How can someone get convicted for a crime when there is almost no evidence that he is guilty and plenty of evidence to prove his innocence?
I am confronted with this question when trying to figure out how Frank Morrissey, my friend, was convicted of forgery at a jury trial. His conviction was upheld by five members of an appeals court panel and he was then forced to spend more than one year in prison. Two of his own witnesses testified that Morrissey wasn’t guilty. His case serves as an example of how the criminal justice system works and the difficulties of the media.
Morrissey is not in a difficult case. 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. Each of New York’s daily newspapers covered his trial, as well as countless magazines including Vanity Fair . If there were any problems with the prosecution’s case should that not have been made clear in the press accounts? Shouldn’t it have been exposed by the intense scrutiny?
The events of that day are largely forgotten. Most people only remember the trial that involved Brooke Astor’s will. Morrissey’s defense revolved around one claim. It was a simple assertion that he had given a new version of his will to Brooke Astor, and requested her to sign it. She had actually signed the document, according to two prosecution witnesses. Morrissey claimed she signed the document after she put pen to paper. Two witnesses at her trial testified that Morrissey used a second pen to sign it.
It was believed that this was done to hide her mental decline and inability to sign amendments to her will. No one has seen Morrissey place his pen over her initial signature. It was conjecture at best that Morrissey had committed the crime, but he wasn’t supposed to be the one who asked her to sign it. He was actually a replacement for another trusts & estates lawyer who had been assigned to make the revisions to her will.
Why would Morrissey have done what was asked of him? It was argued that Morrissey could have benefited from the establishment of new charitable trusts. Even if this were true, and he did not have any assurance that it was so–it does not prove that he rewrote her signature. Prosecutors presented an expert witness to support their claim. He said that the signature appeared suspect. That was their basis. Ironically, Alex Forger was the expert witness. Forger’s testimony was merely an opinion. Morrissey’s attorneys had other expert witnesses who said the exact opposite.
What was missing was any evidence that Morrissey had done what was claimed. This was similar to accusing someone with holding up a bank clerk at gunpoint, without providing evidence they were ever in that bank.
This point was raised during appeals. The prosecution then changed its argument. It presented a new claim that basically abandoned the initial theory. Instead of claiming that Morrissey had signed a will with a pen, but instead of stating that he had done so by adding a signature to the Astor signature, the court argued that Morrissey was the sole author of that signature. They argued that Morrissey must have taken the page from the original document and added a new page with the “Brooke Astor’ signature. The revised will was bound, but Morrissey placed it in an envelope Federal Express sealed within one hour of Astor signing it. The watermarks printed on fancy paper were identical. To be able to do what Morrissey was charged with during the appeals hearing, Morrissey would need to obtain Astor’s signature onto one copy of the document and print another copy. After binding the first copy at a copy shop, Morrissey would then have to mail it to Federal Express within an hour. Even more amazing, Morrissey would have to bring a roll of paper along with him to Astor’s apartment.
Despite this, Morrissey was not named as executor in her will. This is because she would have been able to benefit from the amended will. This title was granted to Terry Christensen (Marshall’s trusts and estates attorney), who was to sign the documents. The witness that testified the will had been forged did not have any expertise in signatures.
It was clear that the arguments of the prosecution were seriously flawed. How was Morrissey found guilty and was the conviction upheld in appeal?
Left-wing activists managed to convince legislators on both the local and national levels to adopt a number of reforms in criminal justice over the past few years. The Legal Aid Society in New York authored legislation that required prosecutors to comply with new regulations for turning over large amounts of documents to defense lawyers. 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. The government implemented several changes to bail laws in other states as well. They were followed by a nationwide crime wave. Homicide rates in the U.S. increased 44 percent from 2019 to 2020. The reforms to the criminal justice system have proved disastrous if the goal is to protect the public by convicting those who are guilty. There is not much evidence to suggest that more people are wrongfully convicted. This is what the Morrissey case reveals.
I have to admit that this is a story about me and my friend. Morrissey, a long-standing New York City estates and trusts lawyer, has been involved for years in the local art scene. This was the way I met Morrissey. We were introduced at a cocktail party hosted by a wealthy lady. Soon we realized we had many common interests. The passion I have for theater was the most important. This passion led me to becoming a playwright. This led him to his most famous client, Anthony “Tony”, Marshall. Marshall, Brooke Astor’s son was an eminent “angel investor” in Broadway shows.
Marshall was in some ways 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. He then joined the diplomatic corps, and was appointed U.S. Ambassador to Kenya. He was then appointed Ambassador to Kenya by the U.S. They were not the actions of self-centered ne’er do-wells. His mother, however, was married to one the most wealthy men in America and had an enormous fortune inherited from her stepfather at his passing.
