Justice is done, finally

Jerusalem Post 25 July 2010
By Marilyn Henry

The saga of a painting confiscated by the Nazis in 1939 and circulated in New York for 13 years has,at last, come to a successful end.

Wally came to New York for three months in 1997. A 1912 portrait by Egon Schiele, Wally was detained in New York, and it has taken 13 years to reach a legal agreement that will send her home to Vienna. The painting was seized in January 1998, first by then Manhattan district attorney Robert Morgenthau, later by federal prosecutors, at the end of a temporary exhibition lent by the Austrian Leopold Museum to the Museum of Modern Art (MoMA) in New York.

Morgenthau took it because a family claimed that the painting had been confiscated in 1939 by the Nazis from Lea Bondi Jaray, a Viennese Jewish art dealer. That was the beginning of high drama in the international museum community, and the beginning of global attention to claims for artworks that had been looted from Jewish families in Europe during the Nazi era.

MoMA, whose chairman was the Jewish philanthropist Ronald Lauder, fought the seizure. The museum argued that it was obliged to return Wally under the terms of its loan agreement with the Leopold. The Austrian museum argued that it legitimately owned the painting.

The portrait had been acquired after World War II by Dr. Rudolf Leopold, whose private collection of Expressionist art became the foundation of the Austrian museum.

American prosecutors argued that Wally was considered stolen property, had been imported to the New York museum in violation of the National Stolen Property Act and must be forfeited.

The drama ended July 20 when Preet Bharara, the US attorney in Manhattan, announced a settlement with the Leopold Museum and Lea Bondi Jaray’s estate. Under the deal, the museum will pay the estate some $19 million and, in exchange, keep the oil painting, which depicts Schiele’s model and lover Valerie Neuzil, known as Wally. (The value of the painting, because of the notoriety, has risen from an estimated $2 million at the time it came to New York for the exhibition.) THE SEIZURE of Wally had terrified the museum world, which thought that Jewish Nazi victims might try to strip museum walls bare, and that foreign museums would be afraid to lend artworks because of what Stephen W. Clark, then MoMA’s associate general counsel, called “overreaching, overzealous prosecutors.”

Although neither scenario occurred, there was no shortage of drama following the claim for Wally.

One of the early episodes came from an unexpected opponent of Morgenthau’s seizure of the painting: the Jewish Museum of New York. Robert J. Hurst, the museum chairman and son of a Holocaust survivor, wrote in The New York Times that “lenders virtually never have any awareness that their works of art may have a tainted past.”

It is hard to feel much sympathy for museums and collectors who cannot be troubled or trusted to learn whether their coveted works have legal impediments.

Especially troubling was the symbolism of the Jewish Museum’s position. When a preeminent Jewish institution seemed more concerned with museums’ holdings than the rights of Nazi victims, it undermined the moral argument that Jewish properties should be restored to their legitimate prewar owners.

In September 1999, New York’s highest court ruled that the Manhattan district attorney had overreached by detaining the painting, and Wally was expected to return to Vienna. However, as soon as Morgenthau was overruled by a state court, the federal government seized Wally on grounds that it was stolen property.

In the federal district court in New York, Judge Robert Mukasey issued a heart-stopping decision in 2000. He freed Wally, arguing that the painting was no longer legally deemed “stolen” property because the Allies had found it after the war and returned it to Austria. Thus it was purged of the taint of theft. Such a sweeping decision could have the effect of “cleansing” any Nazi-looted artwork that was located by the Allies in Europe after the war, whether or not the original owner recovered the work.

Mukasey allowed federal prosecutors to amend their case and bolster their arguments – and two years later, the judge took a bold step and reversed his prior ruling.

The artworks were, in effect, “unpurged” of the taint of theft and again considered stolen because the task of the Allies had been to locate looted artworks, not to return them to individual owners from whom they were plundered.

Lea Bondi Jaray died in 1969, never abandoning her claim for Wally. A federal trial was ordered in New York. The legal question for the court was whether the Schiele was considered stolen and therefore illegally brought into the US for the MoMA exhibition. The answer would rest on the word of Rudolf Leopold, who had vehemently defended his ownership of the Schiele. He died last month at the age of 85.

FROM THE first, Wally was a special case. It elevated the issue of Nazi-looted art, which had been largely dormant for decades. It profoundly altered the way in which the art world reviews the history and provenance of individual artworks.

This has not been especially helpful to the majority of claimants, but at least the museum world and art trade have been sensitized to the issue.

Perhaps more significant is the manner in which this particular claim was handled. This was not a dispute between a museum and a private individual. It was a criminal case prosecuted by New York and federal officials. Museums can choose to ignore individual claimants; they ignore prosecutors with subpoenas only at great peril.

When the government stepped in (Morgenthau in Manhattan, then federal prosecutors), it appeared that the government represented the claimants. It did not, but their interests neatly coincided. The government wanted the Leopold to forfeit a stolen painting – a specific painting sought by Lea Bondi Jaray’s heirs. It was agreed that if the government won, Wally would go to the heirs.

The trial was to have begun Monday in federal court in Manhattan. Instead, before her return to Austria under the terms of the settlement, Wally will be on exhibit for several weeks, beginning Thursday at the Museum of Jewish Heritage in New York. The museum’s chairman is Morgenthau, the retired district attorney who sparked the international storm on Nazi-looted art by detaining the Schiele.

“I didn’t view our involvement in the paintings as a Jewish issue. It is a stolen-property issue. Possession of stolen property is a crime,” he said in an interview with The Jerusalem Post in 1998. It would have made no difference if the case involved a Schiele or a 1930 Ford vehicle, he said.

In a statement announcing the settlement, the US attorney, Bharara, said: “More than 70 years after ‘Portrait of Wally’ was stolen, today’s settlement marks another small step toward justice for victims of property crimes during World War II. Lea Bondi Jaray and her family were steadfast in their long battle to restore their rightful ownership of ‘Portrait of Wally.’ Their determination provides hope for others who lost precious property and art to Nazi theft.”

This is not quite true. The family of Lea Bondi Jaray was in an enviably unique position. It had what other claimants do not: local and federal prosecutors fighting for their rights. It must befuddle and frustrate many claimants to learn that their cases will never warrant the rigorous attention given to Wally.

Without the hard work and dedication of Bharara’s office and US Immigration and Customs Enforcement, the US attorney said, “the true provenance of ‘Portrait of Wally’ would not have been uncovered nor justice done after so many years.” He is correct.

The family would not have prevailed without aggressive US government support over the last decade. If the US is sincere about restoring Nazi victims’ assets to their rightful owners, every legitimate claimant is entitled to the same degree of sympathetic federal assistance as the family of Lea Bondi Jaray found.
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