Electroboy (24 page)

December 5, 1993. New York
.

The day before the trial I go to Carappan, a downtown spa, for a massage, to relax and psych myself up for the big battle. The masseur tells me that he can’t work on me until I relax and take a few deep breaths. He asks me if I’m feeling
particularly
tense. I tell him I’m facing twenty-five years in jail so I am having a
particularly
hard time relaxing. He doesn’t seem to believe me and laughs. Honest, I tell him. Counterfeiting. There’s an odd silence. I feel his hands working on my lower back squeezing the tension up through my shoulders and neck and pushing it out through my head. Breathe. I imagine I’m on the set of a game show where the judge is the host and Kostabi and I are the two contestants. The judge goes back and forth asking us trivia questions about the case. “Mr. Kostabi, how many of your paintings were sold at Christie’s last year?” he asks. “Twelve?” Kostabi asks. “No, sorry,” says the judge. “Mr. Behrman, how many lithographs did Kostabi World publish last year?” “Six,” I answer. “That’s right,” he says. I’m ahead. The judge asks eight more questions, and I beat Kostabi 8–2. I’m surrounded by a border of flashing lights and I’m jumping up and down and the audience is cheering for me and it’s obvious that I’m the champion. And the masseur’s hands are working on my head, relieving all the pressure, and the lights are flashing and I wake up and I’m totally relaxed. Where’d I go? I won. I’ve been acquitted.

December 5, 1993. Edgewater, New Jersey
.

I’m sleeping at my parents’ new house tonight. I feel revved up, like it’s the night before a big field trip to the Museum of Natural History. Except this one’s to the Federal Courthouse in Brooklyn to see a real trial with a judge in a black robe with a gavel. And I’m in this courtroom drama—I play the role of the defendant.

December 6, 1993. Brooklyn
.

I decided yesterday that I will not wear a suit in court, just a navy blue blazer and a pair of gray flannel pants. I feel it makes me less slick, more innocent. The drive to the courthouse with my parents is somber. I feel like we’re on our way to a funeral. It’s a bleak day, and there don’t seem to be many subjects that are safe to talk about. My father gives me a pep talk as we get closer to Brooklyn. “You’ve got the best lawyer. He’s ready for them,” he tells me. As
we get out of the car and approach the Federal Courthouse, my mother’s tiny hand squeezes my hand tightly and she tells me to be strong. Just be strong. We walk into the courthouse at ten minutes before nine and find the massive courtroom, where I can see through the windowpane of the door many of my friends, including Lauren, Jonathan, Lucy, Deb, Paul, Ken, and Pamela, and my parents’ friends, already seated. My parents both hug me before we enter the courtroom. I sit to Stuart’s right at the defense table, trying not to stare at the young prosecutor, and Mark and his brother sit across the aisle. Indrek is grinning at me, thrilled to see me in court. I’m most glad that Jonathan is here; he gives me a tremendous amount of strength, like an older brother. We wait for the judge to arrive. I try to avoid turning around and looking at my parents and friends, but knowing that they have come to support me gives me a sense of comfort. The door behind the judge’s bench opens, and Judge Eugene Nickerson, a sprightly white-haired man in his seventies, walks in. Everyone in the courtroom stands, then sits down, and I feel my blood pumping. I’m ready to win. The judge greets everybody with a friendly “Good morning.” So far so good. Maybe we should all just shake hands and go home. Jury selection begins. It’s an agonizing process in which both sides interview more than thirty potential jurors for approximately ten minutes each. I take voracious notes and mark the jurors that I like and dislike for Stuart to see. I don’t like the guy who works for the post office and owns the Picasso print. Scratch him. I like the guy who takes art classes. I like the Lithuanian woman who paints as a hobby. Suddenly I’m an expert in choosing a jury. After about five hours we finally narrow it down to twelve. We’re ready to start the trial.

I sit in the courtroom waiting for the trial to begin, searching around the room, trying to avoid making eye contact with anyone, especially anyone from the prosecution team, being careful not to look at the jury too much. I realize for the first time that the government is extremely serious about prosecuting me. They’ve flown in witnesses from Los Angeles, Paris, and Tokyo to testify against me, including former friends from Kostabi World. They’ve
turned what my attorney feels should be a civil case into a criminal one. And the only reason I can think of that they’ve made such a big deal about prosecuting me is that the climate in the art market is just peaking and they know this will get a lot of media attention. There are reporters from newspapers and magazines ready with their pads to take notes. I nervously doodle the words
federal case
on my legal pad. I realize that I am not on a field trip. But it all seems so unreal—this courtroom scene has the color and clarity of a made-for-TV movie.

