NY judge to decide fate of Astor's son on Thursday

NEW YORK (AP) -- An 89-year-old heir to a famous New York City fortune is set to find out Thursday whether he'll succeed in an 11th-hour attempt to avoid, or at least postpone, prison after being convicted of plundering his mother's fortune.

Although Anthony Marshall has lost a series of appeals, a judge agreed Monday to spend a few days deciding whether to schedule a hearing on Marshall's latest request for a new trial in a case that peered into New York society's top drawer.

Marshall's mother, Brooke Astor, was a philanthropist seen as the queen of the city's social elite. He and another man were convicted in 2009 of sapping her fortune after she was diagnosed with Alzheimer's disease.

Marshall was excused from court Monday. His co-defendant, former estates lawyer Francis Morrissey Jr., 72, was in court and allowed leave until at least Thursday. Both have been free on bail since their convictions.

Defense lawyers say there's a new impetus for revisiting the verdict: a sworn statement they obtained last week from a juror who has said for several years that she was strong-armed into a conviction.

While her assertions were part of the men's unsuccessful appeals, "this is not a rehash," Morrissey lawyer Barry Bohrer said Monday.

But prosecutors characterized the request as a last-minute maneuver to prolong the men's freedom.

"The time has come" for them to go to prison, Manhattan Assistant District Attorney Elizabeth Loewy said.

Marshall's lawyers and doctor also argue that his health is failing dramatically and prison could kill him.

Marshall had a mini-stroke and fell in a courthouse restroom during his trial, but he is now considerably more frail, Dr. Kenneth Franklin said in a sworn statement filed Monday.

Suffering from Parkinson's disease and dependent on a wheelchair, Marshall can't get out of bed, go to the bathroom, bathe, shave or dress himself without help, he needs oxygen from a tank at night and he has trouble swallowing, the physician said.

Loewy, however, noted that Marshall was photographed attending a party at the Intrepid Sea, Air & Space Museum in February. He was there only briefly, defense lawyer Kenneth Warner said.

State Supreme Court Justice A. Kirke Bartley said he was sympathetic to Marshall's health problems, but the appeals courts had addressed and dismissed them as justification for nixing his prison term. Marshall's lawyers said they were exploring what avenues they might now have to appeal Bartley's decision not to reopen the issue.

Astor died in 2007 at 105, after giving away millions from the trove she inherited from her third husband, Vincent Astor, a descendant of one of the United States' first multimillionaires, John Jacob Astor. Her charitable largesse was recognized in 1998 with the Presidential Medal of Freedom, the nation's top civilian honor.

Prosecutors said Marshall, a decorated World War II veteran and former U.S. ambassador, gave himself hefty presents with her money and engineered changes to her will that favored him.

Marshall's lawyers said that Astor lucidly changed her will to benefit her only child and that he had legal authority for the gifts he gave himself.

He and Morrissey, who was convicted of forging Astor's signature on a change to her will, were sentenced in December 2009 to one to three years in prison.

Then juror Judi DeMarco told a defense investigator she felt threatened when another juror made hostile gestures and cursed at her during deliberations. DeMarco said she became demoralized when she asked to get off the jury but Bartley instead told the panel to keep deliberating civilly.

"I was tired and beaten and felt totally alone" and finally "acquiesced in guilty verdicts that I did not in good conscience believe were legitimate," DeMarco said in a June 8 statement.

The statement came after the state court's Appellate Division concluded the jury tensions "appeared to resolve themselves, and there is no reason to believe that the ultimate unanimous verdict, confirmed by polling (asking whether each juror agreed with the verdict), was the result of coercion."

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