The surprise star of U.S.A. v. Alfred Taubman may turn out to be not Diana (Dede) Brooks, Sotheby’s former chief executive, whom the defense spent the better part of the trial’s final week attempting to portray as a sort of dominatrix in pearls and pumps, but Jade Burns. You need not feel inadequate if you’ve never heard of Ms. Burns.
She’s not a former member of Sotheby’s titled board, or the ultimate expert on Rembrandt, or the recipient of a sweetheart loan from the auction house in exchange for the opportunity to sell her grandmother’s Monet water lilies. Ms. Burns is a paralegal employed by the Department of Justice. And throughout the trial, she’s sat at the prosecution table and ably and discreetly operated one of the computers that projects Sotheby’s and Christie’s notes, memos, board minutes, consignment contracts and other documents-incriminating or not, depending on your point of view-onto a giant screen and a collection of TV monitors strategically placed around the courtroom.
Mr. Taubman, Sotheby’s former chairman and still its largest shareholder, is charged with conspiring with Sir Anthony Tennant, his opposite number at Christie’s, to fix the auction business so that clients couldn’t play the two houses against each other in search of more favorable terms.
Sir Anthony is in Great Britain, where he can’t be extradited; he’s denied any wrongdoing. Ms. Brooks has pled guilty to collusion and awaits sentencing. She hopes that in exchange for her testimony against Mr. Taubman, she’ll receive little (or, better yet, no) jail time. The jury spent the better part of Dec. 4 in deliberations, requesting documents and, before they quit for the night, a reading of the anti-trust laws.
In light of all this, Ms. Burns, the government’s last witness-showing up in the trial’s final hours and on the spur of the moment, it seemed-appears an awfully small fish. However, since price-fixing never does much to stir the imagination, the case may turn on which side seems more sympathetic to the working-class jury. And in that regard, the paralegal, who is only 24, had very little competition: There seemed to be no heroes in this trial, the witness list including its share of overcompensated and overweight middle-aged men.
Ms. Burns’ star turn came in response to a defense witness named Christine Nelson, an economic consultant who was being paid $425 an hour to testify that Mr. Taubman had done nothing wrong, based on her examination of data supplied to her by Sotheby’s and Christie’s.
The prosecution has made much of a 1993 memo in Sir Anthony’s handwriting that allegedly lays out the terms of his collusion deal with Mr. Taubman. However, in several areas where they’d agreed to stop competing-for example, in ceasing to give advances on single lots, or loans below Libor, the British equivalent of the prime rate-Ms. Nelson’s analysis proved that the deal was disregarded.
Of course, her study only examined the years 1993 to 1995-“her chart simply started too early and ended too early”-prosecutor John C. Greene charged in his summation rebuttal, rather than continuing on to 1999, when the alleged conspiracy started to unravel. She also ignored a possible logical explanation for her counter-intuitive findings, one offered by Christopher Davidge, Christie’s former chief executive, when he testified earlier in the trial on loans below Libor: namely, that “the business was improving” and that, while the sheer number of such loans might be increasing, as a percentage of all transactions it might actually be diminishing.
Finally, as the prosecution brought out on cross-examination, Ms. Nelson had no way of knowing whether the consignment contracts she studied may have been subject to pre-existing, pre-1993 agreements between the auction houses and particular clients.
When Ms. Burns took the witness stand, one couldn’t help but to compare her to Ms. Nelson, whose Goody Two-Shoes manner didn’t appear to endear her to the jury. (It’s impossible to handicap a jury, but this one has offered few signs of affection for Mr. Taubman or his team. And shortly after Ms. Nelson stepped down after parts of two days spent on the witness stand, one of the jurors instructed Scott Muller, a Taubman lawyer, to turn off a light on a projection machine that was shining in the jury’s eyes. When the lawyer promptly obeyed, the juror turned to a couple of buddies on the jury and gave them a wink and a “See, that’ll show ‘em” nod.)
Leave a person on a witness stand long enough, and they start to remind you of someone you hated in high school. And Ms. Nelson-particularly as she gamely sparred with Patricia Jannaco, the government lawyer cross-examining her-recalled the teacher’s pet who scores 100 on the math final and throws off the entire grading curve.
Ms. Burns also happens to be extremely pretty, perhaps even beautiful, though it’s hard to tell since she keeps her hair pulled back and wears those nerdy, dark-framed glasses of the sort Tina Fey sports while giving the “Weekend Update” on Saturday Night Live .
