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 jurors—at least in theory—must 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 law…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 jurors—the forklift operator, the postal worker, the deli owner—would 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 verdict—after about ten hours of deliberations over two days—we 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.
Outside the courthouse, media gathered to report the outcome of the trial and interview the jurors, who were more than happy to get their fifteen seconds of fame on CNN. One juror, however, was reluctant to chat. Lydell Durant had held out as the one remaining “not guilty” vote until the bitter end. Crusty New York Post columnist Steve Dunleavy (I find him refreshingly irreverent) spotted Mr. Durant’s troubled expression and pulled him around the corner for an exclusive conversation. The headline on Dunleavy’s column the next day read: “In My Heart, I Don’t Believe He Is Guilty.” The troubled juror told Dunleavy, “I think it was the wrong verdict. I didn’t sleep last night; I can’t tell you what was going through my mind in the jury room, but deep down, I feel Mr. Taubman was not guilty, and I am very sad.”
Not until Christopher Mason’s book was published more than a year later would we find out what was going on in Mr. Durant’s mind in the jury room: He was being “coerced” by the other jurors. Juror Glenn Forrester proudly admitted to Mason in an interview: “We did coerce him.”
As an American, I’m sorry Lydell Durant had to face that kind of treatment by his fellow citizens. As the guy who ended up in jail because of this violation of one of our most sacred civic responsibilities, I’m even more sorry.
Along with my lawyers and family, we drove uptown to my office at 712 Fifth Avenue. Sentencing was set for April 22. We all gathered in the conference room to consider an appeal and try to make sense out of what just happened. All I wanted to do was apologize to my wife, children, and grandchildren. I was leaving them with a terrible burden. Our name—their name—had been damaged forever. My father never did such a thing to me. “I’m sorry for what I’ve done to you.”
As one, they insisted that they couldn’t be more proud of me, our name, and how I had fought the good fight. They found hope in the appeals process and professed faith and trust in our judicial system to right this wrong. I wish I could have been a
s optimistic. Our criminal justice system is the best in the world. I still believe that. But it didn’t work for me.
That afternoon I made many difficult phone calls. I wanted to resign immediately from the corporate boards I sat on and the civic organizations I helped lead. The last thing I wanted to do was to put them in an awkward position. All accepted my resignations, reluctantly and graciously, and most expressed hope that my appeal would be successful and I would be able to rejoin them. Stepping away from my role as chairman of the Taubman Company after more than fifty years was painful. It was in good hands with my son Robert at the helm. But to know that I would no longer be a part of the company I founded with my father—the company that had accomplished so much in communities across the country—was especially hard for me.
At the sentencing hearing a few months later, I was asked by Judge Daniels if I had anything to say. I had plenty to say, but there was no way I could say it to him. My lawyers had explained that anything short of a confession of guilt and an expression of remorse would be counterproductive. Here’s the catch-22: to admit guilt after defending my innocence all these months just to lessen the chances of jail time would subject me to charges of perjury.
Hey, I wasn’t guilty. And I wasn’t about to beg for mercy. Sure, I was sorry this all happened. Sorry I had ever met with Sir Anthony Tennant. Sorry I hadn’t listened to my closest partners when they warned me about Dede Brooks. Sorry Judge Daniels and the Justice Department had made it impossible for me to get a fair trial. Sorry that the talented, hardworking people at Sotheby’s had to suffer.
The probation officer’s report to the judge recommended no jail time, just probation and a fine. So I respectfully declined Judge Daniel’s kind offer and kept my thoughts to myself.
My wife, Judy, was with me and prepared for the worst. Chronicling that day in court for Vanity Fair, Dominick Dunne wrote:
Then the glamorous Judy Taubman walked into the courtroom from a door to the left of the judge’s bench, which jurors had used during the trial. It was her first appearance in the courtroom. She was perfectly dressed in beige, looking both stylish and understated. All eyes were on the international social figure. She looked straight ahead, making eye contact with no one…Then Alfred Taubman entered the courtroom from the same door. He is still massive, and wonderfully tailored, but there was a look of defeat on his face that I had not seen earlier. Before he took his seat, he went to the first row and walked down the line of his family members. Everyone rose and kissed him. When he got to Judy, she looked at him with a loving smile and stood up and kissed him on the lips. Her moment had come, and she rose to it.
Ignoring the probation officer’s recommendation, which is rare in criminal cases, Judge Daniels sentenced me to one year in prison. Upon hearing the sentence, Bob Fiske jumped up and requested that it be revised upward to a year and a day. Boy, I thought, Fiske should be on my side! As it turned out, the extra day qualified me for time-off consideration, making my time in prison more like ten and a half months. Judge Daniels accepted our motion.
A week after my sentencing, Judge Daniels let Dede Brooks off with absolutely no jail time. Her punishment: six months’ house arrest in her midtown apartment. The “flipper” had added another notch to his belt.
It was no surprise to me when our appeal to the United States Court of Appeals for the Second Circuit went nowhere. “Al, courts don’t like to overturn jury decisions, no matter how flawed,” an attorney friend explained to me. But we tried. We even added Seth Waxman, former solicitor general of the United States, to our legal team. The three-judge panel hearing our appeal found in July 2002 that all sorts of errors had been committed during the trial—all of it “harmless.” My focus now was on preparing to go to prison and somehow make the best of it.
