Read Threshold Resistance Online
Authors: A. Alfred Taubman
I can tell you that I love Damon, too. He testified at my trial as a character witness. It was the first time in his life he had testified in court. Many people were displeased with the willingness of a sitting judge to speak in my defense. Thankfully, he ignored their protests and endured what I thought were disrespectful, smart-ass remarks by the prosecution and dismissive treatment by the judge at my trial. The world and certainly the Justice Department would be better off with more Damon Keiths.
There was more to do to assure my conviction. The Justice Department was preparing to allege that Anthony Tennant and I decided to fix prices during our second meeting, on April 30, 1993. There were only two people in the room that morningâAnthony Tennant and me. What did Sir Anthony have to say about this? The jurors would never know. The Justice Department indicted Tennant, a British citizen, in the United States. He was the only Christie's employee
not
to receive amnesty. And this act assured he would be unavailable to shed light on the matter. Understanding that the charge of price-fixing in the U.K. carries only civil penalties, Sir Anthony would have been a fool to travel to the U.S. for a trial on criminal charges. I didn't blame him for that. But I did resent the prosecutors' cynical strategy. Tennant would have been a key witness in my
defense. He was the only other person in the room with firsthand knowledge to support or refute the charges against me. And he was prevented from testifying.
What would Sir Anthony have said if called to the witness stand? Christopher Mason interviewed Sir Anthony for his book:
Tennant firmly denied that he told Davidge to fix prices with Dede Brooks. “The proposition that as chairman I had given Davidge instructions is almost laughable. Davidge did whatever he wanted to and didn't inform me. I didn't see him very often,” he added.
A crime had clearly been committed by Davidge and Brooks, Tennant said, but he and Taubman had nothing to do with it. “Why the hell would I want that sort of thing? And why would Al?” Having admitted their own culpability, Tennant observed, Brooks and Davidge “had transparently obvious reasons for putting the finger on Al and me.”
There was an even more important reason for the prosecution to keep Tennant off the stand. In the thousands of pages of documents Davidge had provided the Justice Department, my name never came up. Not once. The center of the government's case against me was a “memo” written in Sir Anthony's hand that purportedly reflected our discussion on April 30, 1993. The memo, which was really a bunch of notes, never mentioned my name. But Davidge was prepared to testify that Tennant had given him his notes and told him they represented
my
thoughts at the meeting. That's called hearsay. But the notes ultimately would be admitted into evidence, and they would prove very damaging. What would Sir Anthony have said regarding the legitimacy of the prosecution's key document? Again, Mason's interview answers that crucial question:
It never was a memo, he said. “I don't think I've ever sent a memorandum without signing it or addressing it to someone. I don't think
anyone does. And there's no record of any offer, or any acceptance of an agreement, in that thing. They made it seem to be a very sinister document. And that suited everybody except poor Al, who didn't know what the hell it was about, I imagine.
Instead, the “memo” was merely three pieces of paper on which Tennant had jotted down a series of notes over several days, weeks or monthsâan assertion that appeared to square with the discovery by Taubman's lawyers that the two different kinds of paper had been used: one sheet had faint blue lines, and the other two, faint gray lines. The various unrelated paragraphs, Tennant said, “were all written at different times.”
What's more, Tennant told Mason that much of the material in the memo reflected information actually given to him by Christopher Davidge, the government's key witness! How did Davidge get the memo? “He [Tennant] had no recollection of ever showing, or giving, them to him. According to Tennant, Davidge was the only person who knew the secret combination number to the door to the chairman's private office.” Ultimately, the jury members would be misled as to the content and purpose of the memo, and they would never be told that the prosecution's protected witness had the notes!
Now, Tennant may or may not have been unable to destroy the prosecution's case if he had been present in the court. But as Mason concludes: “Whether true or not, Tennant's articulate reflections could at the very least have created substantial reasonable doubt in the minds of the jury members, which could have resulted in an acquittal for the aging tycoon.” The aging tycoon, of course, is yours truly.
I was increasingly frustrated by the efforts of my own government to stack the deck against me
before
trial, so I turned to my (very expensive) lawyers for help. What could I do to establish my innocence?
They came up with an intriguing but high-risk suggestion: a poly-graph examination. A lie detector test! I jumped at the opportunity even after hearing the reason my attorneys considered it high risk. In most instances, the resultsâgood or badâwould not be accepted as evidence at trial. And in just about every case, the results, if bad, would find their way to the prosecutors and probably be leaked to the press.
