07/31/2009 05:12 am ET Updated May 25, 2011

Brooke Astor Case Is In The Wrong Court

It's always hard to reach conclusions about cases in court from reading about them in the newspaper. But the issues in People v. Marshall are pretty clear. Without the legalese, this is what is charged:

Anthony Marshall, 85, the only child of Brooke Astor, is charged with stealing her property while she was alive and conspiring with Francis Morrissey, a lawyer, to steal from her by inducing her to amend her will to leave the proceeds of the Vincent Astor Trust to him personally and not to various charities.

The theft of property allegedly arises principally from Marshall's sale of a painting by Childe Hassam belonging to his mother and the payment of a $2 million commission to Marshall out of the sales proceeds. He had a power of attorney from his mother, which required that the sale be in her interest, but not that he had to get her explicit permission to make the sale.

The conspiracy to steal allegedly arises from Marshall and Morrissey agreeing to manipulate a change in Mrs. Astor's will on January 12, 2004 because she was demented on that date, thus making that change their act rather than Mrs. Astor's volitional act.

At the trial of these charges, the District Attorney is going on at length with a parade of celebrities, boldface names, socialite buddies of Mrs. Astor, loyal retainers such as nurses and secretaries, including her audiologist, all averring that Mrs. Astor had Alzheimer's disease, rendering her unable to remember anything other than that she hated Mr. Marshall's wife. That, they say, she remembered. None --none -- of this celebrity testimony describes Mrs. Astor's mental state on January 12, 2004, the date of the amendment.

Thus, there is a dispute as to the propriety of Marshall's performance under a power of attorney and there is a dispute as to whether Mrs. Astor knew what she was doing on January 12, 2004. (Incidentally, the District Attorney does not allege any infirmity in a separate amendment executed by Mrs. Astor in December, 2003, just one month before the one alleged in the indictment.)

Powers of attorney such as the one in this case typically contain language exonerating the grantee of the power from any liability for anything except stealing.

The law is clear that it makes no difference what Mrs. Astor knew or didn't know when speaking to Henry Kissinger, David Rockefeller, Barbara Walters and the other worthies paraded before the jury unless they spoke to her on January 12, 2004. The fact of dementia is irrelevant unless Mrs. Astor was demented on that day. The law recognizes that people with dementia can have periods of lucidity.

The probate courts of this country are teeming with civil will contests alleging the same sorts of things charged in this criminal case. In these civil cases, disinherited relatives and charities charge that the will offered for probate is the result of undue influence, manipulation of an incompetent testator, lawyer-instigated will changes having no relationship to the desires or the intentions of the deceased, and above all, the improper inducement of the deceased's legacies to retainers, boyfriends, girlfriends, and non-relatives. Anthony Marshall is Brooke Astor's only child, not a butler or boyfriend, and as such he is the natural object of her affection.

It is in the civil courts that this case belongs. Assuming that Anthony Marshall caused his mother to do things in will amendments that she had no intention of doing, the proper remedy is to see to it that he gets no part of her estate and that the charities she long championed benefit from her largesse with her husband's fortune.