The Star Expert in the Pre-Columbian Artifacts Affair

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Saturday, April 9th, 2016
The Star Expert in the Pre-Columbian Artifacts Affair

The Pre-Columbian Artifacts case had already been tried and appealed once before I ever became involved in it. The Defendants had all been convicted, both of transporting the artifacts in international and interstate commerce and of conspiring to do so. The Fifth Circuit had sent the case back to Judge John H. Wood of the United States District Court for the Western District of Texas for retrial, because of an error in his instructions to the jury on the Mexican law concerning “National Monuments” in the first trial.

My client, a young man from Tennessee who was the beneficiary of a trust fund that had been exhausted by the time of the retrial, was unable to afford counsel to represent him this second time around. Judge Wood appointed me to represent him. With two exceptions, all the others were represented by the attorney who represented them in the first trial and appeal. One of those had not been arrested at the time of the first trial, and the other had decided to represent himself the second time around. As it turned out, the defendant who was not involved in the first trial was also not involved in the second, as he was found to be incompetent to stand trial. Before that determination was made, though, his (also court-appointed) attorney, Tom Sharp, was of invaluable assistance to those defendants and their attorneys who did go to trial, because of his devotion to duty and attention to detail.

Tom (since, tragically, dead in his early fifties of a brain tumor), with his outstanding preparation on the law and the facts and, in particular, his work in locating an expert on Mexican law to assist defense counsel and testify at the trial, convinced me forever that a good trial lawyer, properly motivated by a sense of responsibility to the client and the court, can handle whatever case comes his way.

The defendants in the case were all very normal people—with no prior involvement with the law—who steadfastly maintained their innocence of any wrongdoing. The government’s evidence began with the fact that it had been brought to the attention of the FBI that a group of people had a quantity of terra cotta pre-Columbian artifacts on display at a motel in San Antonio. An employee of the Mexican government working at the San Antonio branch of the Universidad Nacional Autonomico de Mexico (UNAM) had been to the motel and seen the display and contacted the FBI immediately thereafter, concerned as to how such an extensive display could be in private hands, given the then current state of the Mexican Law.

It was the position of the Republic of Mexico, as fully expounded by government lawyers associated with the Instituto Nacional de Antropologia e Historia (INA) in Mexico City, that Mexico had over 40 years earlier declared national ownership of all pre-Cortesian artifacts not already in private ownership and possession. (Mexico dates such artifacts with reference to the arrival of Hernan Cortes in 1512, and not Columbus’ arrival in the New World in 1492. Given the virtual irrelevance of Columbus to Mexican history and the central position occupied by Cortes, the approach seems more than reasonable.)

By other enactments, the Mexican government representatives testified, the exportation of such items from Mexico without the express permission of the Mexican Government was outlawed—and permission had never been granted to anyone other than museums and universities to export them. The law was designed, they made very clear, to preserve the national patrimony of Mexico, and to prevent the looting of ancient ruins and burial grounds.

The American government, for its part, took the position that transporting these items across the USA–Mexico border, in view of the status of Mexican law, constituted theft. Thus, said the Justice Department, transporting the items in international or interstate commerce constituted a violation of the National Stolen Property Act, which prohibits so transporting stolen property.

To avoid clogging the Federal Courts with small cases, Congress set a minimum value of $5,000 on stolen property before the case could be heard in Federal Court. To prove the property was worth at least that much, the prosecution had lined up an internationally recognized archaeological expert on pre-Columbian artifacts, who assured that the value of these artifacts far exceeded that minimum value, and in fact exceeded $100,000.

The artifacts had been brought to San Antonio by an aging California widower, who had no luck in selling any significant amount of the items before he had to return to California. By the time he left, he had struck up a relationship with a San Antonio salesman, and the salesman had convinced him that he’d have a better chance of selling them if he left the artifacts in San Antonio, where, the salesman assured him, he’d be able to find buyers.

The artifacts were left in San Antonio, and the salesman in turn got a Houston woman (who had once lived in Central America and knew something about artifacts), the young man from Tennessee (who had a few dollars to spend in flying himself and the salesman around the country with samples, trying to interest buyers), and the salesman’s own wife (who answered their home phone when calls were made by the FBI) involved with the artifacts. All were subsequently indicted.

When the FBI was called by the employee of UNAM, a phone call was made to the salesman in San Antonio, under the pretext of an interest in purchasing all the artifacts and any additional artifacts that he might be able to come up with. The salesman, not wanting to lose a “live one,” gave assurances, not only of the quality of the goods on hand, but of his ability to deliver all the caller might require in the future.