A final thought about the trial. Much has been said and written in criticism of my attorneys’ strategy and presentation. At times I must admit I felt they were far too gentlemanly, businesslike, and cautious to connect with the jury. For example, Rosa Parks, the late, courageous civil rights pioneer, was agreeable to appearing on my behalf as a character witness at trial. I had become part of Rosa Parks’s life through a terrible incident in Detroit, where she lived from 1957 to her death in 2005. In 1994, this icon of the civil rights movement was attacked and robbed in her home. Judge Damon Keith called me the next day to see if we could arrange for safer living arrangements. Max Fisher and I immediately got her an apartment in our Riverfront Apartments and made sure she never had to worry about rent or robbery ever again. It was an honor to get to know this heroic, graceful woman and to contribute in a small way to her safety and comfort for the last eleven years of her life. Would her presence in court have made a difference? We’ll never know. My legal team considered her participation “over the top.” Looking back, I think I could have used the help.
I didn’t like Judge Daniels. But my anger against him didn’t really develop until years after the trial when I read a front-page story in the December 6, 2004, issue of the New York Times. The headline read: “Judge’s Decisions Draw Notice for Being Conspicuously Late.” Here are the lead paragraphs of the story by reporter Benjamin Weiser:
They are kept in federal courthouses across the United States, although, understandably, they are not prominently displayed: lists of cases that have dragged on for months or even years, often because a judge has failed to make a ruling.
But there is one unchallenged king of the delayed decisions: Judge George B. Daniels of Federal District Court in Manhattan, who, the latest statistics show, had 289 motions in civil cases pending for more than six months, the highest total of any federal judge in the nation.
Judge Daniels was prompt in my case. Unfair, I felt, but punctual. There was plenty of press attention to spur things along. But in cases dealing with everyday folks out of the media spotlight, his inattention has been outrageous:
There was the woman in Queens who had to fend off creditors while she waited more than three years for the judge to decide that she was entitled to her late husband’s pension benefits. And there was the prisoner with H.I.V. who filed a petition challenging his state court conviction. By the time Judge Daniels got around to issuing the order—three years later—the prisoner had died.
In comparison to how others have fared in front of Judge Daniels, I’m a lucky guy!
SEVENTEEN
50444-054
On August 1, 2002, I was supposed to report to the Federal Medical Center in Rochester, Minnesota. That’s a fancy name for a federal prison where inmates with medical conditions are held for a time before returning them to traditional facilities. The center is loosely affiliated with the nearby Mayo Clinic. At seventy-eight years old, I wasn’t in the best of health, having suffered several minor strokes and battled a number of lesser ailments. As rough as they had been with me in court, the Feds didn’t want me to die in jail.
A few days before my last day of freedom, Chris Tennyson called to alert me to a strange media request.
“Mr. Taubman, you’re not going to believe this. Several news magazines and wire services are asking what time you plan to arrive in Rochester. They want to make sure they get great photos of you checking into prison.”
What a way to make a living.
“Obviously, we don’t want to give them anything. Should we find out if there’s a back door,” asked Chris, “or maybe you show up before the sun comes up?”
I appreciated Chris’s concern. No way did I want to be on the cover of Business Week, entering prison. But I had a better idea.
“I’ll check in a day early.”
There was silence on the line. I think Tennyson had thought I’d gone crazy. After all, who would ever want to push up the date of his incarceration? After what seemed like an eternity, Chris promised to check to see if such an arrangement was possible.
The warden was happy to accommodate my new arrival date. So, on the morning of July 31, I thanked my household staff and asked them to hold down th
e fort, kissed my wife good-bye and boarded my Gulfstream IV for the less-than-one-hour flight from Pontiac to Rochester—a day earlier than anyone in the media expected (boy, were they disappointed). Accompanying me were my son Bobby and my attorney, Jeff Miro.
Most people have to think a moment before they can point to the worst day or moment of their lives. Not me. Walking through the gates of the prison I could not leave for the better part of a year was hands down the most sickening experience of my life. I wasn’t so much frightened as I was numb. I felt mentally prepared, reaching back to my years in the army during World War II for inner strength. At least no one in the Federal Medical Center was going to shoot at me or drop bombs in my direction. If this was what my government wanted me to do, I would do it, just as I had done back in 1942. I lived through that; I can live through this. That was my attitude going in.
I entered a room in the guardhouse. They took everything I had away from me, including the clothes I was wearing, and put my possessions in a box and sent them home. As I stood there naked, a guard inspected every body cavity. I was given recycled army attire to wear—no shoes, socks, or belt—and led to another room inside the compound, beyond the two forty-foot fences, which were topped with barbed wire. These towering barriers were separated by an asphalt drive. A security vehicle constantly patrolled between the fences, just in case some unlucky inmate made it past the inner fence.
I was directed to change into another outfit of army surplus garb. This time they did allow me to wear ill-fitting slippers. In still another building, I was taken to a downstairs room where I was photographed, issued the number 50444-054, and outfitted in a better-fitting shirt and trousers, along with underwear, socks, and shoes.
Threshold Resistance Page 18