80 years ago, Nazis stole a family’s painting. Now, US judge to decide if they should get it back
By JOEL RUBIN | Los Angeles Times | Published: December 3, 2018
LOS ANGELES (Tribune News Service) — For 25 years, a painting by the Impressionist master Camille Pissarro has hung on a museum wall in Spain.
The artwork's dark past is no secret: In 1939, months before the start of World War II, Nazi officials forced a Jewish woman to trade it for her freedom as she tried to flee Germany.
But despite committing to international agreements that call on nations to work toward returning artwork looted by the Nazi state, Spain has waged a relentless legal battle in U.S. courts against descendants of the woman, Lilly Cassirer, to keep the masterpiece, which is valued at $30 million.
The fight has stretched well into its second decade as attorneys for Madrid's Thyssen-Bornemisza Museum spent years first trying to have the case thrown out of the U.S. courts and then arguing the museum is the lawful owner of the painting.
Claude Cassirer, Lilly Cassirer's grandson, filed the lawsuit in 2005 but died several years ago. His daughter then died this year, leaving his son, David, to carry on the case.
Now, a federal judge in Los Angeles is set to decide who has the rightful claim to the painting.
On Tuesday, high-profile attorneys for the museum and Cassirer are scheduled to begin trial before U.S. District Judge John F. Walter in a downtown Los Angeles courtroom. Walter, who will hear the case without a jury, must interpret the intricacies of Spain's property laws to decide the painting's owner. Whichever side prevails, an appeal is almost certain.
The case is one of several filed in U.S. courts by American descendants of European Jews. In perhaps the most well-known legal skirmish, the U.S. Supreme Court in 2004 ruled Austria could not use sovereign immunity to avoid a lawsuit by Maria Altmann, a Los Angeles woman seeking the return of a few Gustav Klimt paintings valued at $150 million.
And this year, an appeals court brought an apparent end to an 11-year legal saga when it upheld a ruling by Walter in a case involving Renaissance paintings of Adam and Eve seized by the Nazis from a Dutch Jewish art dealer. Walter ruled the Norton Simon Museum in Pasadena, Calif., should keep the artwork because the Dutch government had been the valid owner when it sold the paintings.
The current trial is playing out as European nations, the U.S. and others around the world take stock of the uneven effort to rectify the cultural damage the Third Reich inflicted with its organized campaign to plunder art and other valuables from families and museums. Last week, to commemorate the 20th anniversary of the signing of the first major international agreement on the importance of finding Nazi-looted art and quickly reaching "just and fair" solutions with its owners, experts gathered in Berlin to measure the work that remains.
Of the roughly 600,000 paintings thought to have been stolen, about 100,000 remain missing, Stuart E. Eizenstat, a State Department adviser on Holocaust issues and leading figure in the campaign to return looted art, said in an address at the conference.
Spain, Eizenstat said, was one of a handful of key countries that "have made virtually no effort to comply" with the principles in the agreement, despite signing it and subsequent declarations. In criticizing Spain for its recalcitrance, he highlighted its refusal to return the Pissarro to the Cassirer family.
At stake is "Rue Saint-Honore in the Afternoon. Effect of Rain," one in a series of oil paintings Pissarro made of the street scene he saw from his room in a Paris hotel at the end of 1897 and 1898. Shortly after completing it, Pissarro sold the painting, which is about 2.5 feet tall, to Lilly Cassirer's father, who eventually passed it on to his daughter.
In 2010, shortly before his death, Claude Cassirer recalled in a Los Angeles Times interview memories of growing up in Berlin in the 1920s and how his grandmother raised him after his mother died. He had vivid memories of the Pissarro painting on the wall of her lavishly furnished parlor, where he used to sit on a plush Oriental carpet playing with wooden trucks and trains.
As Adolf Hitler rose to power, members of the family of industrialists and art collectors fled Germany. Claude Cassirer parted ways with his grandmother, going first with his father to Prague, in what was then Czechoslovakia, then to a boarding school in Britain, where classmates and teachers relied on him to translate Hitler's speeches as they were broadcast on the radio. Cassirer later moved to France but had to escape to Morocco after the Nazis occupied the country and eventually made his way to the United States.
Lilly Cassirer was among the last of the family to flee the coming terror of the Holocaust. As she tried to leave Germany, a Nazi official forced her to surrender the painting in exchange for the exit visa she needed. Her sister, who remained, was later killed in the death camp of Theresienstadt.
At the end of the war, Lilly Cassirer joined many other Jews in seeking help from Allied officials who were working to find looted art. A search for the painting turned up nothing. Years later, the German government paid Cassirer about $13,000 as restitution and, afterward, she gave up her search.
"My grandmother never knew what happened to the painting," Claude Cassirer said in 2010.
When Lilly Cassirer died, she left the rights to the painting to Claude. In a house outside San Diego, where Claude and his wife had retired, the couple kept a copy of the lost Pissarro on the wall.
Then, in 2000, Cassirer received a phone call from an old acquaintance: The painting had been found.
"I was in shock," he told the Times in 2010.
The painting had ended up in Spain after changing hands among private owners several times. In 1976, an art dealer in New York City negotiated a sale of the painting to Baron Hans-Heinrich Thyssen-Bornemisza, a Swiss art collector and scion of a German steel empire. Years later, the Spanish government elected to buy the baron's entire art collection of hundreds of paintings for nearly $340 million. The museum in Madrid became the Pissarro's new home.
Cassirer contacted Spanish authorities and asked for the Pissarro to be returned. When the requests were rebuffed, he sued.
Lawyers for the museum tried for years to get the lawsuit tossed out on the grounds that Spain's sovereignty gave it immunity from such legal proceedings in a U.S. court. When an appeals court found otherwise, the museum tried a new tack, arguing that the statute of limitations on the family's right to claim the artwork had expired. A judge sided with the museum, but the ruling was overturned by an appeals court.
The case was transferred to Walters, who again ruled in favor of the museum in 2016 when he concluded that under the peculiarities of Spanish law, Spain legally owned the painting because the museum had possessed it for a legally binding period of time and displayed it publicly. But an appeals court once again reversed the decision and sent the case back, setting the stage for a trial.
The fight over the painting now hinges on the question of whether the artwork's tainted provenance should have been clear to the baron and Spanish officials.
David Boies, a litigator who, among other cases, represented Al Gore in the fight over the 2000 presidential election and argued on behalf of gay marriage before the Supreme Court, is representing David Cassirer. In an interview, he said he will argue at trial that the failure on the part of the baron and Spanish officials to heed clues pointing to the painting's history amounted to "willful blindness."
Most telling, Boies said, are the remains of labels on the back of the painting, which have been torn or fallen off over the years. One of the partial labels, which are typically affixed to track ownership as a painting changes hands, is from an art gallery Lilly Cassirer's father and another relative ran in Berlin. Boies also highlighted records from the baron's archives that, he said, show the baron deliberately falsified where he bought the painting in an effort to conceal its history.
To win the case, Boies must convince the judge the baron or museum officials were so negligent that under Spanish law they amount to being accessories, however distant, to the Nazis' theft of the painting.
Through a spokeswoman, attorneys for the museum declined to comment. But in court filings, they reject Boies' arguments, saying both the baron and museum bought the painting in good faith. Although in hindsight the small piece of the gallery label could raise a red flag, experts hired by the museum said in written testimony that at the time each bought it, there would have been no reason for the baron or museum officials to be wary of the painting's past or to link it to the Cassirer family.
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