How can someone be convicted of a crime with almost no proof of his guilt and abundant evidence of his innocence?
I’m faced by that question in trying to understand how my friend Frank Morrissey was found guilty of forgery in a jury trial, saw his conviction upheld by a five-member appeals court panel, and then was forced to serve more than a year in state prison, even though two of the prosecution’s own witnesses provided testimony suggesting that he was innocent. In some sense, his case is an object lesson in the problems of our criminal court system and of the press.
Morrissey’s case is in no way obscure. He was convicted of forging a signature on the will of one of the most famous socialites in America: Brooke Astor, heiress to the fortune of the great 19th century fur trader and real estate titan John Jacob Astor. His trial was covered by each of New York’s daily newspapers and countless magazines, including Vanity Fair. So, if there was something wrong with the prosecution’s case, shouldn’t that have been evident in press accounts of the trial? Shouldn’t the enormous scrutiny it received have exposed serious errors?
What happened has been largely forgotten. At this point, most people simply remember that there was a trial involving Brooke Astor’s will. The government’s case against Morrissey revolved around a single claim and a simple assertion: He had taken a newly drafted version of a will to a doddering Brooke Astor and asked her to sign it. Two prosecution witnesses testified that she had signed it. The government claimed that after she had put pen to paper Morrissey got another pen and wrote over her signature in order to make her scrawl look firmer.
It was said that the purpose of this was to conceal her failing mental state and her inability to properly sign the amendments to her will. But no one had seen Morrissey placing his pen on top of her initial signature. In other words, there was nothing more than conjecture that he had done what he was accused of, and Morrissey wasn’t even supposed to have been the lawyer sent to her apartment to ask her to sign the document. Rather, he was a last-minute replacement for another trusts and estates attorney who had been designated to drop off the proposed revisions to her will.
Why would Morrissey do what he was charged with doing? The government devoted its case to proving that he potentially stood to gain from involvement in the creation of a new series of charitable trusts. But even if this was true—and he had no assurance of this—it is not proof that he had rewritten her signature. In order to make that claim, prosecutors presented an expert witness who said the signature looked suspect. This was the basis of their case. Ironically, the expert witness’s name was Alex Forger. Forger’s testimony was no more than an opinion, and Morrissey’s lawyers had their own expert witnesses saying the opposite.
What was missing was anyone who had seen Morrissey doing what was claimed. It was akin to accusing someone of holding up a bank teller at gunpoint without presenting evidence that they had ever been in the bank.
As this point was made during the appeals process, the prosecution proceeded to change its argument. Ignoring accepted legal procedure, it presented a new claim, virtually abandoning the theory it had presented in the original trial. Rather than say that Morrissey had taken a pen and placed a new signature on top of the original signature provided by Astor, it instead argued that the signature on the new version of her will was on a different line in the will than it had originally been and that the signature was exclusively Morrissey’s own. Their new argument was that he must have pulled the pages of the document apart and then inserted an additional page to it with his new “Brooke Astor” signature. But the revised will was a bound document, and records showed that Morrissey had placed it in a sealed Federal Express envelope just one hour after Astor had signed it. Moreover, the watermarks on the fancy paper it had been printed on matched one to another. So, in order for Morrissey to have done what he was accused of during the appeals hearing, he would have had to get Astor’s signature on one copy of the document, print out a second copy, sign that one, and then take the second copy to a copy shop for binding, after which he would have had to deliver it to a Federal Express office for mailing within a single hour. More incredibly, he would have had to possess a ream of the right paper with him as he went to Astor’s apartment—even though he had not even planned to be there to obtain her signature that day.
Even beyond that, the changes to her will did not name Morrissey as an executor, someone who stood to profit from the amendments. That title was given to Marshall’s longtime trusts and estates lawyer, Terry Christensen, the man who was supposed to be present for the signing of the documents. Finally, the witness who testified that the will was forged was not an expert on signatures.
