And I think that there’s a very clear point where Turkey became aware of its rights, and that’s when it learned that this piece had no ownership provenance prior to 1961. When it learned of that, it promptly asserted its claim.
Steve Schindler: Right, I guess it’s a fair point. You know, this is a little unusual in that Turkey has a patrimonial law that dates from 1906 and many of the other patrimony laws really don’t take effect until decades later, at least after the UNESCO convention of 1970. So this goes back a long way. And a lot of the cases that involve laches and whether or not a plaintiff knows that it owns the work involve, you know, often Nazi-looted art and other cases like that where ownership is not so much of a litigable issue, right?
I mean, this is a little bit different in that there is a sort of legal definition of ownership that’s being litigated. And I take your point about, well, how would you then know if you owned it? But I guess I would push back a little bit. Turkey has been in the business of recovering what it views as looted art. It’s not a novice in this area. And when you see, you know, Anatolian idol of the rarity that it is, it does suggest, I think this is where the district court sort of came out, that the Republic of Turkey maybe should have been on notice that it might have an ownership claim to this object.
Victor Rocco: Yeah, well, I think you said it right. I think that’s where the court came out, but I would also offer to you that Turkey — and we make this point over and over — that Turkey essentially owns thousands of antiquities. I mean, there are thousands of antiquities all over the world described as Anatolian in nature. No country has the resources to lay claim to every one of those antiquities. And even in the instance of these Kiliya type idols, assuming that there’s a dozen or two dozen of these extent, should Turkey be making claims based merely on the fact that they appear to be Antolian in nature when there’s no indication of how or where the figurine or the statue comes from? Turkey in the past has obviously been aggressive in seeking its patrimony, but in most of those cases there’s been direct evidence that the items were looted and that the items were Turkish in origin. I don’t think that you would propose setting up a bar to proving these cases by circumstantial evidence. And the anomaly is that when you say, well, you know, Turkey has made the decision to go back to 1906 and anything after 1906 you’re ultimately going to have to prove by circumstantial evidence, because people who were involved in unearthing antiquities back in 1906 are no longer around.
Why is it any different? Why is circumstantial evidence any less probative than direct evidence? And in fact, under both New York state law and federal law it’s not. And I would say to you, I’d venture to say that many instances circumstantial evidence is much stronger than direct evidence. In our quarrel here, and again, I think that as a matter of law Judge Nathan is wrong in saying that we didn’t prove our ownership. And I think that Judge Nathan was equally wrong in saying that Steinhardt rebutted our proof of ownership, because Steinhardt offered no evidence about this particular item.
Steve Schindler: Right, well one of the points that the judge makes in determining, you know, sort of relative diligence here — I mean, the judge does sort of take up the point that Turkey should have been on notice of the sort of prominence of this idol at least back to the 1990s and didn’t bring a claim for whatever reason, but that Mr. Steinhardt, who his testimony indicated that he did consult with experts prior to its purchase. But one of the things that the judge notes is that because Turkey had not asserted a claim in the years prior to Mr. Steinhardt’s purchase in 1993, if it had he would’ve been put on notice that there was something contested about the idol’s ownership, and he might not have purchased it in the first place. How do you respond to that?
Victor Rocco: Well, let’s start by saying that when Steinhardt testified that he made inquiry about the idol, he wasn’t interested in provenance. What he was trying to determine was whether it was authentic and whether it was worth what he was going to pay for it. He wanted to know in a list of comparables where the statue stood. And he makes it very plain in his declaration, in fact this was like of course throughout the trial, that he was relying on the fact that its provenance was established by the fact that it had been on loan to the Metropolitan Museum of Art and that it came from the Guennol Collection. Let’s talk about the Metropolitan Museum of Art. Metropolitan Museum of Art is the institution that for more than a quarter of century essentially hid the Lydian Hoard, knowing that the Lydian Hoard itself had been looted, and ultimately acknowledge that when it returned the Lydian Hoard to Turkey. And in terms of Alastair Martin, Alastair Martin noted in a catalog in 1990 that Turkey might be a problem. And let me say that Alastair Martin and even J.J. Klejman were still alive when Steinhardt purchased the idol. Steinhardt could have picked up the phone and called either one of them and, he decided not to do it. So I find it anomalous that he is arguing that he was prejudiced by their absence, because at the time that he purchased the idol, knowing that it had no provenance prior to 1961, the only two people in existence who had any knowledge about the idol were available to Steinhardt. Steinhardt didn’t bother to make any inquiry at all.
Steve Schindler: Right, and of course, if the converse is true, is that if Turkey had asserted a claim prior to that, then those witnesses would’ve been alive to call. Obviously by 2017, they were not alive.
Victor Rocco: It’s not clear—by the way, given Steinhardt’s admitted tolerance for risk, Steinhardt’s essentially disdain for foreign patrimony laws — things that he testified to — his favoring aesthetics over provenance are things that suggested to us, and I think should have suggested to the court, that it would’ve made no difference to Steinhardt. Steinhardt made his bed, and I think trying to blame Turkey for not asserting a claim — I’m not sure by the way at all that Steinhardt would not have purchased the idol. And I think — well, we didn’t get into it. We didn’t get into, even in the appellate brief in terms of what’s happened to Steinhardt since the case was tried — what happened in December when he was forced to return 180 antiquities to source countries, antiquities worth $17 million. 180 antiquities which lacked any provenance that could be determined by the New York County District Attorney essentially suggests to me that this was all very highly probative, and going to what in effect was Steinhardt’s complete indifference to provenance. I don’t think he cared. You can’t just say that Alastair Martin wasn’t available to me. I would’ve called him as a witness and he would’ve helped me. There’s got to be a basis for that. Martin, to the extent that we know what Martin would’ve said, and I think it’s indicated in the catalog that he affectedly used as a diary describing the circumstances of purchasing the idol, who he purchased from — Klejman — what he paid for it, the fact that there was a group of idols that were offered to Martin all at one time. And the fact that Martin recognized that Turkey might be a problem suggests to me that his testimony may not have been so helpful to Steinhardt, who as I said earlier, had access to Martin when he purchased the idol back in 1993.
