by Peter Murphy
‘Doesn’t everybody?’ Pratfall counters.
‘No doubt,’ Julian continues. ‘Do you also look for pieces that match the curtains?’
‘Oh, really, your Honour,’ Susan protests. But she sounds a bit half-hearted. Julian’s question is a bit cruel, but there is no one in court who doesn’t enjoy it.
‘I think the quality of the work is the most significant factor in my purchases,’ Pratfall replies defiantly.
‘And by “quality”, you mean that the painting is pretty and looks old?’
‘If it’s an old painting, sure. But I don’t buy only old paintings.’
‘So, your taste is more eclectic?’
‘How’s that now? Ec… what?’
‘It doesn’t matter. Let’s talk about this painting in particular.’
‘All right.’
‘You thought this painting looked pretty, did you?’
‘I did.’
‘And it looked old?’
‘It sure did.’
‘And, when my learned friend asked you what Mr van Planck had said about this painting, you said this, did you not? “I asked him if it was for sale. He said it was. I asked him what it was, exactly. He said that it was the ‘Woman drinking Wine with a Drunken Soldier’, by Gerrit ter Borch, circa 1658–1659.” Do you remember saying that?’
‘I do. Those were his exact words.’
‘Were they indeed?’
‘They were, sir.’
‘All right. I will come back to that in a moment. There was something else you said to my learned friend. I hope I wrote it down word for word.’ Julian makes a show of finding the exact place in his notebook. “Mr van Planck is an art dealer. He’s the expert. I’m not. He had been recommended to me. I trusted him, and I relied to my detriment on the false representation he made to me.” Have I got that right? Is that what you said?’
‘That is correct, sir.’
“‘I relied to my detriment on the false representation he made to me.” As a lawyer, Mr Pratfall, do those words have any particular significance for you?’
‘Significance?’
‘Have you come across them anywhere before?’
Pratfall appears to be thinking again, his eyes raised towards the ceiling.
‘It is possible.’
Julian nods and turns to look briefly at the jury. ‘You see, Mr Pratfall, I suspected that the law in California is not all that different from our law here, so I took the liberty of doing a little research. I found that in California, as in England, two things are required for fraud: there must be a false representation and the victim must rely on it to his detriment. Does that refresh your memory at all?’
‘That may well be so. As I said before, Mr Blanquette, I don’t really –’
In a dramatic gesture, Julian holds up a hand, which has the effect of cutting Pratfall off in mid-sentence.
‘Oh, no, please, Mr Pratfall, don’t remind us that you don’t do “this kind of stuff”.’
‘He didn’t say that,’ Susan almost shouts.
‘He was about to,’ Julian insists.
‘Sustained,’ I say.
‘Yes, your Honour. My point, Mr Pratfall, is that fraud doesn’t occur only in criminal cases, does it? I’m sure you have encountered fraud in the commercial cases you do?’
‘I’m sure I have.’
‘I’m sure you have. And the reason you chose those words – very carefully, I suggest – is to make the jury believe that you have been the victim of fraud.’
‘I have been the victim of fraud,’ Pratfall insists.
‘Well, let me ask you about that. Mr van Planck did not tell you that this painting was “Woman drinking Wine with a Drunken Soldier,” did he?’
‘He certainly did, sir.’
‘What he explained to you was that this was an original painting of the School of Gerrit ter Borch, based on the “Woman drinking Wine”. Isn’t that right?’
‘The School…?’
There is a lengthy silence, and it seems unlikely that Pratfall is going to respond any time soon.
‘You really don’t understand what I mean, do you, Mr Pratfall?’ Julian asks.
‘He told me the painting was genuine,’ Pratfall insists.
‘“Genuine” or “original”?’
Pratfall shrugs. ‘One or the other. “Genuine”, I think.’
‘You were happy to buy the painting because it was pretty and it was old, Mr Pratfall, isn’t that the case? There was no fraud here.’
