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Lawyer, Socialite Astor's Son Stole Millions Intended for Charity, DA Says
New York Law Journal
April 28, 2009
In an opening statement spanning more than three hours, a New York state prosecutor accused Anthony Marshall and a lawyer he hired of "lining their own pockets" with millions of dollars that socialite Brooke Astor had intended be given to her "crown jewels" -- New York City-based charitable and cultural institutions such as the New York Public Library and the Metropolitan Museum of Art.
In a methodical opening statement with a few charged moments, Elizabeth Loewy, the head of the Manhattan district attorney's office's elder abuse unit, said that Marshall, who is Astor's son, and lawyer Francis X. Morrissey had "exploited" Astor's degraded mental capacity to "steal" $60 million that she had intended to go to charities.
Marshall, 84, who entered the courtroom stooped and leaning on a cane, did not react as Loewy accused him of stealing from his mother and her intended beneficiaries.
Acting Supreme Court Justice A. Kirke Bartley, who is presiding over the trial, excused the jurors at 4:30 p.m. before the defense began presenting its opening statement. Frederick P. Hafetz is expected to deliver an opening statement for Mr. Marshall this morning, followed by Thomas P. Puccio, who will open for Mr. Morrissey.
Astor, a grande dame of New York society, died in August 2005 at 105, leaving an estate valued at $132 million, in addition to a $60 million trust.
At the core of the criminal case against Marshall and Morrissey, 66, is the charge that the pair prevailed upon her when she was so diminished by Alzheimer's disease to persuade her to sign a codicil to her 2002 will that made Marshall the outright heir of her residuary estate instead of having it pass ultimately to charities.
Morrissey is accused of forging Astor's signature to the third, and final codicil she executed to her will in March 2004.
Astor's 2002 will had provided that Marshall receive $5 million, approximately $40 million worth of real property and portions of her personal belongings, including jewelry and art work. Marshall was to have received 7 percent of the residuary estate annually during his lifetime with the principle to pass to charitable groups upon his death.
Loewy, whose elder abuse unit built the criminal case, accused Marshall of seeking a "radical" reordering of his mother's estate by convincing her that she lacked money to buy new clothes and other items she prized over the years.
Loewy said Astor had been "embarrassed" by Marshall's marriage to his wife, Charlene, who had been married to the pastor of the church in Cold Harbor, Maine, where Astor had a summer home.
Because Astor had made clear her intent that she did not want any of her property going to Marshall after her son had died, Loewy said, Marshall was "motivated" -- and had been "pressured" by his wife -- to reorder his mother's financial affairs so that he "would have more to provide for himself, his wife and his wife's children."
Loewy said that Henry Christensen III, who was Astor's lawyer for 10 years before he was fired by Marshall in early 2004, would offer critical testimony about Astor's intentions for her estate.
Loewy, however, said Christensen, who was also a close friend of Astor, had let his client down.
Christensen, who at the time was with Sullivan &. Cromwell, a firm that had counseled Astor regarding her personal wealth for 50 years had two clients: Marshall and Astor, said Loewy.
Three times in 2003, at a time when Astor's mental powers were diminished, Loewy said, Christensen succumbed to "pressure" from Marshall. After spending lengthy sessions with his long-time client, she said, Christensen prevailed upon her to make to substantial gifts to her son: her Cold Harbor estate, valued at $5.5 million, and a separate gift of $5 million.
On Dec. 18, 2003, Loewy said, Christensen had Astor execute a codicil to her will giving Marshall authority to determine the charities that would receive nearly 50 percent of a $60 million trust established upon the death of her third husband, Vincent Astor, despite misgivings that led him to label the document as Astor's "first and last codicil."
In another context, Loewy said, "at least" Christensen "could recognize when someone else had a conflict." Christensen is now a partner at McDermott, Emery & Will.
With respect to the forgery charge, Loewy told the jury Monday that Morrissey was the sole lawyer with Astor when she signed the codicil on March 3, 2004. Morrissey had gathered two of Astor's employees to witness the will, and kept the lawyer he had helped hire, Warren Whitaker, away from the signing for fear he would see that she was in no condition to make a change.
Morrissey either forged the codicil himself or supervised someone else forging it, she said.
Monday's session ended with a heated motion for a mistrial from the defendants, with Justice Bartley saying he would reserve decision.
Both Hafetz and Puccio demanded a mistrial because Loewy had related two episodes in which a second lawyer for Marshall, Kenneth E. Warner, had been hired to do legal work for Astor without her knowledge or approval. One of the episodes, involved the retrieval of her legal papers from Christensen after he had been fired.
The prosecution had moved during pretrial to disqualify Warner, which was denied. The defense claimed the prosecution had gratuitously injected him into the case Monday to "tar" the defense.
UGLY FAMILY DISPUTE
A year before Astor died, an ugly family dispute broke into public view when Marshall's son, Philip, sued his father, claiming that he had neglected Astor's care and mismanaged her finances under a power of attorney.
A court evaluator found the charges of neglect unsubstantiated, but Marshall, who had worked for the Central Intelligence Agency and was an ambassador to several small nations, agreed to relinquish any role in managing his mother's affairs.
Annette de la Renta, a long-time friend of Astor's, and Chase Bank were appointed to replace Marshall. A stipulation provided that financial disputes over Marshall's handling of Astor's finances was to be postponed until after her death.
In late 2007, Marshall and Morrissey were indicted on 18 counts accusing them of conspiring to take advantage of her mental state.
Astor had executed three codicils to her will. The first, dated Dec. 18, 2003, was signed under Christensen's supervision, and the latter two -- executed on Jan. 12 and March 3 in 2004 -- were supervised by Morrissey.
The largest change was made in the Jan. 12, 2004, when Marshall was made the outright heir to Astor's residual estate.
The March 3 change, which Morrissey is accused of forging, would have mandated the sale of Astor's 14-room apartment on Park Avenue and her 65-acre estate in Westchester upon her death.
With an asking price of $34 million for the apartment and $13 million for Holly Hill in Westchester, the change would have enhanced the fees Marshall and his co-executors -- his wife and Morrissey -- were entitled to collect.
Proceedings in Westchester County Surrogate's Court have been stayed pending the outcome of the criminal case.
The defense is expected to argue that if Astor was of sound mind for purposes of executing a codicil in late 2003, claims that she lacked capacity a few months later are bogus.
Marshall is named in 16 counts charging him with crimes such as a scheme to defraud, grand larceny and conspiracy. He faces a maximum sentence of 8 1/3 to 25 years if convicted of first-degree grand larceny, the most serious of the 16 counts he has been charged with.
Morrissey could be sentenced to a maximum of 2 1/3 to seven years on the top of six counts against him, second-degree forgery.