Nevertheless, I thought it was important to give my attorneys proof that I was telling them the truth. I thought they would work harder for me with that assurance. And I wanted something I could share with my former colleagues on the board at Sotheby's. Their trust was very important to me.
So on October 3, 2000, I flew to Virginia to put my fate in the hands of Paul K. Minor, the highly respected former head of the FBI's polygraph division. For more than an hour I was wired up to Minor's machineâthe test reminded me of the many electrocardiograms I have taken in my lifeâand asked a series of questions designed to get to the truth. The central questions were very specific:
I answered no to all three. Minor's findings: absolutely no deception. I was telling the truth. We shared the results with the Justice Department and with Don Pillsbury, who passed copies of the official report along to the Sotheby's board. Predictably, the prosecutors ignored the information. But I felt good about having something,
anything, to help support my case with people close and important to me. It's a terrible feeling to see your credibility eroded by powerful forces you can't control. To this day, I am the only individual associated with this scandal who has submitted to a lie detector test. Imagine if the Justice Department introduced a new requirement for anyone seeking amnesty from the Justice Department: no polygraph test, no amnesty. I can only imagine how such a common-sense regulation would have changed the course of this prosecution and my life. On May 2, 2001, I was charged with a single count of price-fixing. As we suspected, so was Anthony Tennant, a move that would keep his crucial testimony from getting in the way of the prosecution's hardwired case. I pleaded not guilty.
O
n November 8, 2001, the trial in the matter of
United States of America v. A. Alfred Taubman
got under way in United States District Court, Southern District of New York.
The testimony would be heard in the first-floor “ceremonial courtroom” of the federal courthouse, just blocks from the World Trade Center site, scene of the devastating 9/11 terrorist attacks only one month earlier. In fact, the trial had been delayed because of the difficult recovery efforts in lower Manhattan. The weather was unusually warm for November, with temperatures in the eighties. The indescribable odor still wafting from Ground Zero made its way into the halls of the venerable courthouse.
The presence of heavily armed security forces and defensive concrete barriers around the courthouse added to what for me was an already terrifying experience. Everyone entering the building had to pass through a single security checkpoint thirty or forty yards from the massive courthouse steps. This created the ideal opportunity for the press and paparazzi to ambush me every morning. It was fascinating (and a bit frightening) to witness the aggressive strategies and pack mentality of these folks. What a way to make a living. Several
would actually bump or trip me as others snapped what would be particularly unflattering shots. I did get in a few well-placed blows. One particularly obnoxious CNN cameraman almost lost his equipment as I scored a direct hit with my umbrella!
Inside, the atmosphere was more theatrical. Luminaries such as author Dominick Dunne and actress Sigourney Weaver attended regularly. Weaver was observing the action in preparation for a proposed HBO movie on the scandal and the trial. She was to play the role of Dede Brooks. (There were rumors that my part would be portrayed by Brad Pitt, but we could never confirm them.) Behind the phalanx of high-powered attorneys sat rows of international reporters, many from the art world press, who gave the audience a certain bohemian character. The jury would often turn away from the day's testimony to gaze at the visitors.
My daughter, Gayle, who has a home in New York City, accompanied me to court every day. She was a source of strength for me as I faced this unpredictable ordeal. Robert and William were minding the store back in Michigan at the Taubman Company, and my wife, Judy, made things as comfortable and normal as possible in our Midtown apartment. I asked her to stay at home, and the lawyers agreed. If she had been in the courtroom with me every day, we both would have relived every moment into the evening. I needed that break from the pressure and frustration, and she was kind to understand.
Although I had been in business for more than fifty years, I had spent very little time in courtrooms. The only time I had ever taken the witness stand was in the 1980s. I was suing architect Richard Meier, who had designed my home in Palm Beach. It was a terrific house, but it leaked whenever it rained beyond a drizzle. Richard had failed to remedy the situation, so I paid to make the necessary repairs and design changes myself. When he refused to reimburse me, I went to court to recover around $800,000 from his insurance company.
The trial attracted plenty of media attention (reporters love it when two rich and/or famous people go after each other in public). Actually, Richard and I got along very well, even in court. When I was called to testifyâfollowing a number of roofers, architects, and insurance adjustersâRichard's attorney spent the better part of a morning reviewing all my earthly possessions. To establish my financial position for the jury (and the fact that I certainly didn't need the $800,000), he would read the name of a partnership, the title of a painting, the location of a property. In response to each I was permitted only a one-word answer to the question, “Mr. Taubman, do you own this?” Yes or no. And the judge strictly enforced my brevity.