Steve Schindler: Right, and just, I’ll say again, I know Katie said it the first episode — we did represent Alastair Martin’s son in connection with this case and the discovery that went on. So I’ll sort of leave it at that.
Victor Rocco: By the way, for the record, I didn’t know that. I was going to ask you. I did not know. I was not in the case back then.
Steve Schindler: Yes. No, I know it’s—but in any event, going back to Steinhardt for a second, and I recognize you didn’t argue based on the latest events for the district attorney, but you did concede — I think the court said it — maybe was the court incorrect in saying that the court reached conclusion that Steinhardt was not a bad faith purchaser, was a good faith purchaser, in part because the court said that Turkey conceded that Steinhardt was not a bad faith possessor. Am I incorrect about that?
Victor Rocco: Well, I think you’re correct about it, but I’m not sure that I understand that one connects to the other. The fact of the matter is that I think that — you can even see this in the Guggenheim case — that you can be a good faith purchaser and still be indifferent to something like provenance, which essentially is a paradox that Michael Steinhardt lived throughout this trial, claimed to be a good faith purchaser and at the same time argued that he was— argued? Asserted that he was not concerned about risk and not really concerned about provenance. He knew that the world of antiquities was, as he described it, a tainted world. He knew that there was a lot of wrongdoing going on in that world. He knew this idol was unprovenanced, but he made no effort to determine provenance and he was prepared to take the risk. And he said it repeatedly that he was prepared to take the risk of purchasing the idols and other antiquities — and did. As I said before, 180 artifacts that were seized from him and repatriated, not one of them had verifiable provenance.
Steve Schindler: Yeah, I think we can stipulate that Mr. Steinhardt is a very active collector of antiquities, and that it’s an area where there have been, you know, certainly a number of objects that were taken out of their countries unlawfully. No question about that.
Victor Rocco: We wanted to prove that at trial. The judge wouldn’t let us.
Steve Schindler: Yeah, so talk about that a little bit. I mean, the judge — I know you wanted to introduce at least what would be viewed as prior bad acts.
Victor Rocco: Let me describe it as other acts. Essentially, we moved to preclude a laches defense by arguing that Steinhardt was indifferent to provenance when he purchased antiquities and wanted to offer evidence of seizures by the district attorney. At that point, I think we were aware of five search warrants and seizures. I don’t remember what the number of artifacts were, but it was something like 38. This was offered not to prove Steinhardt had bad character, it was offered to prove that Steinhardt essentially had a pattern of purchasing. And also more importantly, that he was indifferent to provenance. And it corroborates his own testimony that he was largely indifferent to provenance.
Steve Schindler: Right. And then the court excluded the evidence as it related to the argument, the defense of laches, and then reaffirmed that conclusion after the trial and said that her view was that it would have been impermissible under various federal rules to have admitted it.
Victor Rocco: Well, I’ve spent the last 40 years working under federal evidence law 4b, and trust me, in virtually every criminal case I’ve tried as a prosecutor or as a defense lawyer, that evidence would’ve come into this case.
Steve Schindler: Right.
Victor Rocco: And plainly was not being offered to prove that Steinhardt had bad character. And the Second Circuit has an inclusionary rule, a very inclusionary approach to this.
Steve Schindler: Assuming the decision is affirmed, what are the implications for future claims by foreign governments?
Victor Rocco: I think that’s a — let me say that I took the time to listen to your podcast with Tom Klein, and you and Katie’s conversation with him. I thought your questions were terrific. I thought they were insightful. I thought they were thoughtful. I think the same of our discourse here today. I think you just touched on what’s perhaps the most important aspect of this case, not to my client. I mean, my client wanted to win. Or to me, because I wanted to win for my client. But I think that by doing what she did, I think that the judges made it very difficult for source countries to recover looted patrimony. And to say that because an object fits a criteria, it’s an antiquity, and it looks like it came from Turkey and — or from a source country, to say that the source country is under an obligation to investigate immediately and bring a claim, I think puts the source country at a great disadvantage. And quite frankly, I think it’s contrary to public policy. This is enough of an extension of New York law that I think this is a question that really New York courts should answer of what is the obligation of a claimant in circumstances like this?
Steve Schindler: Are there any thoughts about trying to have that question referred to the New York Court of Appeals for decision?
Victor Rocco: You know, quite frankly we’ll see what the Second Circuit has to say about that, but I think it’s an interesting point.
Steve Schindler: Yeah, well thank you, Victor. It’s been a pleasure having you on the podcast, and we will await further briefing from the appellees and a decision by the Second Circuit, and I hope that there’s an oral argument and I look forward to attending it, but thank you for being on the podcast.
Victor Rocco: Thank you for having me. It was a pleasure meeting you, Steve. Thanks for the conversation. Be well.
Steve Schindler: You, too. And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts and send us feedback at firstname.lastname@example.org. 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.