Blotter Art On Trial
Published by pitch.com – Friday 27 December, 2002
On a cool, breezy San Francisco morning, he awoke around 8 or 9. Feeling chivalrous, the 46-year-old artist decided to fetch some coffee from a nearby shop for his sleeping girlfriend, Caroline. She’d like that.
McCloud headed out the door of his Victorian house and walked down Twentieth Street to the coffee shop. As he made his way back, two javas in hand, an army crashed down on him. They yelled violent things, and he, no stranger to the acid tongue, reciprocated in good form. They told him he would spend the rest of his life in prison. Men swarmed the street. A SWAT team stormed his house.
Caroline Rutledge stood paralyzed and alone at the top of the stairs in the house. Gunmen screamed at her to lie on the floor. Others screamed for her to put her hands in the air. She wore pajamas and no shoes.
Soon, men in Day-Glo hazardous-materials suits roamed the house for a precautionary walk-through, and then agent after agent after agent from the Drug Enforcement Administration and U.S. Customs combed the house — turned it upside down, one might say. With McCloud in custody and Rutledge outside refusing to answer questions, agents hunted for the prize. Upstairs, they found marijuana, Ecstasy and LSD, but only in amounts for personal use. No good. They were taking down a kingpin today. One-third ounce of pot meant nothing.
In the backyard shed, they found part of what they sought: some twenty boxes of the edible blotter paper that LSD manufacturers soak with acid to create doses for users. There also was a machine to perforate each sheet into a thousand quarter-inch square doses. In the attic were more boxes of blotter paper with various colorful designs defining the tiny squares — grids of dancing cartoon condoms, Mad Hatters, dancing elephants, skulls and crossbones, and Chinese dragons. Downstairs, in the living room, they found a laptop computer with some of these designs on the hard drive.
Before leaving, they also grabbed a framed sign in a downstairs hallway: “Welcome all dope dealers come in back room.”
A little more than thirteen months later — beginning March 26, 2001 — McCloud sat in a cushy black leather chair before a jury in the U.S. District Courthouse in downtown Kansas City. There, in a twist on that tired cliché of Dorothy-Toto dialogue, a Bay Area man faced the startling realization that he wasn’t in Oz anymore. Before the twelve jurors, McCloud’s lawyer admitted that the defendant used drugs, that his girlfriend used drugs and that two of their defense witnesses used drugs, and then the lawyer asked that all that be forgotten because the issue at hand was whether McCloud distributed gargantuan amounts of LSD and not whether he had a proclivity for smoking joints or tripping on acid.
In San Francisco, making that point wouldn’t have been such a concern. In Kansas City — where, according to the prosecution, LSD blotter paper like McCloud’s had been found at a house near a school — it scared the defense down to the last day.
Still, for nearly the entirety of the two-week trial, McCloud did not act like a man in danger of life imprisonment. Outside the courtroom he made peculiar jokes. He gleefully referred to himself as “the defendant.” Unflappable, said his nerve-rattled girlfriend as the sequestered jury considered its decision. “Mark’s unflappable.”
But on day two of the jury’s deliberation, when there was a verdict just fifteen minutes after the jury had tried to knock off early for the weekend, the defendant’s face looked flappable, very flappable, as he took Rutledge aside for a moment alone, then gave his brother, Kelly, his pocket cash. When McCloud returned to the black leather chair, his broad, square frame sagged as he braced for immediate incarceration.
The jury walked back into U.S. District Judge Gary A. Fenner’s federal courtroom as it had on eight days during the trial, when stacks and stacks of colorful paper from McCloud’s house had been displayed behind the prosecution’s table. Now the jurors would declare what the paper represented. Was it 33 million doses of LSD, as argued by assistant U.S. attorney Michael Oliver? Or was it simply 33,000 sheets of perforated paper, plain and simple, as declared by veteran San Francisco defense lawyer Doron Weinberg?
The defense had had high hopes throughout the deliberation, but at the jury’s sudden unanimity, the talented and grandiose Weinberg knew to expect the worst, as did his assistant, Susan Matross. McCloud, his brother and Rutledge followed their lead.