It was agreed that a display of the artifacts would be arranged in a different San Antonio motel, where salesman and caller would meet several days later. At this point it was necessary for the Houston and Tennessee defendants to become involved, for their knowledge of artifacts and ability to finance the showing, respectively. They came to San Antonio, rented a suite of rooms, and set up a display of the artifacts.

When the meeting came about, there were again discussions of the ability of the sellers to deliver additional quantities to buyers, who by this time were representing themselves to be with “The Syndicate,” interested in cornering the American and European markets for pre-Columbian objects. Undaunted, salesman assured buyers that there were “Indians digging up graves” even as they spoke, and sellers could meet any future demands for further artifacts.

It was and is the position of all the defendants in the case that there were in fact no Indians and no possibility of further artifacts becoming available, that the salesman was simply engaging in “puff talk.”

As we were preparing for the second trial, it seemed clear that we were going to have to defend with technical defenses, as the defendants had tried unsuccessfully to convince the jury, in the first trial, that all the talk with the undercover FBI agents was just talk, and had rather obviously not been believed.

Therefore, we began to view the case from the point of view of defending based on a differing interpretation of Mexican law—as well as from the point of view of contesting the authenticity and the alleged Mexican provenience of the artifacts.

If Mexico had not declared na­tional ownership of the artifacts so clearly as was being asserted, then importation of Mexican artifacts would not necessarily constitute a theft under Mexican law. Moreover, if the artifacts could not be proved to have come from Mexico, then Mexican law would be irrelevant; pre-Cortesian artifacts of a nature somewhat similar to the majority of the artifacts in our case could be found in Honduras, Belize, and Guatemala, if not elsewhere in Central America.

Of course, if the items were not pre-Cortesian the entire prosecution would fail.

It was in the area of finding us an expert on the Mexican law of “monuments,” as ruins and grave sites are called in Mexican law, that Tom Sharp did such yeoman service. He found us a bright and energetic Mexico City lawyer who had studied both in Mexico and the United States, held advanced degrees in international law, and had served for a time as a law professor in a California law school. He confirmed our impression of the Mexican law of monuments, namely that the laws were contradictory and somewhat convoluted, and that one simply could not engage in the dogmatic assertion that a clear declaration of national ownership of such property had been made.

My attempts to deal with the other issues (the authenticity of the artifacts and their Mexican provenance) I will now set forth in some detail.

During the several years that passed from the time the defendants in this case were first charged until the denial of their writs of certiorari to the United States Supreme Court after the second appeal, dealers and collectors of pre-Columbian artifacts and museums all over the country maintained a very active interest in the case. The opinion was widely (though not universally) held by such people that the defendants in the case were scapegoats.

 Accordingly, curators and dealers were usu­ally not merely willing but eager to talk with counsel about the case—so long as it was off the record. Nobody wanted to be identified by the government as being friendly to the defense, lest too close a look be taken at collections in which they had an interest.

All the lawyers tried to find us an expert, but none succeeded, and we went to trial without one.

I had been surprised when I learned that the government expert’s opinion was based entirely on his experience and his having “eyeballed” the artifacts. That kind of evidence certainly had been deemed insufficient in other types of cases (imagine a drug case without a chemical analysis of the substance involved, or a police officer’s testimony that a red stain was blood without serological work), and I thought the jury would like to have something more concrete.

I had done some reading on the subject (I took a back seat to no one, when originally appointed to this case, in my thorough ignorance of pre-Columbian artifacts and the law concerning the same) and learned a little bit about where these objects may be found. As I learned at the public library, carbon dating techniques do not work with terra cotta objects, as they contain no organic material. There were, however, two scientific techniques that had been used in this area; one was the technique, already known to me in other types of cases, of neutron activation analysis. There were, so far as I could determine, only two labs in the country capable of neutron activation analysis at that time—but one of those labs was that of the Federal Bureau of Investigation! The other technique, much less expensive and somewhat more readily available, was called thermoluminescent dosimetry.

The FBI had used neither technique, and the government was asking their peers to find these defendants guilty. I was prepared to argue to the jury, without having subjected the material to either of two scientific tests, either of which could have established the age of the articles beyond cavil, leaving only the provenience at issue.

By the time the case came to trial, Tom Sharp’s client had been declared incompetent to stand trial, so we didn’t have Tom with us at the trial. We did have the Mexican legal expert Tom had lined up, however, and he testified very straightforwardly and, I thought, advantageously to the defense.

Early in the trial we made some good points, I thought. The FBI had used a Houston mortgage-loan man who apparently just liked to play cops and robbers as the contact point with the defendants. It was he that told the salesman he was with “The Syndicate” and was out to control the American and European markets in pre-Columbian art.