‘As long as it was genuine,’ Pratfall replies.
Julian nods. ‘Just one more thing, Mr Pratfall. Are the paintings you keep at home insured?’
‘Yes, of course.’
‘For their full value?’
‘Certainly. Why wouldn’t I insure them for the full value?’
‘No reason at all,’ Julian reassures the witness. ‘I am not suggesting otherwise. But when you do that, you have to tell the insurance company exactly what you have, don’t you?’
‘You have to make a full disclosure, of course.’
‘Of course. And in the case of something particularly valuable, the insurance company might send someone to inspect the piece in question, might they not, to verify what you have told them?’
‘Sure. I’ve had that happen once or twice.’
‘Thank you, Mr Pratfall,’ Julian says, smiling as he resumes his seat.
Susan re-examines briefly, and Elmer G. Pratfall leaves the witness box to sit in the public gallery.
The prosecution’s expert, Dr Smalling, is not available this afternoon, because he has been speaking at a conference of some kind in Florence, but I am told there will be no difficulty in starting on time tomorrow morning. We adjourn. I retire to chambers, hoping to hear something about Bob’s investigation, but nothing is forthcoming, and I wend my way home.
* * *
Tuesday morning
Dr Edgar Smalling is a short, elegant man clad in a dark grey, three-piece pin-stripe suit, white shirt and red tie. Susan is anxious to impress the jury with his credentials, and he gives them a comprehensive history of his academic prowess, his experience and his publications, at the end of which no one could reasonably doubt his qualifications to speak about art in general and Dutch art of the seventeenth century in particular.
‘With the usher’s assistance,’ she continues once we are all duly impressed, ‘may the witness please be shown Exhibit one?’
Dawn and the CPS factotum have got their Sotheby’s routine down by now, and they whisk Elmer G Pratfall’s purchase across the courtroom to the witness box before you can say Gerrit ter Borch.
‘Have you had the opportunity to examine Exhibit one before coming to court today?’
‘Indeed I have,’ Dr Smalling replies. ‘I have examined it on a number of occasions.’
‘Is Exhibit one the painting known as “Woman drinking Wine with a Drunken Soldier”, by Gerrit ter Borch, circa 1658–1659?’
Dr Smalling smiles. ‘No, it most certainly is not.’
‘What is it?’
‘It is a rather indifferent copy of ter Borch’s painting of that name.’
‘Done by whom?’
‘I don’t know.’
‘And when you use the word “copy” do you mean to imply that this is a more modern production?’
‘No, not necessarily. It could be more or less contemporary.’
‘In other words, it could be mid- to late seventeenth century?’
‘Yes.’
‘Now, Dr Smalling, would you explain to the jury, please, why this painting is not “Woman drinking Wine with a Drunken Soldier”, by Gerrit ter Borch, circa 1658–1659?’
Julian is on his feet.
‘Your Honour, I have no objection to Dr Sma
lling being asked to explain that to the jury, but can I just make it clear that there is no dispute about it at all. The defence is prepared to agree it. Our position is that Mr van Planck has never claimed Exhibit one to be “Woman drinking Wine with a Drunken Soldier”, by Gerrit ter Borch, circa 1658–1659.’
‘I am obliged to my learned friend,’ Susan replies. ‘But it is relevant for the jury to hear why Dr Smalling holds that opinion so that the jury will understand the full extent of the fraud.’
‘Alleged fraud,’ Julian insists.
‘My learned friend will have the chance to cross-examine,’ Susan replies.
‘Yes, all right,’ I say, ‘let’s not squabble. You’re perfectly entitled to ask him about it if you wish.’
‘Thank you, your Honour. Dr Smalling?’
Dr Smalling puts on his reading glasses, bends forward and peers at Exhibit one on the easel at his side.