At the end of this recitation, the attorney turned to the jury and in his most dramatic voice directed one last question to me: “Now, Mr. Taubman, would you agree that you are one very wealthy man?”
“Yes,” I answered. “I'm a wealthy man with a leaky house!”
The jury burst out in laughter and awarded me the money. Even Richard Meier congratulated me on my testimony.
But this was different. Very different.
United States v. A. Alfred Taubman
! I don't think the full impact of what I was facing hit me until the husky female clerk entered the courtroom and announced, “The United States of America versus A. Alfred Taubman.” The country I lovedâthe best, most powerful nation on earthâwas asking a jury of my peers to send me to prison. The country I fought for in World War II was using every legal weapon in its arsenal to take my freedom for something others had done. What an empty, helpless feeling.
Judge George B. Daniels presided over the trial. We didn't know much about him. He had served as legal counsel to New York mayor David Dinkins and had joined the federal bench in April 2000. Judge Daniels had attended Yale University at the same time Dede Brooks was matriculating there, but no one was suggesting that they had known each other.
Judge Daniels denied our motions time and again. For example,
he ruled that Christopher Davidge could participate in the trial, even though the former Christie's CEO was being directly compensated (around $8 million) by his former employer to testify against me. Imagine the potential for abuse when witnesses are permitted to be paid for specific testimony.
Once the trial got going, things went from bad to worse. Critical exculpatory testimony by my New York assistant, Melinda Marcuse, was not allowed. A key document we were planning to use in our defenseâproving that Christie's had reached out to Sotheby's deputy chairman, Lord Camoys, not me, around the time of the collusionâwas not permitted to be entered into evidence. Judge Daniels was concerned the facts would be “confusing” to the jury. These rulings were devastating. In our appeal, we stated it this way:
The record thus demonstrates that admitting the evidence would have caused no prejudice or confusion, while excluding it caused both. Once again, the court erred on the side of exclusion: the government took improper advantage of the error; and Taubman was prevented from putting on his case.
Davidge (whom I had never met) and Dede took a novel approach to their testimony. They readily admitted to being liars. One particularly memorable exchange between Scott Muller and Christopher Davidge went like this:
MULLER: You remember lying through your teeth, right?
DAVIDGE: I wouldn't say it was through my teeth, but I did lie.
It was hard to determine if the jury would believe anything from these witnesses. We used my flight logs and Brooks's itinerary to establish that her account of the date and time at which I allegedly told her to break the law was impossible. When we confronted her, she
deftly backed off her recollections. When she testified that I had given her a handwritten summation of my April 30 meeting with Sir Anthony (anyone who works with me knows I never take notes or pass along handwritten memos), she reported that she had not kept the note. We asked for schedules documenting the times of her meetings with Christopher Davidge, because we strongly suspected that she and Davidge had begun meeting well before I ever met Sir Anthony Tennant. But she informed the court that she always destroyed her diaries at the end of each calendar year.
Would the jury find this level of obfuscation credible? I didn't want to take any chances. I wanted to take the stand, look these people in the eye, and profess my innocence. If they were going to side with me, I had to tell them what Sir Anthony (who was still a mystery to them) and I discussed in our breakfast meetings. I had to address the ridiculous assertion that I would tell Dede Brooks, who rarely followed anyone's orders, to go break the law. The jury members had given up weeks of their busy lives to consider my case. I owed them as much time as they needed to get to know me better.
An enormous amount of threshold resistance existed between the jury members and me. I could feel it every day during the four-week trial. I saw it in their eyes as they glared at me from the jury box. They didn't like me or relate to me. They mistrusted everything about the auction business. The prosecutors had done an excellent job of making the selling of art sound downright sinful. They just wanted to get back to their lives. I was not a legal expert, but I was pretty good at sizing up people and assessing threshold resistance. There was plenty of work to do before these folks could ever rule in my favor.