Clearly, much was seriously wrong with the prosecution’s arguments. Why then was Morrissey convicted and why was his conviction upheld on appeal?
Over the last few years, left-wing activists have managed to persuade legislators at both the national and local level to implement a series of criminal justice reforms. In New York, the Legal Aid Society authored a bill, since passed, which required prosecutors to meet stringent new requirements for turning over masses of documents to defense attorneys. Because it is often nearly impossible to get these papers to defense lawyers as quickly as the law demands, district attorneys are now routinely dropping solid cases against dangerous felons guilty of serious crimes. In other states and nationally, the government has implemented a series of changes to bail laws. These have been followed by a national crime wave. Homicide rates in the U.S. increased 44 percent from 2019 to 2020. If the purpose of the criminal justice system is to keep the public safe by convicting the guilty, the reforms have been a disaster. Yet there is little evidence that fewer people are being wrongly convicted. The Morrissey case offers clues about why.
I confess here that I am not entirely objective as the subject of this story is my friend. A longtime New York City trusts and estates attorney, Morrissey has been active for many years in the local arts scene. That was how I met him. Introduced at a cocktail party by a wealthy heiress, we soon realized that we shared a variety of interests. Foremost among these was a passion for the theater. That led me to become a playwright. It drew him towards his most notorious client, the late Anthony “Tony” Marshall. Brooke Astor’s son, Marshall was a well-known “angel” investor in Broadway shows.
In some ways Marshall was an admirable man. When war broke out in 1941, he promptly enlisted in the Marines, and he fought bravely at Iwo Jima, receiving a Purple Heart. Then he joined the diplomatic corps and served as U.S. Ambassador to Kenya. These were hardly the actions of a self-conceited ne’er-do-well. Yet his mother was married to one of the richest men in America, and at his death she had inherited a vast fortune from his stepfather.
Marshall’s relationship with his mother was tortured. By all accounts, she was a neglectful parent, and she treated him with scorn. But she had many influential friends. Foremost among these were the leading figures of New York’s elite, including Annette de la Renta, David Rockefeller, and Henry Kissinger. Astor worked with them regularly in support of their favorite charities. Of particular significance was the Metropolitan Museum. The proposed changes to Astor’s will would have made Marshall a paid executor in a new charitable trust. The main purpose of the revisions, however, was to redirect her fortune to charities that he preferred. This would have given much of the estate to causes of special interest to him, like care of veterans, instead of the charities preferred by her friends.
The immediate prompt for investigation into Marshall’s treatment of his mother and his handling of her affairs came from one of his own sons who said that she was not being properly cared for. Astor was 103 years old and, understandably, in failing health. At the trial, the prosecution offered considerable testimony that her mental state was questionable. In particular, Louis Auchincloss testified that he had run into her at a party, and she had not remembered who he was. Auchinlcoss said that he had warned Morrissey that she was losing her mind some time before he had gone to her apartment. Of course, while this might raise questions about the propriety of Morrissey’s decision to ask her to sign her name to a series of revisions to her will, in polite society there is nothing unusual about not acknowledging an acquaintance and in no way is it evidence that Morrissey forged her signature.
It seems that the jury was aware of this and of the general shabbiness of the prosecution’s case. For that reason, at least one of the jurors wanted to find him innocent. The juror, Judi DeMarco, had a problem though. Another of the jurors, Yvonne Fernandez, didn’t like Morrissey, and Fernandez wanted to convict him. That prompted Fernandez to threaten DeMarco, telling her that she had dated one of the heads of the Latin Kings criminal gang and that Morrissey would be dealt with accordingly if she didn’t vote for a conviction. DeMarco acted properly in response, alerting the judge to the attempts to intimidate her.
This is where things really went wrong. Astor’s influential friends had brought the case to the Manhattan District Attorney, Robert Morgenthau. It’s likely that Morrissey would never have been tried if he had not had so many powerful figures arrayed against him. The real obstacle in the case, however, was the judge, A. Kirke Bartley Jr. It is apparent that Bartley did not want the case to end in a mistrial. That would have reflected badly on him. So, without even interviewing the jurors to find out what had happened between them, he dismissed Fernandez’s threat as an idle boast and kept her on the jury panel. Recently I called his office to see if he would comment. He did not return my phone calls.
