A publication of the Archaeological Institute of America
The trial of Frederick Schultz became the first full criminal trial under the NSPA to uphold the McClain doctrine. "It is the first major trial under the NSPA and the McClain case where it was made clear that a foreign statue could be used as the basis for prosecution," says Kaye, who represented the Egyptian government witnesses. "The concept was upheld in civil trials but this is the first time that it was upheld in a criminal context, and in New York." (Click here for details on the trial.)
The defendant protested his innocence and criticized the antiquities laws. "We strongly deny that Mr. Schultz ever knew that any antiquity he received, purchased or sold to any person was stolen from the nation of Egypt or anyone else," said defense attorney Linda Imes. "In addition, we will show that the arcane legal theory on which the government's charges are based is without merit." The defense argued for a dismissal of the trial on the grounds that the matter fell under the Cultural Property Implementation Act (CPIA) which does not allow for criminal prosecution. (Click here for more on international antiquities law.)
"They had no legs to stand on, in my personal opinion," says Gerstenblith. "In the legislative history of the act, it says that Congress did not intend to change any existing federal or state law or remedies by enacting the CPIA. The judge made the point that surely Congress did not intend to eliminate all criminal remedies by enacting the statute, at least not without expressly stating so."
The defense also argued that the 1983 Egyptian national property law does not sufficiently determine ownership. Judge Rakoff dimissed these concerns after listening to testimony on November 20, from Egyptian officials: Gaballa Ali Gaballa, secretary general of the Supreme Council of Antiquities; Hisham Saraya, its legal counselor; and Major General Ali El-Sobki, head of the forensic investigation department of the Antiquities Police.
The judge also rejected an argument against prosecuting American citizens for foreign cultural property thefts. "If an American conspired to steal the Liberty Bell and sell it to a foreign collector of artifacts, there is no question he could be prosecuted," Rakoff wrote.
Schultz's defense lawyers tried to save their client once the trial began by insisting that the dealer had bought antiquities in good faith from a ruthless Tokeley-Parry, but witnesses and paper trails suggested otherwise. During final arguments, assistant U.S. attorney Peter Neiman questioned how a long-time antiquities dealer and Princeton graduate could have remained so uninitiated. "The man's business is buying and selling Egyptian antiquities," he said. "Anybody in the business for ten minutes would know there is nothing out there that is fresh out of Egypt." Twelve jurors decided in favor of the government's account of events after four and a half hours of deliberation.
"It was a well tried case and from the viewpoint of Egypt turned out the right way," says Kaye. Zahi Hawass, head of Egypt's Supreme Council of Antiquities, expressed his appreciation of the government's efforts. "I believe that the United States ruling in the Schultz case shows an important and honest collaboration to preserve the Egyptian heritage," he says. "The Egyptian heritage not only belongs to Egypt but to everyone, and the sincere concern of the district attorney of New York and her study of the Egyptian law should be an example for other countries to follow."