‘Firstly, and most obviously, it is well-known that “Woman drinking Wine with a Drunken Soldier”, by Gerrit ter Borch, circa 1658–1659, is in a private collection. With a work of such importance, if it were to be sold at auction, or even stolen, it would become generally known immediately. In addition, I checked on the original when I was asked to give an opinion in this case, and the original is exactly where it should be.’
‘Thank you,’ Susan says. ‘And have you brought with you a glossy print of the “Woman drinking Wine”, taken from a book you yourself wrote on the Dutch art of the period?’
‘I have.’
‘Exhibit two, please, your Honour,’ Susan says. ‘There are copies for your Honour and the jury.’
In no time at all, Dawn has distributed the prints. Their quality is very good. Even from a print, the contrast with Exhibit one is all too obvious.
‘In addition,’ Dr Smalling continues, ‘the quality of this painting, Exhibit one, is not good at all. It is certainly not by ter Borch. You can tell just by the brushwork. That is obvious to anyone familiar with the work of the period, even on a casual inspection.’
‘So it follows from what you say, does it not, Dr Smalling, that if anyone knowingly represented this painting to be “Woman drinking Wine with a Drunken Soldier”, by Gerrit ter Borch, circa 1658–1659, such a representation would be false?’
‘Yes, it would.’
‘Are you in a position to say what this copy would be worth, if sold on the open market?
Dr Smalling thinks for a moment or two. ‘Well, of course, at the end of the day all art is worth whatever someone is prepared to pay for it. If you like a painting and very much want to acquire it, you may even be prepared to pay more for it than a dealer would ask for. That, of course, explains the inflated prices one often hears about when works are sold at auction. In my opinion, a dealer might offer this for a thousand pounds, perhaps even two thousand if he was feeling lucky. Personally, if I were to buy it – which I would not – I would think that five hundred pounds would be more than adequate.’
‘What about fifty thousand pounds?’
‘Ridiculous. Out of the question.’
‘Thank you, Dr Smalling. Please wait there. I am sure there will be further questions for you.’
Before the further questions, we take a short break at the request of the jury, who no doubt feel the need for some strong coffee to fortify them before they listen to any more about the merits and shortcomings of Exhibit one. Julian knows that he is dealing with a dangerous witness, and seems to have an air of unusual gravity about him.
‘Dr Smalling, the seventeenth century is considered to be the Golden Age of Dutch painting, would you agree?’
‘I would agree with that, yes.’
‘In addition to the large number of talented artists, there was a huge demand for art in the Netherlands, wasn’t there?’
‘There was indeed.’
‘It was a time of national prosperity?’
‘Yes. The Dutch were very successful in trade at the time. Their economy was flourishing.’
‘Yes, and one way for prominent citizens of the time to display their wealth was to buy original works of art to hang on their walls at home. Is that right?’
‘Yes.’
‘Rather as many Americans do today?’ Julian adds with a mischievous glance towards the jury. Elmer G Pratfall sniffs audibly from his seat in the public gallery.
‘Rather as people do everywhere, in my experience,’ Dr Smalling counters, ‘if they have the money.’
‘Yes. So there was a huge market for art, wasn’t there? I believe I read somewhere that between five and ten million works are estimated to have been produced during the period.’
‘I wouldn’t doubt that at all,’ Dr Smalling replies, ‘but very few of those have survived, relatively speaking.’
‘Well, we will come to that in a moment,’ Julian says. ‘But first, let’s look at this through the eyes of the artist. Assume with me, Dr Smalling, that you are a talented artist working in Amsterdam in – let’s say – 1659. You create a work of art. It doesn’t matter what it is, but let’s say it depicts a woman drinking wine. With me so far?’
‘I’m with you.’
‘Good. You show the work, everyone loves it, and a wealthy burgher buys it to hang on his wall. He invites all his friends and neighbours round for drinks so that they can admire it too. And what do you think happens next?’
Dr Smalling smiles. ‘I can tell you exactly what happens next. Some of the friends and neighbours call on the artist to commission him to paint something for them.’