Yet there is good reason for thinking that Fernandez’s threat was not an idle boast. I learned that by pure chance. As Morrissey’s friend, I attended his appeals hearing. Present as well was radical lawyer Ron Kuby. A decade earlier I had interviewed Kuby for a profile, and I recognized him. So I approached him, and I asked him why he was there. He explained that he was friends with one of the jurors in the case. Since Kuby is the principal lawyer for the Latin Kings, the conclusion seemed unavoidable: Fernandez’s claim that she could have gangsters set upon DeMarco if she voted to acquit Morrissey was quite true.
Unlike the judge in the case, Kuby agreed to speak with me about this. He said that he had actually met Fernandez through his work as an on-air presenter at CourtTV, where she also was employed. In addition, Kuby said that he was unaware that she had dated anyone from the Latin Kings. It was just a coincidence.
But Kuby had more to say. He wondered why the case had been brought in the first place. “Marshall wasn’t receiving anything extra in the will with his mother’s death, and based on an actuarial chart he must have known that he was going to get most of what was due him very soon anyway.” Nor was it clear that Morrissey stood to gain anything.
I asked Kuby why I had seen him at the appeals hearing. “I went because I was curious to know how much time a rich white person received from the judges. But I couldn’t figure out what the point of the case was in the first place.”
In response to this comment, I mentioned Robert Morgenthau’s friendship with Annette de la Renta, Henry Kissinger, and David Rockefeller. Kuby gave out an audible sigh of disgust and agreement.
This gets us to a basic point. Radical activists like Kuby want you to believe that the criminal justice system is inherently flawed because the rich and powerful can too easily influence it. And certainly that was how the case had started. But the system has innumerable safeguards and procedures for protecting all involved, and because it is adversarial in nature it provides everyone with an advocate. In order for it to work properly though, the advocates have to be competent and all the parties—the jury members included—must honor the oaths they take.
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The system is imperfect not because of racism or capitalism but because people are imperfect. That brings us back to the judge’s behavior, which was wildly inappropriate. This point was not lost on newspaper reporters who covered the appeal. As they noted in their accounts, they were of the opinion that the judge’s actions might well lead to a reversal of the decision made by the trial court. The judge’s character may be indicated by the fact that he has since been exposed in the press for fixing his parking tickets by putting up a fake placard identifying himself as a police officer.
Morrissey was not helped by his lawyers either. Both were eminent and well-paid. At the trial court level, he had Thomas Puccio defending him. One of the most well-known defense lawyers in the country, Puccio was dying of leukemia. This was something he kept secret from his client, and convinced that the prosecution’s case was weak and physically weak as he was himself, he chose to present a defense which was little more than a critique of the prosecution. At the appeals court level, Morrissey selected his friend Bill Zabel to represent him. While Zabel was Morrissey’s pal, he is not a criminal lawyer, and he was not prepared. I do not think I am overstating in saying that I could have done a better job.
Morrissey was convicted of five different charges. Among these was a charge of conspiring with Marshall. The basis for all of these charges, however, was the dubious claim of forgery. This resulted from the improper behavior of at least one juror and of the trial court judge. Most cases of wrongful conviction involve human error. Research suggests that false testimony by eyewitnesses and false confessions are the most common causes. The Brooke Astor case shows that some mix of professional negligence and legal incompetence can produce the same result. One of the most notable points about the trial though is the role of the press. The many reporters present during the trial must have realized that the case against Morrissey was lacking in evidence. But presenting that story wasn’t providing the sort of easy narrative that sells papers. This brings us to a greater problem: few people in the press are ever asked to report what is happening. They—we—are paid to present readers with tales they wish to hear and already believe.