Ah, but what about miracles? Ever met a lucky man? When Fenner read the decision — not guilty on both charges of conspiracy to distribute LSD in Kansas City and elsewhere — gasps and sighs of relief bounced around the defense table, between Rutledge and Kelly McCloud, and then resounded to the bench, until Fenner shushed the reaction. To the courtroom’s left, Oliver, accompanied by federal agents, looked drained.
“It was a miracle,” McCloud said as he paced outside the courtroom moments later. “A miracle.”
And what better end to this trial than a miracle? “This is better than Court TV,” said the most faithful attendee, a rejected juror who just couldn’t stay away. He’d heard a government expert testify that the DEA couldn’t afford cameras. A New York art critic had sworn that, yes, even the FBI logo can have artistic merit. A secret agent from Scotland Yard had presented an unintelligible tape recording of McCloud not selling drugs. And the richly paneled courtroom with its soaring ceiling had hosted cameos by Salvador Dali, Mr. Bill and the Beatles.
Strange? Almost as strange as the two overriding issues in United States v. Mark McCloud: How the government managed to try an eccentric San Franciscan in front of a Midwestern jury, and how the decision to convict or acquit ultimately became a question of art.
The government of the United States said McCloud was responsible for a tremendous amount of the country’s LSD traffic. Within his San Francisco home, McCloud would design, perforate and treat thousands and thousands of sheets of LSD blotter, totaling millions of doses, the prosecution theorized. He supposedly would pawn this off in bulk to a chosen few, such as his friend Kathleen Brown, who would make contact with her own regional clients, such as Garen Armstrong and Matthew Skelly in Kansas City. Every month or so, Armstrong and Skelly would receive about ten LSD sheets (roughly 10,000 doses) from Brown and then sell pieces of that to foot soldiers (to borrow melodramatic drug-movie lingo) around the Midwest. These pushers then distributed LSD to users, specifically at raves and concerts, who would gobble up the tiny paper squares and spend approximately six hours in a perceptual promised land. Or they would have a bad trip, in which case they would feel like hobos in the netherworld.
If a drug operation is run correctly, no participant knows more about it than necessary, according to the government’s conspiracy theory. McCloud knows Brown, but not Armstrong and Skelly, who in turn know others who are unknown to McCloud or Brown.
But suppose something went wrong, as in the summer of 1999, when an LSD bust in Des Moines, Iowa, led DEA agents to Armstrong and Skelly at 7234 Pennsylvania Avenue in Kansas City’s Waldo neighborhood. Caught with thousands of hits of LSD and looking at spending the next few decades in prison, the men pleaded guilty to felonies, cooperated with the government and named Kathleen Brown as their source.
But the government wanted more: Where did Brown get her LSD?
As the threat of years in prison started to fester, a rough story emerged. There was a name. Maybe there was a name. Susie. Yeah, the guy goes by the street name “Susie Wong.” A guy in San Francisco. Then … oh yeah, Brown mentioned a guy named Mark in San Francisco.
Over the course of several interviews, Armstrong and Skelly — and fellow arrestees Clemente Raya and Raphael Rodriguez — started to tell a similar story. Brown told them her source was a guy named Mark in San Francisco who collected and exhibited blotter paper as art. The feds tracked down McCloud, whose two charges included an add-on accusation of distributing drugs too close to a school because the Kansas City pushers operated near Cook Science and Math Magnet Elementary.
In court, McCloud’s lawyer attacked the credibility of the four dealers. First, why did they all begin to reveal the same information (Susie … Mark … San Francisco … artist) during plea-bargain interviews and never before? Second, how much sense did it make that Brown would blab about her supplier to each and every one of them?
When investigators learned from Armstrong that Skelly was playing both sides, giving information to dealers in Louisiana while cooperating with the government, they decided to monitor his conversations. In September 1999, four months after Skelly recalled the names “Susie” and “Mark” as Brown’s source, the detectives eavesdropped as Skelly instructed his girlfriend to find out what she could about Mark McCloud on the Internet.