While the Berkeley philosophy major spent only a few fleeting moments on the witness stand, the government was able to get into evidence the fact that her charts covered the years up to and including 1998, unlike Ms. Nelson’s (making one wonder what she might have been hiding), and also that Ms. Burns’ data included information on sellers’ commissions, the essence of the alleged collusion between Mr. Taubman and Mr. Tennant, showing the rates had gone up.
Besides Ms. Nelson, the defense called 13 other witnesses (the government offered five), whose contributions were of a more impressionistic nature. They testified to Mr. Taubman’s excellence as a human being, even if he was a little vague on occasion, and to Ms. Brooks’ unsympathetic tendencies.
Perhaps the most damaging testimony to Ms. Brooks came at the start of the defense’s presentation, when Donaldson Pillsbury, Sotheby’s in-house lawyer, testified that he never heard Mr. Taubman tell her, as she’d claimed, “You’ll look good in stripes” during a meeting when he supposedly feared she’d squeal to the feds. Rather, Mr. Pillsbury said, Mr. Taubman actually asked rather amiably, “How do you think I’d look in stripes?”
The ultimate question, of course, is whether the jury is wondering the same thing.
Mr. Taubman is little short of Sphinx-like as he sits at the defense table, the very model of aristocratic comportment, with the jury left to connect the dots as best it can to form a picture of his personality-one that’s based mostly on the testimony of minions, some of whom had only fleeting contact with him. They painted a picture of an individual neither liked nor disliked, let alone loved or loathed, whose habits were more reminiscent of a brown bear than of a swashbuckling billionaire. (Mr. Taubman’s net worth was estimated by his lawyers during their opening statements at between $700 million and $1 billion.)
Bernard Winograd, a former executive with Mr. Taubman’s investment company in Michigan, whose holdings include Sotheby’s, testified that “he does have a sleeping disorder and can occasionally fall asleep involuntarily.”
William Sheridan, Sotheby’s current chief financial officer, volunteered that at board meetings his boss “was more concerned with what time lunch was going to be served and what was for lunch.”
Ms. Brooks, on the other hand, was portrayed as the C.E.O. from heck, if not quite from hell, a Valkyrie in a business suit. George Bailey, Sotheby’s managing director for Europe, recalled that she balked at agendas different from her own, including Mr. Taubman’s. “She’s a very emotional person,” Mr. Bailey, whose British accent was as thick as Lyle’s Golden Syrup, testified. “She used to get very upset.”
Michael Curle, a former Sotheby’s finance director for Europe, once heard her snap at Mr. Bailey, “Alfred Taubman doesn’t run this company-I do.”
And the billionaire apparently took it. “Mr. Taubman was pretty meek for a guy who owned all that stock,” Mr. Sheridan said. “He’d just crawl back into his shell.”
The central mystery of the case, of course, is who is Alfred Taubman, and why would he risk his reputation and immense wealth in something as potentially obvious as a price-fixing scheme? In answer to the latter question, lead prosecutor Greene quoted Adam Smith from 1776 (right around the time both auction houses were founded) in his closing argument, even though the defense fought mightily to prevent him from doing so.
“People in the same trade seldom meet together for merriment and diversion,” the economist observed, “but a conversation ends in a conspiracy against the public or in some contrivance to raise prices.”
And then, of course, there’s the possibility that Mr. Taubman is innocent. Sotheby’s insiders have said that his defense team’s portrayal of him as disinterested in the business isn’t a cynical tactic to save him from the slammer, but the truth. He bought Sotheby’s to mingle with lords and ladies, Kennedys and Duponts, they say, and left the nuts and bolts of crunching numbers to others. He really was out to lunch.
Mr. Taubman’s true crime, the working-class jury may decide in these patriotic times, is that he seems to have aspired to being British. It was Mr. Bailey who stated that even though he wasn’t aware that his chairman had met with Sir Anthony Tennant, it didn’t surprise him. “No disrespect to Mr. Taubman,” he stated delicately, “but he particularly enjoyed meeting people of title and position in the U.K.”
With that comment, it became clear whom Mr. Taubman models himself after as he sits there at the defense table, exquisitely well fed and beautifully tailored in his three-piece suits-not an American captain of business, but a British lord.
