Jail time for Astor estate looters still in question
Lou Ann Anderson
December 21, 2009
www.EstateofDenial.com

Will Anthony Marshall and estate attorney Francis Morrissey spend time in jail for having looted the estate of Marshall’s mother, New York socialite and philanthropist Brooke Astor?  Yesterday, the answer was maybe.  This morning’s sentencing, deemed by the New York Post as a lengthy beg-a-thon for mercy, left real jail time as still an unknown.  Marshall and Morrissey both received one to three year sentences.  Whether either man will spend time in prison, however, is at best a “maybe” as legal maneuvering to help the defendants delay if not avoid serving jail time appears in full swing.

The assessed jail time may sound like positive news for those who believe stringent punishments for estate theft and financial elder abuse are needed, however, the reality will likely produce a far more benign outcome.

Here’s how The New York Times explained Justice A. Kirke Bartley Jr.’s sentencing of Marshall:

The sentence was for the most serious of 14 counts on which Mr. Marshall was convicted: first-degree grand larceny, for giving himself a retroactive lump-sum raise of about $1 million for managing his mother’s finances. Justice Bartley also sentenced Mr. Marshall to one year on each of the 13 other charges he was convicted of, to run at the same time as the longer sentence.

The sentence was the minimum allowed and less than the prosecution’s recommendation.  Media reports vary, but generally predict that if sent to jail and with good behavior, Marshall would likely serve eight months to a year.  The New York Post described Marshall’s efforts to stall or stay out of jail like this:

Marshall had lost his bid to stay out of jail entirely before the sentencing even began, when the judge, Manhattan Supreme Court Kirke Bartley, denied the defense request that the one charge carrying a mandatory one-year prison sentence be tossed “in the interest of justice.”

But he has other bites at that apple. Among the pitches defense lawyers say they may try — in the unlikely eventuality that an Appellate Court judge won’t let Marshall stay out on bail pending appeal — are the state corrections’ medical parole and work furlough programs, said defense lawyer John Cuti.

Morrissey is reportedly appealing his sentence as well. Both men are currently scheduled to surrender on Jan. 19., but if allowed to remain free on bail during appeal (especially considering the trial length and volume of accompanying evidence), either man could have continued freedom for years.

The question of restitution was sidestepped as the Post reported:

The judge begged off the issue of how much money Marshall must pay back — saying that was best left for surrogate court judges to decide.

The Associated Press said this:

Meanwhile, a fight over Astor’s estate continues in civil court, pitting Marshall against several charities. It was on hold during the criminal case.

Citing the will fight, Bartley turned down prosecutors’ request to force Marshall to pay more than $12 million and Morrissey more than $237,000 as restitution.

Throughout the trial, Morrissey’s role received less attention than that of Marshall.  Although Morrissey has a questionable history, the influence and enabling potential which an unethical attorney can bring into a situation is devastating and, at this point, not adequately discussed.  Perhaps it will be in the future.

Meanwhile, though Marshall was characterized as unemotional today, his wife Charlene was described as crying throughout the proceeding.  Though not indicted, the prosecution spent months openly attributing Marshall and Morrissey’s estate looting efforts to the greed of Marshall’s wife, 20 years his junior.  A recurring theme was immense dislike between Brooke Astor and Charlene Marshall and fear on the part of Anthony Marshall and his wife that Astor would outlive her ailing son thereby denying Charlene an inheritance of Astor assets.

Per the Post, additional courtroom emotions seemed to be running high - even with Justice Bartley:

Among Marshall’s afflictions, as described by his lawyers, are his bad heart, high blood pressure, teetering balance, serious diverticulitis, and — a new one — a Parkinson’s-like ailment, recently diagnosed.

“I am mindful of his medical condition,” Manhattan Supreme Court Justice Kirke Bartley snapped, angrily, as Marshall’s lawyers threatened that their client will die in prison.

“If you don’t think for one moment that I haven’t taken great pains to review that, you are absolutely wrong sir. Tell me something I don’t know.”

Astor grandson, Philip Marshall, also garnered criticism by the judge:

The judge also said he was much moved by Marshall’s health issues, by his heroic service during WWII, and by the ordeal of seeing Marshall’s own son, Philip, take the stand against his father.

“Watching him try his very, very best to destroy you — it was one of the very, very saddest moments I have witnessed in this courtroom.”

Today’s sentencing sounds to have been far from a “profile in courage.”  No wonder Justice Bartley would fail to understand Philip Marshall’s actions.  The sentencing followed the minimum time mandate and then, through discretion, Justice Bartley assessed jail time with no functional penalty due to the concurrent or stacked sentences (one year for each of 13 remaining felony counts running simultaneously with the mandatory sentence).  And potential restitution is relegated to a civil court.

Whether Anthony Marshall or Francis Morrissey ever see the inside of a prison remains to be seen.  While getting out of jail will be far from “free,” the prospect of staying out on bond during a lengthy appeal as well as Marshall’s options for alternative programs give each man a better than usual chance to avoid incarceration.  Financial resources and access to professionals well-versed in legal gamesmanship will be key to their future success.

Proceedings from today might seem positive for those desiring stronger punishments for probate abuse and elder exploitation, but a closer look reveals otherwise.  In a letter to Justice Bartley, former Astor butler Christopher Ely said “My only wish is that you can send a strong message to all who abuse, or are thinking of abusing the elderly and mentally incapacitated.”

A message was sent - however it may not be the one for which many folks hoped.

Lou Ann Anderson is an advocate working to create awareness regarding the Texas probate system and its surrounding culture.  She is the Online Producer at www.EstateofDenial.com and a Policy Advisor with Americans for Prosperity – Texas Foundation.  Lou Ann may be contacted at info@EstateofDenial.com.