Weinberg questioned federal drug agent Randy Sinele as to why Skelly would seek such information. He also addressed the zeal with which Armstrong in particular decided to help the government.
“He was cooperating against a lot of people in a lot of cases?” Weinberg asked.
“Yes, sir,” Sinele answered.
In court, each witness admitted that he or she had never met McCloud, let alone purchased LSD from him. The witnesses got their LSD from Brown, each said, and they believed Brown got it from McCloud.
Still, the government’s most significant problem was that none of the 33,000 sheets of blotter paper stacked in the courtroom contained so much as a drop of LSD. As to the riddle of why a person would need that much blotter paper if he didn’t intend to dose it with LSD, well … McCloud’s answer sat within seventeen boxes adjacent to the prosecution’s impressive stacks of paper.
Therein lay the most complete “blotter art” collection in the world — framed blotter sheets dating as far back as the early 1970s and bearing the various psychedelic and pop culture images that have represented LSD for more than thirty years, from Alice in the Looking Glass to Beavis and Butthead. Although somewhat hush-hush, McCloud and his collection have been featured in publications such as the Los Angeles Times, Wired and Loaded.
“McCloud has exhibited his collection in museums and galleries that have recognized that this is essentially a unique form of folk art,” wrote Ted Owen and Denise Dickson in their 1999 art book, High Art: A History of the Psychedelic Poster.
A book deal was even under way between McCloud and British art publisher Booth-Clibborn Editions to put a portion of the collection on coffee tables around the world. That deal stalled after the government seized the entire gallery and charged McCloud, for the second time in ten years, with conspiracy to distribute LSD. In 1992, while exhibiting some of the collection in Houston, McCloud was arrested, tried and acquitted of the same charges he found himself denying in Kansas City.
Throughout the trial, Oliver maintained that this gallery — the Institute of Illegal Images, as it was unofficially called — was nothing more than an elaborate cover for a major drug operation. “It is the perfect front,” he argued before the jury. “It is the perfect cover to distribute LSD.”
Of course, there’s an inescapable flip side to that argument: A museum celebrating blotter art is so blatant as to be perhaps the worst cover imaginable to distribute LSD.
Despite the defense’s predictable shots at the testimony of Armstrong, Skelly, Raya and Rodriguez (insinuating that they were coerced by the threat of imprisonment into naming McCloud), the prosecution’s most convincing evidence was still that all four gave the same story in court, hearsay or not. As to his reliance on drug dealers for witnesses, Oliver refused to apologize in his closing statement. “Conspiracies hatched in hell don’t have angels for witnesses,” he said pointedly.
But after this testimony, the prosecution’s case became more disjointed, requiring jurors to leap from one evidential dot to the next with no lines drawn between. They were told that LSD blotter seized in various spots around the country bore the same images and perforation patterns as paper in McCloud’s home — but no evidence was presented that showed the defendant did anything but sell the paper itself.
Jurors also heard about a package McCloud received in December 1999 that contained $24,000 cash — suspicious for sure, but Oliver never tied the money to any activity in the investigation. Instead, he left the jury to assume its criminal relationship.
A theatrical Weinberg, whose seasoned savvy routinely outwitted Oliver’s youthful bulldog approach, almost seemed to relish picking the prosecution’s case apart, particularly when DEA expert Edward Franzosa testified about the microscopic similarities between LSD papers seized around the country and paper in McCloud’s home. Franzosa could not say LSD was on the defendant’s paper, and the garish defense attorney proceeded to attack the entire presentation. Why no magnified images of perforations? Doesn’t your lab have a camera?
No, Franzosa responded, it does not.
Though unsubstantiated, at least the expert’s testimony was intelligible. When Oliver played a taped encounter between Scotland Yard detective Layton Williams and McCloud, the jury heard what sounded like a hurricane. Williams provided a written transcript of the tape to the jurors, but the judge later instructed them to consider only what they’d heard from the tape itself.
