Wednesday, April 29, 2009

A New York Story

In the New York Post of April 29th is the story, written by Laura Italiano, of the start of the defense’s presentation in the criminal fraud trial of Anthony Marshall, son of the late philanthropist and socialite Brooke Astor. Francis Morrissey is a co-defendant and was Mr. Marshall’s lawyer for the transaction under review. What follows is an adaptation of the Post story; quotations used were taken directly from the story.

Prosecutors claim that in 2004 Mr. Marshall and Mr. Morrissey manually transported Mrs. Astor, then 101 years of age and beset with Alzheimer’s disease, from the arms of her in-house nurse and down the hallway into the drawing room of her Park Avenue apartment (incidentally, it seems if you have a drawing room in your family, you are more likely to have experience with will contests than families without drawing rooms). Once there, she was, according to the Post story, confronted by a batch of… dark suited and gravely officious lawyers. And then she signed an apparently prepared codicil leaving 60 million worth of cash and bonds to Mr. Marshall. Mrs. Astor died a few years ago, at the great age of 104.

Fred Hafetz is Mr. Marshall’s defense attorney. Mr. Hafetz is a renowned criminal defense attorney, specializing in white collar crime. He successfully defended former Miss America Bess Meyerson, who was accused of bribing a judge in the competition that awarded her that title (perhaps the reigning Miss. California should have thought of that; e.g. Here's $50, ask me about world peace). I had occasion once to talk to Mr. Hafetz by telephone. He is grateful to my mother for a kindness done his family, and so agreed to counsel me on a career in the law. He is a nice man, and has a solid gold bar for a legal resume. Mr. Hafetz put up a slide during his opening remarks noting that Mrs. Astor, known to history as a philanthropist, gave nothing to charity between the years 1953 and 1993. In 1993, Mr. Marshall eloped with his current wife, Charlene. Mrs. Astor is recognized not to have been fond of Charlene, and the defense alleges she registered her disapproval by giving gobs of Mr. Marshall’s legacy to charity and by writing a series of wills, all of which kept Mr. Marshall from eventual possession of the 60 million, which before 1993 had been vouchsafed to him in each of a series of wills executed by Mrs. Astor (apparently, Mrs. Astor enjoyed executing and revising will instruments: Mr. Morrissey’s lawyer, noting her enthusiasm for the work, joked in his opening that “she probably could have taught trusts and estates at Harvard Law School”). Mr. Hafetz said in his opening statement that in 2004, nearing the end of her life, a lucid Mrs. Astor softened toward her son, if not also his wife, and signed the 2004 codicil that reinherited Mr. Marshall. Mr. Hafetz told the jury, “[s]omeone with dementia, someone with Alzheimer’s, is still a human being…[t]hey do not forfeit their human right…to make decisions.”

The prosecution seeks to prove its case by exclusively circumstantial evidence; testimony from household staff and famous friends of Mrs. Astor (among them Barbara Walters and Henry Kissinger) that the grande dame lacked the competence to meaningfully sign the codicil.

We’ll see who prevails, which is not necessarily the same thing as who is right. For what it’s worth, Andrea Peyser, writing a related opinion piece in the Post that is not a study in subtlety, thinks she knows where the merits lie: “Mrs. Astor, I fear, is rolling in her grave. Anthony Marshall should burn in hell.”


concerned senior said...

Yes, persons with Alzheimer's are still human beings. There is no question on that. Yes, they can still make decisions. But the question is whether the decision is a sound one or not. If Mr. Marshall is indeed guilty of taking advantage of Mrs. Astor's disease, then morally he has no right in taking even just a single centavo from the old lady's money. Sadly, moral righteousness doesn't necessarily mean legal justice. Let's just hope that Mrs. Astor's money won't fall into undeserving hands.

David Hutchinson said...

Well, that's right. The language you take issue with is Mr. Hafetz', used in his address to the jury.

I (and the prosecution, no doubt) hope that each juror had a reaction similar to yours upon hearing those words.

I am constrained to take issue with your comment to this extent: while I agree Mr. Marshall is in trouble if he is found to have taken advantage of his mother's faith-testing disease, that is a separate issue from the quality of the decision taken. The law (civil or criminal) does not correct for the consequences of a dumb decision if the thing is not arrived at in an impermissible way (e.g. via coersion; duress; undue influence; madness).

But see the case of poor Mrs. Helmsly's last will and testament, I suppose. That departed woman's clear, sane, but unorthodox intention (she really, really likes dogs)looks in jeopardy of frustration.