IT WAS OVER. In November 2010, Simon withdrew his lawsuit, saying that he no longer had the financial resources to continue. In a statement made to the press on 15 November, he spoke with a dignity laced with bitterness, of his sadness at not being able to reveal the truth in court. Faced with threats of bankruptcy, continuing personal attacks and counterclaims, he had no choice but to sign the document that brought the case to a close:
There was, I believe, virtually no limit to the amount of money the Foundation was willing to spend to ensure that this case could never come to trial. When my legal representation [Redniss] asked to withdraw from the litigation due to the enormous workload created by the mountains of extraneous motions consciously filed by the Foundation’s legal team, I was forced to accept the reality of my position.
The Foundation required Simon to sign a document affirming that he had never been aware of any evidence that the defendants had ‘engaged in any conspiracy, anti-competition acts or any other fraudulent or illegal conduct in connection with the sale or authentication of Warhol artwork.’ Simon added that he had ‘not agreed to deny the authenticity of the Red Self-Portrait, as originally demanded by the Foundation.’ He ended by thanking his supporters and asking ‘those curators and scholars who supported me in private, but who were unable to speak out while the case was ongoing, now to come forward.’ That last bit was hot air. No art historian could come forward unless they were able to read key depositions and transcripts taken during the pretrial hearings.
But, Simon being Simon, he kept a clear head and his focus on the future. Even at this time of unimaginable pressure and emotional turmoil, he set to work. I always thought Simon a person of exceptional talent, but what he did next showed a strength of character I’d not appreciated before. What set the events I’m about to describe in motion was a single sentence that lawyers for the Foundation insisted on inserting into the settlement Simon had to sign. It stipulated that, if in future the case ever came to trial, Magistrate Judge Peck would be presiding.1 That turned out to be a serious tactical error.
The presiding judge was the Honorable Judge Laura Swain, the judge who, at the start of the proceedings, allowed Simon’s complaint to be heard by the court. Conscientious and methodical, she was well known for her attention to detail. Had the case come to trial, it was she who would have heard the arguments and made the final ruling. But she had not been present at the pretrial procedures, even as an observer, so was unlikely to be aware of the ongoings and perceived failure to compel disclosure and produce witnesses. By stipulating that Peck should preside over any future court procedure, the Foundation made it obvious that Peck was a judge they could work with. Did they really believe that Judge Swain would not notice?
Meanwhile, without telling anyone what he was about to do, Simon wrote an eighteen-page letter to Peck, dated 5 November 2010. On page two, he explained its purpose: ‘I have kept to the high ground despite the vicious personal character assassination I have faced from the defendants. So I am writing this letter in an attempt to redress the balance with real facts.’
The letter reviewed the case, point by point, refuting the Foundation’s false allegations: that he did not own the picture; that he had faked the ‘Dollar Bill’ piece; that he was a criminal wanted by Interpol. Every point was backed up with documents, each labelled as an ‘exhibit’. I cannot say what happened to the letter Simon wrote. I can only say that it is not in the case file docket and that Simon believed it was legally excluded or perhaps destroyed or mislaid – as was all supporting documents he had asked Peck to preserve. Simon worried that something like this might happen, and so, in what I can only call a stroke of genius, he also sent a copy to Judge Swain.
Laura Swain, in turn, acted swiftly and decisively. She placed the letter and the supporting material in the public domain by filing everything at the United States Courthouse in Pearl Street, Lower Manhattan. Because she did this, the papers sat in the Pearl Street archive for several years, a time bomb waiting to explode in the Foundation’s face.2 Thanks entirely to her action, historians, students and scholars are able to learn what really happened, not what Gravante, Wachs and Boies said happened.
All that would come later. In the autumn of 2010, it looked to me as though the Foundation had won, hands down. Joel Wachs and the Foundation’s chairman Michael Straus could now sit back, open a bottle of champagne and savour their victory.
But that was not enough. Not long after Simon’s capitulation, Wachs made a momentous decision. The Foundation would call the public’s attention to the issue over which the lawsuit would have been fought if it had gone to court: the authorship of the Red Self-Portrait. Wachs was at it again. The issue of authentication was dead; Boies Schiller Flexner had buried it in concrete and dropped it into the East River. It slept with the fishes, and now Wachs wanted to give it the kiss of life. The Foundation, in all its pride and pomp, then summoned the world’s media to join Wachs and Straus in a good gloat.
I could hardly believe what was happening. At a stroke, hope revived that I would have another chance to learn what the Andy Warhol Art Authentication Board had been up to, and with luck to engage the Foundation in a genuine debate. The most improbable chapter in what I had come to think of as the Warhol saga was about to begin.