The prosecutor, Jonathan Polkes, looks like he is in his late twenties. Probably a classmate of some of my Wesleyan friends. Short and squishy-looking, with glasses. His mother comes with a friend to watch her son at the trial. They sit up close. This makes me want to puke. The two attorneys are huddled in a conference with the judge when Stuart says he wants to introduce Kostabi’s arrest record, for his fight with Morton Downey, Jr. “On what theory?” asks Judge Nickerson. “Mr. Kostabi, who admittedly is someone who believes that generating bad publicity is good for his business—I believe that is very relevant in his motive to what he has done in pursuing this case against Mr. Behrman, including giving testimony in this case,” says Stuart. The judge does not allow this as evidence.

Polkes attempts to present a simple case of fraud, in which a defendant who has exploited his position at Kostabi World takes tremendous advantage of dealers and galleries to sell unauthorized paintings created by a Kostabi World employee. He details the counterfeiting process fairly well and explains the logistics of the deal making and negotiating: “You’re going to learn that Andy Behrman didn’t only confess to his friends Lis and Jessica what he was doing on one occasion, he had a big mouth and couldn’t stop telling his friends Lis and Jessica what a great thing he stumbled onto. He told them, virtually every day for six months, every detail of the scheme as I have explained it to you, and that’s how we know all about what happened. He’s going to tell you how he thought it was such a brilliant idea that he and Brandt would create the fakes, which is his word for them, forging signatures on
them to Kostabi customers, and how much money they were making. You’re going to hear that from the mouths of his own two friends, Lis and Jessica, who will testify for you during the course of the trial.” This doesn’t feel like a good start for us. It’s Stuart’s turn to do some damage control. He stands up, walks around the defense table, and looks at the jury. “The evidence will show you that the engine that is driving this case is Mark Kostabi, vindictive allegations, and, I submit, the evidence will show to you, totally unjustified allegations of Mark Kostabi are what brought the case here. Mr. Polkes indicated that he [Kostabi] is going to be portrayed as some sort of victim. I submit, ladies and gentlemen, the evidence will show you he’s no victim at all. One thing that I agree with the prosecutor about—there was fraud going on in this case. Yes, lots of fraud, and you’ll see where the fraud was. The fraud was in the house of the man named Mark Kostabi, who I guess also has the name of Kalev Mark Kostabi, but he usually calls himself Mark Kostabi. That’s the fraud. You will hear similar things about Mark Kostabi that the prosecutor didn’t mention to you in his opening statement. That Mark Kostabi is a man who describes himself as a con artist. He is a person who says that only suckers buy his paintings and that you have to be a total fool to buy one of his paintings. That’s the victim of this supposed fraud. In fact, ladies and gentlemen, the evidence will show you that Mark Kostabi is not an artist at all. Of all the frauds and cons going on here, the biggest one of all is this notion that the prosecutor made that there is such a thing as a fake Kostabi. To use a big word that I hate to use in courtrooms, that’s an oxymoron. It’s a contradiction in terms. It’s silly. There is no such thing as a fake Kostabi. Why, ladies and gentlemen? The evidence will show you how Kostabi works. He doesn’t paint anything. He doesn’t think anything up. He hires people who think up ideas, make paintings, and he makes lots of money from them. There are no fakes, ladies and gentlemen. The evidence will show you that the paintings that are at issue in this case are no different from all the other Mark Kostabi paintings that Mark Kostabi sold and made lots and lots of money from. You heard that right, ladies
and gentlemen. He didn’t paint these. He didn’t think them up. They weren’t his ideas. He hired idea people who came up with ideas. He hired painters who painted them, and he made lots of money from that. In fact, ladies and gentlemen, the evidence will show you—the prosecutor didn’t mention this—that Mr. Kostabi even acknowledged in writing that the paintings that are at issue in this case were Kostabi paintings. That’s right, ladies and gentlemen. He acknowledged in writing, he wrote to people, that these were his paintings. The evidence is going to show you, ladies and gentlemen, that Andy Behrman is not guilty of any fraud. The only fraud that’s going on here is Mr. Kostabi.”