During an undercover operation in 1994, Williams flew from England to San Francisco to give McCloud new sheets of blotter paper for his collection, including a rare print of the ’94 World Cup soccer logo. He hoped this donation would grease the wheels for an incriminating LSD sale.
But on four occasions that Williams spoke with McCloud during that trip, his attempts to buy LSD failed. He returned to England with nothing to show for his efforts. McCloud, meanwhile, had a new piece for his collection, hand delivered by the hapless James Bond.
“Do you know what Mark McCloud did with the blotter paper he was so impressed with?” Weinberg asked Williams in cross-examination. The white-haired attorney then presented to the court the same sheet of World Cup blotter paper given to McCloud seven years before. Only now it was framed.
What began as a trial of a suspected drug dealer quickly became a discussion of blotter art’s validity; if McCloud and company could persuade the Kansas City jury that there really is an interest in LSD art, perhaps they would win. And with a courtroom full of untreated blotter paper, Oliver’s task of focusing on drug evidence became increasingly difficult as the trial progressed.
Jurors heard testimony that ran the gamut of art appreciation, from DEA agent Bill Carroll’s inability to identify a Salvador Dali painting on blotter paper to New York art critic Carlo McCormick’s unbending contention that sometimes the form and purpose of an art piece transcends the image itself. When asked by Oliver whether perforated blotter paper bearing a drawing of Mickey Mouse or the FBI logo actually could have artistic value, the aggressive McCormick didn’t hesitate: “That would be considered art all throughout the art world, sir.” Considering that Andy Warhol became an icon by replicating, well, icons, McCormick’s answer may have rung true to some jurors.
Defense witness Phillip Cushway, owner of the rock and roll memorabilia shop Artrock in San Francisco, testified that he had purchased for resale probably as many as 12,000 sheets from McCloud in the past decade. In Cushway’s catalog, regular prints list at $35, and prints signed by acid gurus Timothy Leary and Ken Kesey go for as much as $650.
On cross-examination, Oliver laid into Cushway over the witness’ 1991 marijuana conviction and an Artrock business report that showed sales in the hundreds (not thousands) of blotter paper. A confused Cushway struggled to explain that exact records were difficult to provide from the company’s precomputer years. Oliver’s point was that McCloud’s massive stock of blotter paper suggested that the defendant not only sold untreated prints in the retail art market but also sold treated LSD sheets in the drug market.
Later, Oliver challenged the common sense of another defense witness — San Francisco lawyer Alan Caplan — who purchased McCloud’s prints to distribute “as art” through his wife’s printing business. If someone purchased a hundred sheets of blotter paper, Oliver asked, “wouldn’t it raise the hackles on the back of your neck?”
The prosecutor implied that a person buying large quantities of blotter paper probably intended to dose it and sell it as edible art. In other words, how do you know you’re not selling the paper to drug dealers? That line of questioning pleased the McCloud team, which happily embraced Oliver’s point that when psychedelic-hungry Americans munch on tabs of acid, the paper may have originated with Mark McCloud. But the prosecutor could not establish where the LSD came from.
“How does [the evidence] prove anything other than Mark McCloud distributed untreated blotter art?” Weinberg asked the jury in his closing argument.
“This man’s no art dealer,” Oliver countered, before making an assertion he had not proven. “This man sells blotter paper with and without LSD.”
In an already exotic trial, these closing statements brought on the sort of entertaining antics one might expect in a high school mock trial. At one point, Weinberg used the three-and-a-half-foot-tall perforating board, displayed directly in front of the jury, as a stand for an enlarged copy of the jury’s “reasonable doubt” instruction.
Then, holding all the actual LSD presented by the government in his right hand (seized from busts around the country), Weinberg made a grand sweeping gesture toward the stacks of blotter paper found in McCloud’s home.
“That would fill a small room,” he said. “This wouldn’t fill a soup bowl…. That is a metaphor for the prosecution’s whole case.”