That was my read. My attorneys didn't agree. When it came time to decide if I would testify, my legal team felt that we had established reasonable doubt in the minds of the jurors. And jurorsâat least in theoryâmust acquit if the prosecutor fails to establish guilt beyond a reasonable doubt. As Bob Fiske declared in his closing argument, “I
tell you, Dede Brooks is a walking reasonable doubt.” Our “jury expert” (whom the jurors referred to as “Eagle Eye” because she stared at them throughout the trial) was sure they liked me and mistrusted Dede and Davidge. Subjecting myself to what could be days of government cross-examination would risk all that. And besides, I didn't remember every detail of every meeting with Sir Anthony. Each “I don't remember” would be held against me.
Ultimately, it was my decision to make. I didn't get a wink of sleep that night. In the morning, I ignored every instinct in my body and went with my legal team's recommendation. They were the experts. I put my life in their hands and did not take the stand.
In final arguments, prosecutor John Greene had one more surprise up his sleeve. He offered the jury a quote from the eighteenth-century economist Adam Smith (Bob Fiske forcefully pointed out to Judge Daniels that the economist had not testified in this trial). In his landmark work,
An Inquiry into the Nature and Causes of the Wealth of Nations,
Smith wrote:
People in the same trade seldom meet together even for merriment and diversion, but the conversation ends in a conspiracy against the public or in some contrivance to raise prices.
Despite our aggressive objections to this last-minute hearsay from what John Greene had identified as “a famous economist,” Judge Daniels allowed the off-the-wall, prejudicial quote to be read to the jury. Greene failed to explain that Smith published this baseless assertion way back in 1776 (the guy was a contemporary of Ben Franklin, not Ben Stein) and the otherwise diligent prosecutor neglected to enter Smith's next sentence into the record,:
It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice.
So even Adam Smith himself had warned future prosecutors in his very next sentence against embracing his observation out of context. In our appeal, we argued, “the Smith quotation is wholly inconsistent with, and therefore effectively misstates, the governing principles of antitrust lawâ¦the law is that neither meetings between competitors nor the exchange of information between them is per se, or even presumptively, unlawful.” The appeals court agreed with us and chastised Greene for this indiscretion, stating, “We now consider the Government to be on notice that future uses of a quotation such as the one used in this case might prove fatal to its case.” Shame on you. Just don't do it again.
We also lost on our effort to have Judge Daniels explain in his instructions to the jury that meetings between competitors are not necessarily illegal. Here's the requested instruction that was never read to the jurors:
Evidence of meetings, telephone calls, or other contacts between Mr. Taubman and Anthony Tennant and between Mr. Taubman and Diana Brooks does not by itself prove that Mr. Taubman was a participant in a conspiracy or that he had the required knowledge and intent. Competitors may have legitimate and lawful reasons to have contacts with each other or to exchange information or statements of intention. Thus you may not infer that Mr. Taubman knowingly and intentionally joined the conspiracy solely from the fact that he had meetings or other contacts with Christie's or participated in exchanges of information with Tennant.
Similarly, evidence that competitors exchanged price or commercial information or stated their intentions concerning prices or commercial terms which they have charged or the prices or commercial terms which they intend to charge does not by itself prove that someone knowingly joined a conspiracy, even if the exchange of information was done by agreement. It is not unlawful for competitors
to meet and give, obtain or exchange information on independently derived prices. Similarly, it is not unlawful for competitors to meet and discuss proposed industry laws and regulations, compliance with existing laws and regulations, issues relating to business ethics and standards, and other matters of common concern to the industry.
That's an accurate statement of the law. The government's lawyers had no objection to this guidance being added to Judge Daniel's instructions. The judge, however, stated that the jurorsâthe forklift operator, the postal worker, the deli ownerâwould have to be “out to lunch” to not understand these finer points of antitrust law already. Consequently, they never heard these critical instructions before they began to deliberate on December 4.
The deliberations weren't particularly deliberate. From the holding room we had in the back of the court, we could hear the jurors talking; not every word, but when there were loud exchanges, we could make out muffled sounds. Just before the jury returned their verdictâafter about ten hours of deliberations over two daysâwe heard cheers and applause from the jury room. I knew that couldn't be good.
As I stood in court waiting for the foreman to read the jury's verdict, I was numb. I could not believe my country was doing this to me. Despite my attorneys' optimism and assurances, I knew we had not been able to make our case. “Guilty.”
While the outcome was not a surprise, hearing that word took the breath out of me. I turned to see the look of sadness and defeat on the face of my daughter, Gayle. There was all sorts of commotion in the courtroom, but all I could see was Gayle's face and the tears in her eyes.