The first witness called by the government is Mitsuna Kawamura, whose testimony has been videotaped, since she could not attend the trial. She is the representative of Art Collection House in Tokyo, from which the government has recovered thirty-four unauthorized paintings, which have been entered as government evidence. She was my contact in Tokyo, and all of my dealing with Art Collection House went through her. She appears frightened to be testifying. The prosecutor quickly leads her through explaining that the gallery issued directly to me, for counterfeit work, two checks totaling $21,000, and an undisclosed amount of cash. Stuart, who is also present at the videotaping, makes a point that more than $200,000 was wired directly to Kostabi World, for legitimate work I sold to them.

Kostabi is the next witness. As he approaches the stand and sits in his seat, there is some whispering in the audience and I take a deep breath. I’m frightened to be in the same room as him and angry that he’s taken the case this far. I keep my eyes focused on the prosecutor and just listen to Kostabi’s voice. Polkes asks him about the counterfeit paintings in Tokyo and how he handled the situation with Art Collection House, which was afraid that clients would find out about forgeries in Japan and the reputation of the company would be destroyed. When discovering the “unauthorized” paintings, he jointly came up with the idea of sending handwritten letters with Art Collection House to buyers telling them that their painting was one of his favorite images and
that he wanted to publish it in an upcoming book, but that he wanted to rework it to make it even better. “What did you do to them specifically?” asks Polkes. “I changed the signatures on the front. I changed the signatures on the back. In some cases I made drawings on the back. And I changed the title,” answered Kostabi. There is some snickering in the courtroom. He is extremely agitated. I know he’s going to have difficulty handling the cross-examination. Stuart starts by making reference to a
Village Voice
advertisement in which Mark refers to himself as the world’s greatest con artist but also as somebody selling original forgeries. This puts Kostabi on edge. “Did you ever get someone to sign, a stand-in to sign?” asks Judge Nickerson. “No. I never hired anyone from this ad to fill this job description,” says Kostabi. “Could you read the ad for the jury, Mr. Kostabi?” asks Stuart. “It says: ‘Stand-in for Mark Kostabi, must sign paintings, autographs and sketches. Must give interviews and make public appearances. Must be willing to change hair color monthly. $3.75 an hour plus benefits. Hours vary, age range 18–21 preferred, M or F’—meaning male or female—‘to Mark Kostabi, Inc., 361 West 36th Street, 3A, New York City 10018, attention personnel.’ ” Interestingly, on cross-examination Mark is not entirely certain of his signature on each painting. “If that’s a Kostabi signature, it’s a very poor one,” he says. “It doesn’t look like a good Kostabi.” There is some laughter in the courtroom. Now Stuart questions Mark about my role at Kostabi World. “He was a very effective salesperson, was he not?” Kostabi answers, “That’s a matter of opinion. I would have to say—he generated sales, but no, I wouldn’t call him effective, no.” “Isn’t it a fact that he generated certainly hundreds of thousands of dollars in sales, if not millions of dollars in sales?” asks Stuart. “He’s a criminal. I—” says Kostabi. Judge Nickerson gets angry and raises his voice: “No. Look, don’t. Please.” “Okay. I’m sorry,” says Kostabi. “Listen to me,” Judge Nickerson says. “Don’t volunteer things like that. Did he, all you have been asked now is, did he generate hundreds of thousands of dollars, maybe millions of dollars’ worth of business for you, for Kostabi World?” “Yes,” answers Kostabi. Stuart grills Mark on cash payments that I picked
up for him in Japan, but Mark denies that this ever occurred. In fact, he denies all cash payments from dealers. He seems confused. He doesn’t see what Stuart is driving at. The point is clear. Any cash that I did pick up I often turned over to him. It’s quite possible the cash payments from Art Collection House were also paid to him. “Now you stated that the—what you have described regarding these paintings had an effect on your reputation as an artist? I believe you said it had damaged your reputation?” asks Stuart. “Yes,” responds Kostabi. “Isn’t it a fact, sir, that your reputation is as a con artist, not as an artist?” he asks. “My reputation among my clients was damaged. I—I was—I wasn’t referring to the general public who watches shows like
Lifestyles of the Rich and Famous,”
says Kostabi.

December 7, 1993. Brooklyn
.