Marshall had a difficult relationship with his mom. All accounts indicate that she was a neglectful mother and treated her son with contempt. She had many powerful friends. Among them were Annette de la Renta and David Rockefeller. Henry Kissinger was also among the most influential. Astor was a regular collaborator with them to support their favourite charities. The Metropolitan Museum was a particularly important charity. Marshall would be a paid executor under the new trust created by Astor’s proposed will changes. However, the main goal of these revisions was to redirect Marshall’s fortune to charitable causes he preferred. This would have meant that a large portion of her estate was given to charities that he preferred, such as veterans care, rather than the charity she prefers.
One of Marshall’s sons informed him that his mother was not receiving proper care. This prompted an investigation. Astor was 103 years old and, understandably, in failing health. The prosecution provided a lot of evidence that Astor’s mental health was questionable during the trial. Louis Auchincloss, who testified at the trial, said that he met her at a party and she didn’t remember his name. Auchincloss claimed that he warned Morrissey she was having a hard time remembering who he was before going to her apartment. Although this raises questions regarding Morrissey’s propriety in asking her to sign her name for a series to her will revisions, it is not unusual in polite society to acknowledge an acquaintance. It is also in no way evidence that Morrissey has forged her signature.
It seems the jury knew this, and the overall shabbiness in the prosecution’s case. at most one of the jurors wanted him to be found innocent. Judi DeMarco was the juror who had problems. Fernandez was determined to convict Morrissey. Fernandez also didn’t like another of the jurors. Fernandez threatened DeMarco by telling her she had dated one the Latin Kings criminal gang heads and that Morrissey would face the same fate if she did not vote for conviction. DeMarco responded appropriately, alerting her judge about the intimidation attempts.
This is the place where everything went horribly wrong. Robert Morgenthau, the Manhattan District Attorney had been referred to Astor by influential friends. If he hadn’t had such powerful people against him, it is likely Morrissey wouldn’t have been tried. A. Kirke Bartley Jr. was the real hurdle in this case. Bartley clearly did not wish for the case to be dismissed. This would have been a negative reflection on Bartley. 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. Recenty, I reached out to his office in an effort to get some comment. He did not return my phone calls.
But there are good reasons to believe that Fernandez was serious in his threat. It was pure luck that I discovered this. Morrissey was my friend and I went to his hearing. Ron Kuby, a radical lawyer, was also present. Kuby was a radical lawyer I interviewed ten years ago for a profile. I remembered him. When I saw him I was intrigued and asked why he was here. He said that he had been friends with one juror in the case. Kuby being the main lawyer of the Latin Kings made it obvious that the conclusion was inevitable: Fernandez claimed DeMarco could have been gangsters set upon her if she voted for Morrissey to be acquitted.
Kuby, who was not the judge in this case, agreed to talk with me. Kuby claimed that Fernandez had met him through CourtTV’s on-air host. Kuby also stated that Fernandez was not aware that he had ever dated someone from the Latin Kings. This was all a coincidence.
But Kuby has more. Kuby had more to say. He said that Morrissey was not entitled to anything.
I asked Kuby about why he had been at the appeals hearing. “I was interested to find out how long a judge gave rich white people. However, I was unable to understand the purpose of the case .”
In response to the comment, I mentioned Robert Morgenthau’s friendship with Annette de la Renta and Henry Kissinger. Kuby let out a loud sigh, indicating his disgust and agreement.
This brings us back to the main point. Kuby and other radical activists want you to think that criminal justice is flawed simply because it can be influenced by the powerful and wealthy. This was the way that this case began. The system provides all parties with an advocate, as it has many safeguards and procedures. To make it work, advocates must be skilled and the jurors have to honor their oaths.
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The system’s inadequacies are not due to racism or capitalism, but because humans make mistakes. This brings us to Judge’s behavior which was completely inappropriate. Newspaper reporters covering the appeal didn’t miss this point. They noted that they believed the actions of the judge might lead to an inverse of the court’s decision. 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 wasn’t helped either by his attorneys. They were both highly-paid and eminent. Thomas Puccio was his defense attorney at the trial court. Puccio, one of the best-known and most respected defense attorneys in the country was suffering from leukemia. He kept this secret from his client and was convinced the prosecution was weak. Morrissey chose Bill Zabel, his friend at the appeals court. Zabel, Morrissey’s friend, isn’t a criminal attorney and was therefore not adequately prepared. It is not a exaggeration to say that I couldn’t have done better.
Morrissey pled guilty to five charges. One of these charges was conspiring to murder Marshall. All of the charges were based on the suspect claim of forgery. The improper conduct of at least one jury member and the judge of the trial court resulted in all of these charges. Human error is the most common cause of wrongful conviction. False testimony of eyewitnesses or false confessions is the leading cause. Brooke Astor’s case illustrates how professional negligence combined with legal incompetence could produce similar results. The role of the media was one of the highlights of the trial. Many reporters who were present at the trial realized the lack of evidence against Morrissey. However, the story was not easy to sell papers. We now have a bigger problem. Few people are asked by the media to tell what’s happening. They–we–are paid to present readers with tales they wish to hear and already believe.