Lawyers for Anthony Marshall, 89, say jail will have 'lethal consequences' as he suffers from Parkinson's and dementia
The ailing son of the late New York socialite Brooke Astor will find out on Thursday if he is to serve out a prison sentence for looting his mother's fortune, after a judge declined an eleventh-hour appeal on the grounds of his health.
In court on Monday, Kenneth Warner, lawyer for 89-year-old Anthony Marshall, argued that jail would have "lethal consequences" for his client, who suffers from Parkinson's disease and dementia and requires around-the-clock care.
"It would be cruel and unusual punishment for Mr Marshall at this age and this condition to be sent to jail," said the attorney.
But despite expressing "sympathy" for the frail defendant – who was not in court – judge Kirke Bartley said he had no "latitude" to rule in favour of a motion for clemency. The matter would have to be decided at an appellate court, he said.
Judge Bartley adjourned until Thursday a decision over whether Marshall and co-defendant Francis Morrissey would go to prison or face a possible retrial.
Late last week, lawyers filed legal papers calling for their convictions to be quashed, on the strength of a new affidavit from a trial juror. Judi DeMarco claims she was strong-armed by other jurors into a guilty vote in the 2009 trial. Her claims have already been the basis of an unsuccessful plea, but lawyers for Marshall and Morrissey claim that no ruling has been made since she made a sworn affidavit.
Judge Bartley said on Monday he would deliver a ruling on Thursday over whether the new legal filing warranted a new hearing or possible retrial.
Prosecutors say there is nothing new in the affidavit and that DeMarco's allegations have already been addressed by the court.
The assistant district attorney Elizabeth Loewy, of the Elder Abuse Unit, noted that testimony of other jurors had contradicted the claims DeMarco was making.
Loewy also argued that old age should not be a barrier to someone going to prison. Before Monday's session, the assistant DA contacted state and city correctional facilities, who said that they could cater for Marshall and his needs.
But Warner said his client's condition had deteriorated severely since 2009, when he was convicted of grand larceny.
Marshall was found guilty of exploiting his mother's dementia to help himself to millions of dollars from her vast fortune. He also engineered changes to her will in his favour and took artwork off her walls after she was diagnosed with Alzheimer's disease.
Morrissey was convicted of forging Astor's signature on her will.
Astor, a grand dame of the New York social scene, had intended the bulk of her wealth to go to city charities and organisations. After she died in 2007, at the age of 105, questions arose over the changes in the will, leading to charges against her son.
In court on Monday, Loery said Marshall had made his mother's life miserable in her final years. Although she expressed a degree of sympathy in regards to the defendant's frailty and deteriorating mental state, the prosecutor noted that he had used his mother's dementia to help himself to a chunk of her fortune.
She attacked defence lawyers for a "perpetual motion" of delaying tactics. Loery also cast doubt over the extent of Marshall's decrepitude, showing the courts two newspaper reports showing a wheelchair-bound Marshall at a lavish party on a cruise ship on the Hudson. The picture was from three months ago, it was claimed.
Warner said his client had been on the boat for a short time and that he then had to leave. Moreover, he said the defendant's personal physician had warned that prison would likely cause Marshall's death. Medical examination would confirm his client required 24-hour attendance and assistance, Warner told the court.
In addition, saving his client from prison would not spare him from the "disgrace and humiliation" he has suffered as a result of the conviction, his lawyer said.
The parties are due to reconvene on Thursday at a Manhattan courtroom, at which Marshall and Morrissey are due to surrender. Reported by guardian.co.uk 15 hours ago.
The ailing son of the late New York socialite Brooke Astor will find out on Thursday if he is to serve out a prison sentence for looting his mother's fortune, after a judge declined an eleventh-hour appeal on the grounds of his health.
In court on Monday, Kenneth Warner, lawyer for 89-year-old Anthony Marshall, argued that jail would have "lethal consequences" for his client, who suffers from Parkinson's disease and dementia and requires around-the-clock care.
"It would be cruel and unusual punishment for Mr Marshall at this age and this condition to be sent to jail," said the attorney.
But despite expressing "sympathy" for the frail defendant – who was not in court – judge Kirke Bartley said he had no "latitude" to rule in favour of a motion for clemency. The matter would have to be decided at an appellate court, he said.
Judge Bartley adjourned until Thursday a decision over whether Marshall and co-defendant Francis Morrissey would go to prison or face a possible retrial.
Late last week, lawyers filed legal papers calling for their convictions to be quashed, on the strength of a new affidavit from a trial juror. Judi DeMarco claims she was strong-armed by other jurors into a guilty vote in the 2009 trial. Her claims have already been the basis of an unsuccessful plea, but lawyers for Marshall and Morrissey claim that no ruling has been made since she made a sworn affidavit.
Judge Bartley said on Monday he would deliver a ruling on Thursday over whether the new legal filing warranted a new hearing or possible retrial.
Prosecutors say there is nothing new in the affidavit and that DeMarco's allegations have already been addressed by the court.
The assistant district attorney Elizabeth Loewy, of the Elder Abuse Unit, noted that testimony of other jurors had contradicted the claims DeMarco was making.
Loewy also argued that old age should not be a barrier to someone going to prison. Before Monday's session, the assistant DA contacted state and city correctional facilities, who said that they could cater for Marshall and his needs.
But Warner said his client's condition had deteriorated severely since 2009, when he was convicted of grand larceny.
Marshall was found guilty of exploiting his mother's dementia to help himself to millions of dollars from her vast fortune. He also engineered changes to her will in his favour and took artwork off her walls after she was diagnosed with Alzheimer's disease.
Morrissey was convicted of forging Astor's signature on her will.
Astor, a grand dame of the New York social scene, had intended the bulk of her wealth to go to city charities and organisations. After she died in 2007, at the age of 105, questions arose over the changes in the will, leading to charges against her son.
In court on Monday, Loery said Marshall had made his mother's life miserable in her final years. Although she expressed a degree of sympathy in regards to the defendant's frailty and deteriorating mental state, the prosecutor noted that he had used his mother's dementia to help himself to a chunk of her fortune.
She attacked defence lawyers for a "perpetual motion" of delaying tactics. Loery also cast doubt over the extent of Marshall's decrepitude, showing the courts two newspaper reports showing a wheelchair-bound Marshall at a lavish party on a cruise ship on the Hudson. The picture was from three months ago, it was claimed.
Warner said his client had been on the boat for a short time and that he then had to leave. Moreover, he said the defendant's personal physician had warned that prison would likely cause Marshall's death. Medical examination would confirm his client required 24-hour attendance and assistance, Warner told the court.
In addition, saving his client from prison would not spare him from the "disgrace and humiliation" he has suffered as a result of the conviction, his lawyer said.
The parties are due to reconvene on Thursday at a Manhattan courtroom, at which Marshall and Morrissey are due to surrender. Reported by guardian.co.uk 15 hours ago.