The Probate Lawyer Blog

The New York Department of Corrections decided recently to release Anthony Marshall from prison, only eight weeks into his one-to-three year prison sentence for committing fraud and a host of other crimes in taking advantage of his elderly mother, Brooke Astor.  Given how few crimes of financial exploitation of the elderly are actually prosecuted, it's a sad message to send. 

The New York District Attorney's office spent six months in trial and many millions to prosecute Anthony Marshall and his accomplice, attorney Francis X. Morrissey Jr., in 2009.  Facing enormous odds trying to prove an 85-year old multi-millionaire illegally exploited his mother, they secured a conviction for 14 counts out of 16, for financial exploitation, fraud, and a host of related crimes.

Immediately, Marshall began raising legal challenges and appeals pleading poor health and his advanced age as a reason to avoid the consequences of his crime.  Judge after judge rejected each one, finally landing the criminal in jail on June 21st.

News broke recently about a global settlement involving the estate of Brooke Astor.    The renowned New York society queen and philanthropist, who died at age 105, left behind an estate of nearly $200 million dollars.  

Astor’s assets — along with the $50 million charitable trust of her late husband — have been tied up since she passed in 2007.  The fighting was so extensive that it dragged in a “who’s who” of top New York City institutions, including the Metropolitan Museum of Art, Carnegie Hall, the New York Public Library, Rockefeller University, and even the United Nations, among many others.

Under Astor’s 2002 will, her only son, Anthony Marshall, stood to inherit tens of millions of dollars, with most of it slated to pass to charity after he died.  But Marshall wanted much more.  He and a lawyer,  Francis X. Morrissey, Jr., convinced the elderly Astor — when she was suffering from dementia — to sign a series of codicils to Astor’s 2002 will.  These codicils would have allowed Marshall to leave much of Astor’s fortune to whomever he wanted (specifically, his younger wife, whom Astor reportedly detested) instead of to charity.

Huguette Clark is a 104-year mysterious and reclusive New York multi-millionaire whose situation bears a striking resemblance to that of the late Brooke Astor.  Like with Astor, Clark is now the subject of a guardianship proceeding in New York brought by relatives who fear that she has been financially exploited.  Clark's fortune is estimated to be worth half a billion dollars. 

Clark is the daughter, and only surviving child, of William Andrews Clark, who died in 1925 and was described as the first or second richest American at that time.  He built his wealth through copper mining and served as a senator of Montana.  Many believed his daughter had died long ago.  Indeed, she hadn't been seen in the Fifth Avenue apartment that she lived in (and still owns) in 22 years.

An Investigative Reporter for MSNBC.com recently published a lengthy two-part article about Clark and how she has resided alone, in an ordinary New York hospital room, for those 22 years, while her attorney, Wallace Bock, and accountant, Irving Kamsler, managed her finances and reportedly barred her distant relatives (including half-nieces and half-nephews) from visiting.

Anthony Marshall and the attorney he conspired with, Francis Morrissey, each received jail sentences earlier this week for 1 to 3 years.  They had been convicted of looting Brooke Astor, Marshall's mother, out of $60 million by convincing her to change her will when she was mentally unable to comprehend it due to Alzheimer's disease, along with related crimes. 

Marshall's attorneys had pled for leniency, citing his advanced age, poor health and doctors' reports saying any jail time would equate to a death sentence for him.  The Probate Lawyer Blog covered the defense lawyer's efforts in this recent article.

The judge wouldn't hear of it.  He noted how sad it was that a life of extreme abundance led to such sadness, particularly when Marshall's own son took the stand and "tried very, very hard to destroy" Marshall.

The judge did consider that Mrs. Astor loved her son, the judge felt, along with other mitigating factors, so he did not impose the 4 1/2 years that the prosecutors requested.  In fact, the judge said he actually preferred a different sentence.  He wished he could cause Marshall's many millions to be donated to charity and leave Marshall in the hands of his wife (for whom he committed the crimes, the judge said) to care for him -- without his money.

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.

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 @ brmmlaw.com.

An interesting article came out today by the Associated Press about how professionals who combat financial abuse against seniors can hold up the Brooke Astor verdict to raise awareness of the growing epidemic.  You can read the article here. 

Jennifer Peltz, who wrote the article, discusses how advocates against financial exploitation of the elderly hailed the verdict and how it is far from alone.  She points that there have been many other famous cases involving the rich, such as J. Steward Johnson (heir to the Johnson & Johnson fortune) and Anna Nicole Smith versus the son of her late 90-year-old billionaire husband. 

The really sad part is that this problem affects many more than the wealthy in America.  Indeed, with our country's troubled economic times, the problem of people stealing from and coercing seniors out of their money is getting worse and worse.  And the best prevention is for families to be proactive and protect their aging loved ones, especially once there is a diagnoses of dementia or Alzheimer's disease.

The jury verdict is in for one of the most intriguing will contest cases ever.  The son of the late New York philanthropist and millionaire, Brooke Astor, had been charged with 16 counts related to fraud, larceny, forgery, and more, stemming from changes to her will and related (alleged) wrongdoing.  Here are my prior blog articles on the case.

Well maybe you can remove the word "alleged".  The jury convicted Anthony Marshall and his co-defendant, lawyer Francis X. Morrissey, Jr.  Marshall, age 85, faces up to 25 years in jail based on the guilty verdict for 14 of the 16 counts, including fraud in connection with her will, larceny, conspiracy and a host of related charges.

While some of the convictions do not surprise me -- especially the retroactive lump-sum pay raise he gave himself of $1 million (for managing Astor's finances) -- I must express my surprise at the will-related convictions.  People with Alzheimer's have good and bad days, and proving Astor was incompetent at the moment of signing, based on the high proof required in a criminal case (beyond a reasonable doubt), was very hard to do. 

But the prosecution was aggressive.  The trial lasted more than 19 weeks and involved 72 witness who testified (in varying degrees) about Astor's mental decline.  Only two of these were defense witnesses.