Authors: Robert K. Wittman
Unbeknownst to me, Donna had other things on her mind. She wanted a third child. I wasn’t so sure. My future was so uncertain. Donna was adamant. “We have to stop putting our life on hold,” she said. Our boys were already four and six. Donna was thirty-five. If we were going to expand our family, now was the time. I nervously agreed. Kristin was born on Thanksgiving Day, and, as it turned out, having a little girl was the best decision we made during those stressful years.
Incredibly, the trial delays continued into 1993, 1994, and beyond. I kept myself as busy as I could with the kids and work, and with my new hobbies and interest in fine art, but every few hours, my thoughts returned to Denis and what lay ahead for me. Each day I crossed the Delaware River on the way to work, I passed New Jersey’s Riverfront State Prison at the foot of the Ben Franklin Bridge. It was the place I would be sent if convicted.
One day in 1995, a few weeks before my trial was set to begin, I ran into a member of the prosecution team on South Street in Philadelphia. We had to be careful. We weren’t supposed to talk outside of court.
We exchanged pleasantries and an awkward silence followed. We just stood there. Finally, the person said, “How are you holding up?”
How was I holding up?
I kept my cool, and answered with a question of my own. As politely as I could, I said, “Why are you doing this?”
What the person said shook me. “Look, we know this is a bad case, but it’s just one we have to lose at trial.”
The comment shattered my assumption that prosecutors pursued fundamental fairness. As a defendant, I figured the truth, witnesses, and evidence were on my side. It didn’t occur to me that government officials would prosecute a case they did not believe in.
We know this is a bad case, but it’s just one we have to lose at trial
. I started to stammer a response, but thought better of it, and walked away.
I was forty years old and my hair was gray.
Camden, New Jersey, 1995
.
“W
ILL THE DEFENDANT PLEASE RISE
?”
The jurors shuffled into the courtroom, the forewoman gripping the verdict sheet. I tried to catch her eye. The jury had been out only forty-five minutes. The trial was in its ninth day, unbelievably long for a DUI case, but I thought it was going very well. I testified that I drank four or five beers over eight hours. My attorney, Mike Pinsky, ripped the government witnesses apart, and the paramedics who took the stand said I hadn’t looked drunk. Pamela, the woman Denis met at the bar, described me as sober, the guy who was clearly his friend’s designated driver. The prosecutor stuck to her best evidence—the hospital report showed that my blood alcohol count was .21, so high that I should have had trouble walking, let alone driving.
Fortunately, Pinsky’s experts had by then solved the mystery of the blood test. They explained to the jury that when they closely compared Denis’s medical records with mine, they found something odd: My alleged blood alcohol content, when calculated to the fifth decimal point, was .21232 and Denis’s reading was .21185. It was a difference of just .00047, less than the typical variation found when testing the same vial of blood. This was too close to be a coincidence,
my experts testified. Someone at the hospital had mixed up the samples. The standard practice is to test every vial of blood twice—and it looked like someone had tested Denis’s blood twice, and assigned one of the readings to me. Our argument was bolstered when our experts discovered that the hospital didn’t have a method for securing each sample—there were no procedures to keep a proper chain of custody. One of our experts was the former head of the state police crime lab. On the stand, he spoke definitively: The government’s only evidence was worthless.
As the clerk handed the verdict sheet to the judge, my mind raced. Why the quick verdict? Did the jury even take the time to analyze the lab reports? Did they like my lawyer? The prosecutor? Me? A uniformed deputy quietly slipped behind me. What did that mean? Did he plan to take me into custody? Or was he there to protect me?
As the judge unfolded the verdict sheet, the street encounter with that member of the prosecution team flashed in my head—
We know it’s a bad case, but it’s just one we have to lose at trial
. What if? What if the jury didn’t get that?
The judge cleared his throat. “In the case of New Jersey versus Robert K. Wittman, we find the defendant … not guilty.”
I exhaled deeply and unclenched my fists. I hugged my lawyer. I hugged Donna. I even hugged the prosecutor. The news accounts said I “wept openly.” I wanted to hug the judge, too. For after the verdict, he took the unusual step of publicly stating that he agreed with the jury. He called the blood test evidence bogus, concluding: “He lost control and tragically there was an accident and his passenger lost his life. That’s an accident.”
