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Will Brooke Astor's son ever see jail time? Should he?

The Brooke Astor trial was a fascinating portrayal of greed and exploitation involving New York's upper, upper crust society.  You can read The Probate Lawyer Blog's coverage of the Brooke Astor case here.  Brooke Astor's son, Anthony Marshall, and one of her attorneys, Francis X. Morrissey, Jr., were convicted of fraud, larceny, conspiracy and a host of related charges related to management of her financial affairs and changes to her will that occurred after she was diagnosed with Alzheimer's disease.Brooke Astor

Because of this, Anthony Marshall, who is 85 years old, faces up to 25 years in jail.  But whether he actually sees any jail time is a big question.  He will certainly appeal the verdict and his lawyers will pull out every trick in the book to try to keep the millionaire from seeing the inside of a jail cell.

In fact, they've already started.  A few days ago, the Associated Press reported that Marshall's attorneys filed a request asking the judge to dismiss the charges "in furtherance of justice".  They say his condition is so frail (following quadruple bypass surgery, a stroke, and suffering gastrointestinal disease) that any jail time would be tantamount to a death sentence, because he would not survive it. 

To support the request, they supplied 70 letters of support and doctor's reports.  The letters attest to his good character and even include ones written by Whoopi Goldberg and Al Roker.  They point to his otherwise clean record and say he's suffered enough.

So what do you think?  Has the 85-year old been punished enough through the 5-month trial and guilty verdict that he doesn't deserve jail time?  This was a non-violent crime, should he forced to go to prison when it may kill him?

I for one believe he should go to jail.  His conviction sends a message that those who exploit the frail and elderly can be punished.  If he is allowed to get off because of poor health and wealthy friends, what kind of message does that send? 

A jury carefully deliberated for 12 days and found him guilty of almost every count.  If a judge throws that out, not because of the evidence, but because he feels sorry for Marshall,  why even have a jury trial?  This type of legal maneuvering rarely works.  Otherwise, the criminal justice system wouldn't function. 

If Marshall's effort fails, he is scheduled for sentencing on December 21st.  And, to top it off, this is not the only legal worry he has resulting from the case. 

Others (most notably, his own son) had previously started will contest proceedings to challenge Brooke Astor's estate planning documents, which left increasingly higher amounts to Marshall as she continued to age (she was 105 when she passed).  The civil case was put on hold when the criminal case started.

But now, it's swinging back into action.  Lawyers held a private meeting this week to discuss the case in advance of the next court date, January 13, 2010.  While the criminal case determined that Ms. Astor's most recent will amendments were invalid (meaning that those documents will be set aside with ease in the civil case), prosecutors did not focus on earlier documents which are under attack now.

In other words, Marshall may lose more than the $60 million that was affected by the will codicils that have already been found to be invalid by the criminal jury.

Marshall certainly cannot handle another protracted legal battle, physically and maybe even financially.  There's a good chance that this case will settle -- that's probably what this lawyers' meeting was all about.

So we'll continue to keep a close eye on this case.  Hopefully others who would seek to take advantage of someone elderly (a growing problem in this country, especially with this economy) will think twice because of cases like this one.

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 @

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