He had done a great deal of this sort of “play acting” in earlier cases with the FBI, to the extent that he had acquired something of a reputation in the Houston area for being a bit flaky. Just for grins, as they say, I asked him on cross-examination if he was familiar with his own reputation for truth and veracity; when he said that he was, I asked whether the reputation was good or bad. He said “about fifty-fifty”!

Further, while sticking to his guns that his eyeball identification was as reliable as any identification that could be made on the authenticity of the objects, the government’s artifacts expert did admit that both of the scientific methods could have been employed and would have given scientific evidence on the issue.

About the second night we were in trial, I returned to the office and discovered a telephone message. The caller identified himself as an archaeologist from an eastern university, on sabbatical and teaching at the Defense Language School at Lackland Air Force Base in San Antonio. He felt that my client and the other defendants were being made scapegoats, and wanted to know if he could be of help. He left a San Antonio phone number. This sounded, of course, like the expert witness we had been looking for, the deus ex machina who was going to deliver us from the hands of the Philistines.

I called at once, and reached him. After verifying that my secretary had gotten it right—that he was incensed at what was being done to my client and the others and wanted to help—I began trying to set up a time and place to meet with him.

We met at the appointed hour, and I began to size him up. He was an ordinary-looking sort of fellow, apparently in his late thirties or early forties, and began immediately to ask questions—like whether the artifacts had been analyzed with thermoluminescence or neutron activation. Warming to him, I enthusiastically explained that such testing had not in fact been done. He was shocked, and allowed as how he would never venture to offer the opinion that a particular artifact was authentic unless such testing was done.

Talking further, he explained that his interest in anthropology had caused him to go on after obtaining his bachelor’s degree to obtain two master’s degrees (one in Spanish but the other in linguistics, a branch of anthropology) and his PhD in archaeology, the last from the University of Nebraska.

Enthralled, I told him that I was court-appointed in the case, as were all other defense counsel for this second trial, and I was unsure how much of an expert witness fee would be payable, as these things were usually settled via motion prior to trial. He assured me that money was not his motivation, and I assured him that I would try to get him paid what the government’s expert was being paid.

We agreed that he would appear at the Federal Courthouse the following morning, when I would announce to the Court his entry into the case as the defense artifacts expert and make arrangements for him to inspect the artifacts, in the courthouse vault while the trial continued.

I had explained to our newfound archaeologist that I understood he would much prefer scientific testing, but that at this late date we were going to have to rely on his eyeball opinion. The next morning he appeared at the courthouse as agreed, where he was introduced to the Court and arrangements were made to let him inspect the artifacts. He spent the entire day doing so.

That night, I met with him for a preliminary report to determine whether he was going to be able to help us. I couldn’t have been happier with what I heard. Many pieces, he said, were of doubtful authenticity and certainly could not be said beyond a reasonable doubt to be pre-Columbian. A number of pieces appeared to be authentic, but were the sorts of pieces that could be found in various parts of Mesoamerica, and certainly could not be said beyond a reasonable doubt to be of Mexican provenience. Finally, those pieces that were clearly authentic and clearly Mexican were undistinguished pieces of limited value, and clearly were not worth the $5,000 necessary to support this National Stolen Property Act prosecution.

The next morning, I advised the Court and the prosecutors that the defense at last had its long-sought artifacts expert, and that, in due course, he would be testifying.

In due course, he did, and in response to my questions he supported the defense position manfully, on every issue. I took him step by step through his testimony, refuting the evidence of the government’s expert point by point. “Please explain the technique known as thermoluminescent dosimetry, doctor” and “Why isn’t it possible to know the exact provenance, doctor” were the order of the day.

At the close of my direct examination of him, a very pleased and self-satisfied lawyer took his seat to await eagerly the prosecutor’s best efforts at shaking the witness’ testimony.

The cross-examination began on what seemed a particularly weak note.

“Now, let’s see, doctor. Just exactly how many hours of archaeology were involved in your studies for the bachelor’s degree?”

“Oh, not many, I guess. In fact, as I think about it, I probably took just one three-hour introductory anthropology course.” (Big deal, I thought—who cares how many hours he took towards his bachelor’s. I mean, after all, the man has his PhD.)

“And then, doctor,” the prosecutor continued, “one of your master’s degrees was in Spanish, was it not? A modern language, not in any way connected with linguistics or any other branch of anthropology, much less archaeology?”

“Yes, that’s true,” the witness replied. (Another big deal, I thought—let’s get on with the relevant portions of his education.)

“But you then went on to obtain your master’s in linguistics, didn’t you doctor, and that is legitimately part of the field of anthropology, though not specifically archaeology, isn’t it?”

“Yes,” he replied, smiling condescendingly. “I did, and it is.”

