After Judge A. Kirke Bartley Jr. yesterday handed Brooke Astor's son the minimum sentence for swindling his mother -- one to three years in state prison -- one of the prosecutors said he wasn't surprised. After all, there was that photograph in the judge's chambers of his beloved father in uniform, suggesting the judge would be sympathetic to another old soldier -- Anthony Marshall was wounded at Iwo Jima.
Which isn't to say the day was lacking in drama. It began when Mr. Marshall, looking ineffably fragile, emerged from an elevator on the 15th floor of the Criminal Courts building in Manhattan. He was supported by his wife Charlene, whose eyes were bloodshot, her features a rictus of fear and grief.
The two proceeded to the courtroom where, for one last time, prosecutor Joel Seidemann detailed the fourteen counts of which a jury in October had convicted Marshall, and asked the judge to send him to prison, if for no other reason than to send a message across America that elder abuse was a crime that shouldn't be tolerated. He noted that if one of Mrs. Astor's twenty-three employees had stolen from her a fraction of what her son had, there is little doubt they'd do prison time. He also asked that Marshall be made to pay over $12 million in restitution.
Then it was the defense's turn. John Cuti, one of Marshall's lawyers, predictably read from some (actually it felt like most) of the more than seventy letters imploring the judge to spare this 85-year-old man what amounted to a death sentence. The judge, who has run an impressively tight courtroom -- interrupted by moments of almost comic book rage, usually promoted by the lawyers' bickering -- didn't disappoint on the trial's ultimate day. When Ken Warner, one of Mr. Marshall's attorneys, went on a bit too long listing the defendant's ailments, Judge Bartley Jr. shouted, "Tell me something I don't know, please." One might have mistakenly thought he was getting ready to throw the book at Mr. Marshall and his co-defendant Francis X. Morrissey.
The two sides spoke, and Anthony Marshall passed up the opportunity, as he has throughout the trial, to plead for mercy, or even just to explain why he thought it essential that he tamper with his mother's will so that he received $54 million after taxes, rather than the $23 million he'd have gotten if he hadn't touched the will and let her die in peace. "I have nothing to add to what my attorneys have said," he told the judge in the elongated cadences of an earlier era's upper crust. Then the judge shared his thoughts on the defendant's actions in highly personal tones.
He said that if he was allowed to be Solomonic, he'd disburse Mrs. Astor's estate to charity and send Tony home with Charlene, the implication being that there's no accounting for a man choice's choice of a wife. The judge added he believed Tony's motivation was to provide for Charlene after he died, adding that in a "sadly ironic turn of events that result seems to have been accomplished. Your wife looks to inherit a great portion of your mother's vast fortune." The judge didn't complete the thought -- which seemed to be that he manifestly didn't believe she deserved it.
It was about then that Judge Bartley, his voice trembling, talked about how his own father, the man he admired most in the world, had passed through training at Parris Island during World War II mere months after Tony Marshall had and that Mr. Marshall's service to his country wasn't lost on the judge. "Justice may be blind; I am not. I'm particularly mindful of your sacrifice in World War II. That sacrifice is one that is particularly meaningful for me." He also took a shot at Tony's son, Philip Marshall, suggesting that the spectacle of the son testifying against his own father haunted the judge. He described it as "one of the saddest moments I have ever seen in this court. Your son tried the very best to destroy you."
Then he pronounced the lenient sentence, the minimum he was required to give him by law -- one to three years in state prison. He also denied the prosecution's request for restitution, saying that matter was better settled in surrogate's court. However, Mr. Marshall wasn't led off in handcuffs. The judge agreed to stay the sentence for a month and it's unlikely Tony Marshall will ever see the inside of a prison cell. His lawyers will try to run out his life filing appeals. As prosecutor Seidemann noted outside the courtroom, it will probably take the appellate judge who reviews the case anywhere from six months to a year just to read the 17,000 page trial transcript.
After a lunch break, Francis Morrissey, Mr. Marshall's co-conspirator, was sentenced to the same term of one to three years, the judge describing him as an "enigma." His well documented acts of kindness to the poor and dispossessed were negated by the most egregious moral and ethical lapses, not only in this case, but throughout his career.
So was justice finally done? Mr. Seidemann contends that the high profile trial raised America's awareness of elder abuse. Nonetheless, walking away from the courthouse, it didn't feel entirely as if justice had been served. The case now returns to surrogate's court and even in the worse case scenario, Charlene and her children will probably inherit in excess of $20 million.
The chances are better that Francis Morrissey, 66, unlike Mr. Marshall, will run out of appeals before his heart ceases. And he'll probably be disbarred. But his legal specialty -- befriending elderly widows and finding himself the beneficiary of their estates -- doesn't require a license.
The judge observed that he believed that Brooke Astor loved Tony and that he loved her, and that she wouldn't want him to go to prison. That may or may not have been true. But one thing is for certain: In her prime, Brooke Astor would have redeemed the occasion with her spirit and wit. There was no redemption to be found throughout this trial, and it's final day was no different.