‘Exactly,’ Julian exclaims with a flourish.
‘But the only original work is the one the artist sold to the wealthy burgher.’
Julian holds up a hand.
‘Don’t get ahead of me, Dr Smalling,’ he smiles. ‘We will get there, I promise you.’
Dr Smalling raises his hands. ‘All right.’
‘In many cases,’ Julian continues, ‘the neighbours wouldn’t be satisfied with just commissioning work from the same artist, would they? They would want to have the same painting as their neighbour, so that they could show off to everybody that they had just as much money, and just as much good taste.’
‘Absolutely,’ Dr Smalling agrees, ‘and the artist would create a work for them, but he would make slight differences and he would give it a different title, and everyone would be happy.’
‘Yes. The neighbours would be happy because they had essentially the same painting as their wealthy friend. The artist would be happy because he was maximising the commercial value of his work, and making more money than if he had only produced the one work?’
Dr Smalling seems unsettled by this. ‘Well, I suppose you could put it like that if you wanted to be crude about it.’
‘How would you put it?’
‘I would say that, in that day and age, it was a way, perhaps the only way, for the artist to spread the word about his work and widen his sphere of influence.’
‘Fair enough,’ Julian agrees with a smile. ‘But let’s be honest. He would also make more money. Nothing wrong with that, is there? We don’t want all artists to starve to death in garrets, do we?’
‘Of course not.’
‘All right,’ Julian looks down at his notes for several seconds. ‘Now, let’s talk about Gerrit ter Borch. He was a very talented artist, who flourished in the mid-seventeenth century, is that right?’
‘Yes, that is correct. To give him his full name, he was Gerrit, or Gerard, ter Borch the Younger.’
‘Yes. And in the period around 1658 to 1659, he painted “Woman drinking Wine with a Drunken Soldier,” yes?’
‘Yes.’
‘And to make it clear again, whatever Exhibit one is, it is not “Woman drinking Wine with a Drunken Soldier”, and we know that because “Woman drinking Wine with a Drunken Soldier” is in a private collection.
’
‘Among other reasons, yes.’
‘Yes. But that leaves us with the question of what exactly Exhibit one is. I think we are agreed that it may well be roughly contemporaneous with “Woman drinking Wine with a Drunken Soldier”?’
‘I certainly could not dispute that.’
‘Would you also agree that, if it is roughly contemporaneous, whoever did this painting was aware of “Woman drinking Wine with a Drunken Soldier”?’
‘Yes, I would agree. The influence is obvious.’
‘I want you to look at another print, Dr Smalling, if you would. Exhibit three, your Honour, please. Again, there are copies for the court and the jury.’
He waits for Dawn to make her rounds.
‘This is taken from a catalogue published by the Sinebrychoff Art Museum in Helsinki, a part of the Finnish National Gallery.Are you familiar with that Museum?’
‘Yes, of course. I have given lectures there several times. I am also familiar with the painting shown in the print.’
‘Would you tell the jury what it is?’
‘It is a piece by Gerrit ter Borch entitled “Young Woman with a Glass of Wine holding a Letter in her Hand”. It is dated around 1665.’
‘Is that an original painting, in your opinion?’
‘Yes, of course it is.’
‘Thank you, Dr Smalling. Now, the jury will see, if they compare Exhibits two and three, that there some very obvious differences – notably the absence of the drunken soldier – but nonetheless, it is very much the same painting, isn’t it?’
‘It is obviously based closely on the earlier work, of course. The other obvious difference is that the woman is on the right of the picture rather than the left.’
‘Yes, and in fact, what we are looking at here is an example of the artist making the most of his work, both artistically and financially. Would you not agree?’
‘Yes, I think the painting’s provenance confirms that.’
Julian takes a deep breath.
‘Now, Dr Smalling, let me come to the core of what I want to ask you. There were some artists who had schools, weren’t there?’
‘There were.’
‘Please explain to the jury what is meant by a “school” in this context.’