“Now, you’ve said you obtained your PhD in archaeology at the University of Nebraska, isn’t that correct?”

“Yes, that’s right.”

“And what year was that, doctor?”

“1975.”

“Now, then, doctor, can you explain to me why the registrar of the graduate school at the University of Nebraska has no rec­ord of the Doctor of Philosophy degree having been awarded to anyone by your name, in 1975 or any other year?”

(Long pause by the witness. Collective inward groan by all defendants and their counsel.)

“Well, actually, it’s an ABD.”

“An ABD,” the prosecutor inquired. “Perhaps you can explain to the members of the jury what an ABD is?”

“All but dissertation,” the witness muttered. (You sorry son of a bitch, I thought. May you be struck by lightning where you sit.)

“Well then, I guess it’s not doctor; it’s mister, isn’t it?”

“Yes,” said the witness. (No, thought defense counsel, it’s mud.)

“Well then, mister, let me move along to something else.”

With that, the prosecutor pulled from his briefcase a textbook. I don’t remember the correct name of either the book or its author, but the colloquy with the witness went something like this:

“Are you familiar with the name of Joaquin Tall?” (we’ll say, for my lack of memory of a better name).

“Yes, I am,” mister witness replied.

“And could you tell the ladies and gentlemen of the jury who Joaquin Tall is?” the prosecutor asked, ever so gently.

“Why, he is one of the best known authorities on the pre-Columbian artifacts of Mesoamerica in the entire world,” the now ever-so-helpful witness replied.

“And are you familiar with his book Diggin’ Up Bones ’n’ Stuff in Mesoamerica [again, I don’t remember the proper name]?” the prosecutor queried.

“Why, yes I am. It’s one of the most authoritative works in print on the subject,” said Mr. ABD.

“I’d like to read a brief passage from the preface, if I may. Please listen as I do so, as I’ll have some questions about it after I’ve read it.”

The prosecutor then read perhaps a page from the preface, which was directed to professionals in archaeology and art history. After making a basic point, the author moved on to a specific example.

It seems he had, on one occasion, gone to an archaeological site with the director of Mexico’s INA. They came across a scene where a “rough quadrilateral” had been marked off by four sticks stuck into the ground, presumably marking a dig.

There, within the quadrilateral, were an “archaeologist” (the prosecutor indicated the quote marks by raising both hands with the first two fingers of each hand extended) and two Indians. One Indian was holding a paper sack, and the other had a large shovel. The Indian with the shovel would periodically, on command of the “archaeologist” (hands aloft, two fingers extended again), stick the shovel into the ground and come up with a shovelful of earth.

The “archaeologist” (yes, fingers up) would rake through the shovel full of earth “with the same sort of trowel that one might find in the hand of any English lady gardener on a balmy summer afternoon” and, if he found anything, place it in the sack held by the other Indian.

With that, the prosecutor stopped reading and raised his head. “Mister witness,” he said. “Can you tell us who that ‘archaeologist’ [the damned fingers are now wagging like semaphores at the end of each hand] might have been?”

“Me,” he replied.

Not “no, I can’t,” not “I don’t know,” not even “it was me, but I have an explanation.” Just two little letters, one little word: “Me.”

Now, of course, the jury didn’t want to hear about non-Mexican provenience; they were totally unconcerned about thermoluminescent dosimetry. What they wanted to know was where did the defense get this witness? Did they know he was a fraud? Can we believe anything that comes from the defense table?

All I could think of to do on redirect examination was to ask him if he had told me he had the PhD degree (“Yes”), and would he please step down.

I thus hold what I believe to be the North American record for having an “expert” witness crammed down one’s throat. A lawyer doesn’t get to set a lot of records, so I guess I’ll take some solace in that.

The irony of the situation is that the testimony did make sense and would have been admissible even without the claim of a PhD. Of course, swallowing the reference in Joaquin Tall’s preface would have been a little tough, but there is simply no surviving an irrefutable demonstration that a witness has lied.

The defendants were again convicted. I really believe that had I obeyed the age-old admonition to “beware of Greeks bearing gifts” and never put the witness on the stand, it might have been otherwise.

The Fifth Circuit reversed the substantive count, holding that the Mexican law of national monuments was such an “arcane thicket” that convicting any American of transporting artifacts would violate the United States Constitution’s guarantee of due process to those accused of criminal conduct.

However, based on the salesman’s “puff talk,” they further held that there was evidence upon which the jury could permissibly conclude that the group was prepared to break the Mexican law—whatever it might be—and thus the conspiracy conviction was upheld.

I’ll bet the salesman still thinks he could have sold the jury if only that lawyer hadn’t put that phony “expert” on the stand.

The hell of it is—and this hurts to admit—he might be right.