Case against art dealers hinges on technicality

The fate of a pair of local art dealers may rest on Judge Frank Ochoa’s ruling on a legal technicality that will determine whether the People versus James O’Mahoney and Ronald Gillio goes to trial.

After a lengthy pretrial hearing during which they were accused of taking advantage of the late Josef Muench, an internationally known photographer, the judge is expected to rule whether case law regarding “theft from an elder by a caretaker” is applicable. The more broadly defined elder-abuse statues were not in effect when the incident involving transferring of the rights to Muench’s photographs took place in 1996.

During closing arguments on Dec. 15, Deputy District Attorney Gordon Auchincloss argued that Muench, who was 92 when he met the defendants, suffered from dementia and that “it was obvious this man could not handle his own business affairs.”

Characterizing the defense arguments that the art dealers ended up losing money on the deal as “like saying that a drug dealer that went out and bought $10,000 worth of heroin and sold it for $5,000 isn’t guilty of dealing drugs because he didn’t make a profit,” Auchincloss made a number of allegations against the two, including claims that the original agreement with Muench was forged.

Admitting that the case against Gillio was more problematic than the one against O’Mahoney, Auchincloss nonetheless contended, “Both defendants should be held to answer as charged.”

“Lack of evidence is not evidence,” said Stephen Balash, Gillio’s attorney, who argued that the case against his client did not hold up to scrutiny.

O’Mahoney’s attorney said, “In the area of his photography, Muench was as sharp as a tack.” He also stressed that his client’s relationship to Muench was not that of a caretaker, prompting Judge Ochoa to request a brief on the matter from the District Attorney. Ochoa is expected to rule on whether the case will go to trial today at 1:30 p.m.

Originally published in South Coast Beacon on  December 18, 2003.