Donna and I vowed to make a fresh start, and decided to move from suburban New Jersey to suburban Pennsylvania.
I thought about Denis every day.
I spent late nights on the porch, with a tall glass of iced tea, thinking about all I was learning from my ordeal. I had a choice: I could go into a funk of self-pity and ride a desk for the rest of my
career—put in forty hours a week, earn a pension, make no waves—or I could come out swinging. Either way, the accident and trial would mark the turning point of my life and my career.
I never seriously considered quitting the FBI, but I did vow that I wouldn’t be the same kind of agent anymore. Most law officers I knew were honorable, but some were too focused on putting people away at any cost in order to close a case. It was a dangerous attitude. These guys might say,
Well, maybe he didn’t commit the crime I busted him for, but it’s OK because this guy’s a dirtbag and I’m sure he got away with something else he did do
. I never agreed with that philosophy. Innocence is innocence. I now knew what it felt like to be charged with a crime I hadn’t committed, what it did to families, how an innocent person facing trial can feel helpless, alone in the world. I could never knowingly put anyone through that.
I was now a member of a narrow class. Few FBI agents indicted on felony charges take the case to trial. Fewer still win acquittal, and only a handful of those choose to remain with the bureau. I brought a perspective few of my brethren could match. Most agents saw things in black and white; I started seeing shades of gray. I understood that just because someone made a mistake in judgment, it didn’t make him evil. Perhaps as important, I also now knew what most suspects, guilty or innocent, truly feared, and what they wanted to hear. My newfound ability to see both sides of a situation—to think and feel like the accused—was invaluable. I knew it would make me a better agent, especially undercover.
But what kind of agent did I want to be?
One evening, I sat alone at my piano and played a Chopin “Fantasie.” It was a favorite from my days as a piano performance major in college, but one I had not played in years. As I got lost in the piece, I thought about the rush I’d gotten when we recovered the Chinese orb and Rodin statue, what it felt like to hold history in your hands. My thoughts bounced with the music, and settled on the inspirational pianist Van Cliburn. He always impressed me, the way he came from such lowly roots, and used his insatiable drive
and talent to win the Tchaikovsky competition in Moscow at the height of the Cold War, showing unprecedented courage at a time when Americans had little hope of winning anything in Russia. I decided that, like him, I was going to take a chance and channel my energies toward making a difference in the world.
And finally it hit me: I was uniquely positioned to do something about art crime. Here I was, already an FBI agent with a track record of working art crime cases and, in the case of the jewelry-store robberies, leading a team effort that had solved a complex crime. What’s more, I’d worked on my own to become a bit of an expert in several fields. In the five-year period between the accident and my acquittal, I’d studied in classrooms as diverse as flea markets and the Barnes, mastering the nuances of everything from collectibles to fine art. While I specialized in baseball cards, Civil War relics, Japanese collectibles, antique guns, and Impressionist art, I knew the knowledge and skills I was honing could be used in almost any medium.
I could now walk into any collectibles, antiques, or fine art forum and mingle and barter with confidence. I knew that a mint condition Mickey Mantle rookie card was worth twice as much as a rookie Joe DiMaggio, that a Custer autograph was far more valuable than one from Robert E. Lee. I could spot a Soutine in a second and explain how his constructive use of color was influenced by Cézanne, and just as easily discuss Boucher’s eighteenth-century influences on Modigliani’s nineteenth-century nudes. I could explain the difference between
provenance
(the ownership history of a work of art) and
provenience
(information about the spot where an antiquity came out of the ground). I could credibly hold forth on the differences between the Colt revolver Texas Ranger Sam Walker carried into his final battle and the one Roosevelt carried up San Juan Hill. Along the East Coast, I knew most of the big players, which shows to attend and whom to trust.
My ad-hoc education was complete.
I was ready to go undercover, in pursuit of the priceless.
In the summer of 1997, I got my first chance.
New Jersey Turnpike, 1997
.