In his closing argument, Mr. Greene attacked what he described as the defense’s “dumb and hungry” defense, pointing out that individuals who amass huge fortunes from scratch tend to have a certain faculty for numbers. Furthermore, Mr. Taubman sat on the boards of both Chase Manhattan Bank and Macy’s. “Do you think they’d keep him on the boards if he is a know-nothing who only asked what is for lunch?” Mr. Greene inquired.
In Mr. Taubman’s defense, at the time the conspiracy is alleged to have taken place, Sotheby’s did have an excellent in-house chef. So if the chairman did often ask what was on the menu, the question may have been more a testimony to the sophistication of his palate than to a preoccupation with his animal needs.
However, Mr. Taubman’s attorney, Robert B. Fiske Jr., chose not to highlight his client’s good taste when his turn came to offer a summation. Rather, he called Mr. Greene’s remark about the “dumb and hungry” defense “kind of an insult. It’s an insult to Mr. Taubman and to the fine witnesses who came in here and testified.”
What they testified to, according to Mr. Fiske, was that his client was a good and honorable man, and that Ms. Brooks was fully capable of hatching a conspiracy on her own and had the capacity and motive to do so.
Mr. Fiske recalled his opening statement at the start of the 14-day trial, when he argued that Ms. Brooks found herself in dire straits back in 1994, shortly after becoming the C.E.O. of Sotheby’s Holdings, when a contemporary sale cratered and the price of the company’s stock plummeted, imperiling her nascent personal fortune in Sotheby’s stock options.
The case was rather quite simple, Mr. Fiske told the haphazardly attentive jury (one of whom dozed on occasion; another-fortunately an alternate-appeared to be in R.E.M. sleep). It all boiled down to whom you believed, Ms. Brooks or Mr. Taubman.
“You simply cannot believe Mrs. Brooks, and you cannot believe her beyond a reasonable doubt,” the lawyer, a former Whitewater prosecutor, charged. “She has no remorse about this at all.”
Mr. Fiske dismissed Christopher Davidge, Christie’s former chief executive and the government’s other main witness-who, along with Christie’s, received amnesty from prosecution for squealing first to the government about the alleged conspiracy-as someone who was being paid for his testimony and thus was not even worth considering. Mr. Fiske was referring to an $8 million severance package that Mr. Davidge received from Christie’s in exchange for cooperating with the government’s investigation into Sotheby’s.
“This is a one-witness case,” Mr. Fiske told the jury. “She is an admitted liar with a powerful motive,” that motive being to stay out of jail.
While Mr. Greene’s summation was as focused as a satellite-guided missile hitting an Al Qaeda cave complex-“The agreement itself is the crime,” he instructed the jury; “whether it is ever carried out, or succeeds or failed, doesn’t matter”-Mr. Fiske’s closing argument was more complicated.
For example, he reminded the jury that the only charge in the indictment concerned whether a conspiracy existed to fix sellers’ prices-not such issues as guarantees, single-lot advances or loans below Libor, describing those areas as a “side show.” But he then went on to praise Ms. Nelson, whose charts dealt specifically with single-lot advances, loans below Libor, etc., but not at all with seller’s commissions, describing her data as “unassailable.”
Ms. Burns’ brief but charming testimony, alas, wasn’t evoked by either the prosecution or the defense.
Perhaps the only masterpiece displayed at trial was a poster the prosecution created and had placed on an easel in front of the jury that showed the 12 meetings between Mr. Taubman and Sir Anthony. Though not quite rising to the level of Cubist collage, the government had cut-and-pasted the entries from Mr. Taubman’s, his secretaries’ and his handlers’ daily planners into a sort of color-field painting, punctuated with Twomblyesque scribbled references to meetings with “a gentleman,” “Tony” and, in one case, an individual denoted simply with four asterisks.
Mr. Fiske characterized the meetings as wholly above board, however. “They were social friends,” he noted-and besides, as chairmen of their respective auction houses, the two had many legitimate subjects to discuss.
No matter how the case turns out, the jury seems to be getting along famously-at least those who manage to remain sentient-and they invariably enter the courtroom chuckling over some aside one of them has made to the others.
And the members of the standing-room-only audience on the trial’s last day-reporters, lawyers and a smattering of art-world types-seem to have no particular fear that the wounds this trial opened won’t heal completely, even if Mr. Taubman’s and Ms. Brooks’ reputations lay in ruin.
“I was thinking,” said one Upper East Sider, “we should have an end-of-the-trial cocktail party with striped food.”