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Interesting twist in the Brooke Astor trial

While the Michael Jackson Estate has been capturing the nation's attention recently, the Brooke Astor trial has been a bit overlooked.  For months, it made headlines in New York (and elsewhere to a lesser extent), and for good reason.  How often does a multi-multi-millionaire go on trial -- criminally -- for allegedly committing fraud against his own mother by getting her to change the will in his favor?  Not only is this rare, it's never happened before to my knowledge.Brooke Astor 2

I discussed the trial of Anthony D. Marshall in this article a few weeks ago.  There is some damaging evidence against him, which has caused many people to assume that he'd be found guilty.  For example, his mother was diagnosed with dementia/Alzheimer's disease back in 2000 before signing the 2004 amendments to the will which are in question.  Marshall even wrote a letter to her doctor about her mental decline which helped lead to the diagnosis.

But, despite this and other evidence (including the testimony of many witnesses who believed Astor wasn't competent and was confused who her son was at times), I believe it is very unlikely that Marshall and his alleged accomplice, attorney Francis X. Morrissey, Jr., will be found guilty on the will-related charges.  The larceny and similar criminal charges, unrelated to the will, are another matter.

Why do I think this way about the will-related charges?  Because it's hard enough in a will contest case in probate or civil court to convince a jury that a person didn't know what he or she was signing as of the moment of execution.  People with dementia and Alzheimer's disease have good days and bad, lucid moments and confused ones.  If you weren't there, how can you say for sure she didn't understand what she was signing at that moment?  These cases are tricky.

And this case is far more difficult to prove because the prosecution must show that Marshall committed this fraud (or various related crimes) beyond a reasonable doubt.  This standard is much tougher to meet than in a typical will contest case.

So where's the interesting twist?  The New York Times published this article recently about an alternate juror who was excused from the case, for reasons which have been kept confidential.  This juror said that, based on what he'd heard so far (over the course of many weeks of testimony), he believed Brooke Astor was a smart lady who knew what she was doing.  He also felt Marshall was getting so much money already, there was no motive for him to commit fraud to get more. 

The prosecution's case is built around a motive that Marshall was trying to increase what he could give to his wife -- whom Astor apparently did not like -- but this juror felt that Marshall wasn't the type of man to be controlled by his wife. 

Keep in mind, this was just one juror, and he said he hadn't discussed the case with other jurors.  Also, he was excused before the case was over, so he hadn't heard all the evidence (although he certainly heard quite a lot of it).  But, his feelings about the case certainly confirm my suspicions that Marshall will most likely be found not guilty.

Will my suspicion be proven correct?  We still have a long way to go to find out.

Posted by:  Author and probate attorney Andrew W. Mayoras, co-author of Trial & Heirs:  Famous Fortune Fights! and co-founder and shareholder of The Center for Probate Litigation and The Center for Elder Law in metro-Detroit, Michigan, which concentrate in probate litigation, estate planning, and elder law.  You can email him at awmayoras @ brmmlaw.com.

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