T
HE SMUGGLERS ARRIVED TWENTY MINUTES EARLY
. Our surveillance teams were already in place and watched them pull into the bustling Turnpike rest stop near exit 7A, halfway between Philadelphia and New York. Undercover agents filled the parking lot—two workmen eating Blimpie hoagies in a utility pickup, a woman gripping a Styrofoam coffee cup and speaking into a pay phone, a couple with lunch from Burger King lounging at a picnic table. Inside a dark van with tinted windows, a team of two agents aimed a video camera at the arranged meeting point—a set of picnic tables in the shade, just two hundred feet from the Turnpike. When the smugglers parked their gray Pontiac and found a table, I got the word by cell phone. I was parked a few miles away in a rented tan Plymouth Voyager van with a Spanish-speaking agent, Anibal Molina. We adjusted our body wires, stashed our weapons under the seat, and pulled out onto the Turnpike.
On this bright and gusty September afternoon, the FBI was hunting for treasure—a seventeen-hundred-year-old South American antiquity called a “backflap,” the backside of an ancient Moche king’s body armor, an exquisite piece hammered from gold. For seventeen centuries, the backflap had remained buried in a honeycombed royal
tomb along the coastal desert of northern Peru—until 1987, when grave robbers stumbled upon the site. Since then, the pilfered backflap remained elusive, the most valuable missing artifact in all of Peru, frustrating law enforcement officials and archaeologists throughout the Americas. Now two swarthy Miami men, the smugglers we’d arranged to meet on the Turnpike, were offering to sell it to me for $1.6 million. I didn’t
really
believe these two could pull it off. I figured this was some sort of fraud or rip-off. After all, they were claiming they held the largest golden artifact ever excavated from a tomb in the Americas.
At the picnic table, the smugglers greeted us with mirrored sunglasses and crocodile smiles. We shook hands, sat down. The older one took the lead, and this was good because we had a thick FBI file on him: Denis Garcia, Hispanic male, fifty-eight years old, 225 pounds, five foot nine, brown eyes, white hair, full-time South Florida agricultural salesman, part-time antiquities smuggler. Garcia did not have a criminal record, but the FBI suspected that he had been smuggling illicit artifacts from South America since the late 1960s, when he lived in Peru and learned the pre-Columbian antiquities trade.
Garcia introduced his partner. He was twenty-five years younger and half a head shorter, a muscular man of Puerto Rican heritage. “My son-in-law,” Garcia said. “Orlando Mendez.”
We shook hands again, and I introduced myself using my undercover name, Bob Clay. Mendez fidgeted nervously. Garcia was a pro, all business. He got right to it.
“You have the money?”
“No problem—so long as you’ve got the backflap.”
“We’ll be bringing it up, making final arrangements.” Garcia shifted back to the money. “The price is one-point-six.”
I didn’t flinch. “As agreed. But I have to have it authenticated. My expert has to see it, look it over. When can we do that?”
“A couple weeks. We have a friend at the Panamanian consulate. He’ll go down and get it.”
“Customs?”
Garcia waved his hand. “Not a problem.”
“Tell me more,” I said. “How did your friend get the piece?”
Garcia launched into a cock-and-bull story about the provenance, a story designed to somehow lend an air of legitimacy to the illegal sale of a Peruvian national treasure in the parking lot of a Turnpike rest stop. I nodded and acted impressed. I let him finish his story—then switched gears, eager to get him on tape admitting that he knew he was breaking the law, an important distinction we would need if the case ever went to trial.
I began gently. “These things are touchy.”
Garcia nodded knowingly. “They are.”
“We have to be very careful when we resell it,” I said. “Obviously, it can’t go to a museum.”
Garcia opened his palms as if to say, “Of course.”
Mendez, still squirming, broke in and spoke for the first time. His words came rapid fire, his tone overly accusatory. “Are you sure about this? How do you know it’s illegal to bring the backflap into the U.S.?” Before I could answer, he fired again. “How do you know? How do you know?”
I acted like I had done this a hundred times. “Trust me, I looked it up.” I should have left it there, but Mendez didn’t look convinced, so I added an unnecessary comment. “I’m an attorney,” I said.