Before he finished, Weinberg made certain to address the cultural issue, the one unpredictable element of the trial: how the heartland jury would react to a San Francisco artist whose defense was that he operated a gallery paying tribute to LSD.
“Probably the one thing the evidence proves beyond a reasonable doubt,” Weinberg said, “is that [Mark McCloud] lives a very different life than you.”
In his rebuttal, Oliver wielded the “Welcome drug dealers come in back room” sign to remind jurors just how different. Then he coined a term for McCloud’s argument and instructed them not to buy into it.
“This is the paper defense: ‘It’s just paper. I’m just different,'” was Oliver’s interpretation.
For ten and a half hours, the jury considered the paper defense, and although there was no more testimony from unlucky secret agents or combative art critics, the case of United States v. Mark McCloud continued in its peculiarity even as both sides awaited the decision.
Once, the jury sent a question to Judge Fenner on a sheet of paper folded to the size of a quarter — or a couple of hits of acid. At one point, Oliver and Weinberg bickered over what constituted a “representative” collection of framed art for the jurors to view. After they reached a compromise, Susan Matross, Weinberg’s assistant, made one last addition — a framed sheet displaying Saturday Night Live’s tragic claymation hero, Mr. Bill.
“She likes Mr. Bill,” Weinberg informed an annoyed Oliver. “She’s a big Mr. Bill fan.”
Later, after Fenner had dealt with another query from the deliberation room and returned to his chambers, the sounds of psychedelic-era Beatles rose from the prosecutor’s laptop. With enough LSD paraphernalia in evidence to (if dosed) send the population of California soaring into the fourth dimension, the peaceful 1967 anthem “All You Need Is Love” played softly. Had Oliver’s contraband CD been Jefferson Airplane or Pink Floyd, the world’s supply of irony very well may have run dry.
The jury’s final note informed Fenner that it had reached a deadlock and believed further deliberation would not help. When he requested more discussion, the jury returned with its verdict of “not guilty” fifteen minutes later.
Three days after his acquittal, Mark McCloud does not cower after his near-prison experience, does not concoct some weepy monologue about hoping to resume a life of art and quiet and love. Instead, he sits back at his San Francisco home and (after bestowing praise on his jury) digs into a passionate condemnation of the government’s war on blotter paper, both treated and untreated.
“I want every LSD prisoner let go, whether they were a snitch or not,” he says. “I want their property returned and a public apology from these people who took our right to consciousness without permission.”
He speaks at a slow, languid pace that a sloth could transcribe, a pattern that might be irritating if the words themselves were boring. But Mark McCloud does not say boring things. He challenges the government and blasts the war on drugs. He claims he’ll fight battles with his art, maybe even design a new sheet of blotter paper with Oliver’s face on the front “and his ass on the back so you can spank it.” McCloud says things like that.
Of course, McCloud would be an idiot if he thought his bombastic nature wouldn’t attract more problems in the future, but he’s no idiot. (The score at press time: McCloud 2, government 0.) He knows exactly what he’s saying and who it’s pissing off.
“I’ve been fingered since 1987, when I put up the first blotter show at the San Francisco Art Institute,” he says. “[The DEA] wanted to know: ‘How come this guy’s got a better blotter collection than we do?’ I said: ‘Try a little honey instead of busting everyone; try to add some understanding to this.'”
They’ve been watching him for years now, he says, and they’ll keep watching for years to come. All right, so some might call that acid-induced paranoia, but there’s certainly evidence that he’s right (a couple of trials, for example). Not to mention that this isn’t over. Kathleen Brown is out there, the government is looking for her, and the investigation into this LSD conspiracy remains open. (For this reason, Oliver declined to comment on the trial.) To Mark McCloud, no walk down the street ever again will be only that.
“You have no idea what it is to get up every morning and go for a cup of coffee and find four guys following you every fucking morning of your life,” he says, “for doing something legal, for trying to do something better. You have no idea what it feels like to be followed every day of your life for your artwork.
“I am a target,” he adds. “I put blotter on the walls of every state in the country. And I ain’t finished yet.”