December 2009

Demanding Accountability

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D.A. blasts Astor son’s jail avoidance ploy

By Lou Ann Anderson

Brooke Astor

Assistant District Attorney Joel J. Seidemann has struck back with a vengeance in responding to Anthony Marshall’s attempt to avoid jail upon being convicted of 13 felonies and one misdemeanor in the estate looting case of Marshall’s mother, New York socialite and philanthropist Brooke Astor. Marshall, 85, filed a motion asking the court to throw out his Grand Larceny in the First Degree felony count that carries a mandatory prison sentence based upon New York law’s sparingly used “furtherance of justice” provision. Sentencing is set for Dec. 21.

The People’s response (marshall-peoples-response-to-clayton) indicates that while Marshall may be presuming his only threat of jail time lies with this one mandatory sentencing count, the D.A.’s office will recommend a prison sentence irrespective of the “furtherance of justice” motion ruling.

The Dec. 11 prosecution response pertains largely to Marshall’s motion, known as a Clayton motion for the precedent-setting case, asking the trial court to utilize its “furtherance of justice” power deemed to be exercised only on “the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.” Clayton motions call for courts to not act on “purely subjective considerations,” but instead perform “a sensitive balancing of the interests of the individual and of the People.”

Seidemann characterizes the filing of Marshall’s motion as not within the timing stipulated in New York Criminal Procedure Law thus concluding “a timely Clayton motion must point to a compelling factor to demonstrate that prosecution would result in injustice, an untimely Clayton motion carries the additional burden of showing that good cause justifies its delay.” Under CPL, Clayton motions are to be served or filed within 45 days after arraignment and before commencement of trial, or within additional time granted by the court upon application of the defendant made prior to entry of judgment. Having been arraigned on Nov. 27, 2007, the prosecution contends Marshall’s motion is 692 days late.

Calling this ploy “gamesmanship,” the prosecution positions Marshall’s motion as a ploy to avoid jail and says “It defies credulity to suggest that the Legislature would applaud Marshall’s ‘heads I win, tails you lose’ strategy: take the risk of going to trial and, if convicted, dodge any consequent mandatory prison sentence ‘in furtherance of justice.’”

With regard to the filing’s lack of merit, the People discuss Marshall’s greed and remind that Grand Larceny in the First Degree is “one of only a handful of financial crimes that the Legislature has deemed serious enough to warrant a mandatory state-prison sentence.” In discussing the extent of harm caused by the offense, Marshall’s victimization of his elderly mother is coupled with the concept that Marshall “stole from ordinary New Yorkers in order to enrich himself” by diverting funds that otherwise would have gone into his mother’s residuary estate and ultimately to charity.

Marshall is described as suggesting his theft caused no real harm to his mother as it was only a fraction of her approximately $200 million estate. To that, Seidemann responds “Marshall thus suggests that theft brings about no injury if the victim is wealthy - in other words, harm should be assessed on a sliding scale based on the victim’s resources. Taken to its logical conclusion, this argument would mean that no harm is caused by purse-snatching from a wealthy woman or by embezzling funds from a large corporation.”

Among other arguments against the lack of merit for Marshall’s motion, the prosecution discusses “history, character and condition of the defendant.” As with many other probate abuse cases, it describes and details how “this degenerate crime cannot be viewed in isolation; rather, it must be understood as one piece of Marshall’s lengthy, complex scheme to exploit his mother’s mental incompetence in order to loot her estate.”

Marshall was specifically convicted of coercing his mother into signing two codicils that stripped charities of over $30 million; stealing a John Frederick Lewis painting (valued at $250,000) from the wall of his mother’s apartment while she slept nearby; stealing a Tiepolo drawing (valued at $300,000) from his mother’s drawing room; telling housekeeper Mily DeGernier “that he can take what he wants”; stealing more than $600,000 from his mother to fund the upkeep of Cove End after he had already transferred the property to his wife; stealing $57,000 from his mother to pay the salary of his yacht captain, whom his mother never met; stealing over $70,000 from his mother to pay the salary of Erica Meyer, who spent the majority of her time working for Marshall’s “theater company”; and engaging in a multi-year scheme to defraud that netted him even more.

A list of expenditures he declined to make for his mother is also detailed including a refusal to install a $2,000 safety gate to keep her from falling down the stairs of her apartment as well as commitments of $117,000 to the Metropolitan Museum of Art for the purchase of a Buddha and $20,000 to the Black Alumni of the Pratt Institute. The prosecution contends that with an estimated estate value of $187 million in 2005, these expenditures seem modest.

Marshall’s private treatment of his mother is described as dismissive of her wishes and disconcerting via the isolation he imposed, including the firing of long-term, trusted employees. Although Marshall’s criminal trial disallowed testimony regarding the 2006 guardianship hearings in which Annette de la Renta was appointed Brooke Astor’s guardian along with JPMorgan Chase & Co. taking charge of Astor’s finances, such proceedings are discussed in the Seidemann response and characterize Anthony Marshall as untruthful and having a “fundamental lack of respect for the rule of law.”

While Marshall’s heroic military service and “gentle nature” are touted as additional reasons to dismiss the Grand Larceny charge, how does a failure to do so constitute “injustice”? A jury spent 17 weeks listening to testimony. When former Governor Mario Cuomo signed the 1986 bill to elevate Grand Larceny in the First Degree to a Class B felony, he is quoted as saying “a fundamental premise underlies the bill: white-collar crime can be deterred.” This case seems tailored for exactly what that bill was seeking to accomplish. A second goal of the Grand Larceny status elevation is described as “to close the punishment gap between street crimes and major economic offenses.” Allowing Anthony Marshall to potentially bypass prison defeats that purpose.

Legislation like the Elder Justice Act (currently part of government-run health care legislation) seeks preferential treatment of people under the law based solely upon their age and/or infirmity and/or incapacitation. Anthony Marshall is seeking the same thing. If we hold those who commit crimes against the elderly to a higher standard, what happens when an elderly individual commits the crime? Should elderly criminals also get special treatment by virtue of their age?

Prosecutors in the Marshall case say no - that Penal Law protects and punishes old and young alike. While our aging population certainly merits the need for attention to issues like elder abuse and exploitation, punishment for criminal acts should be vigorously imposed regardless the age of the victim or perpetrator. To do anything else will ultimately undermine American rule of law and serve to erode the public’s already fragile confidence in today’s legal system.

More Articles by Lou Ann Anderson

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