Mrs. Astor Regrets

by Meryl Gordon

  Carter's time in the witness room overlapped with Annette de la Renta's, and the duo ended up lunching together, perched on boxes, on Liz Loewy's stale Easter chocolates in the prosecutor's cramped office. Extremely nervous about testifying, Annette developed acute laryngitis the weekend before—"I'm the only person in New York who wants to have swine flu," she joked—but recovered by the time she took the witness stand.

  During her two days of testimony, Annette was scarcely able to utter three consecutive sentences; Tony's lawyers objected at every turn. Justice A. Kirke Bartley, Jr., barred Annette from discussing her role as Brooke Astor's guardian, siding with Tony's lawyers who argued that the information was prejudicial. So Annette was mostly limited to describing her friend's increasing disorientation.

  Brooke Astor's cherished photo album of her one hundredth birthday party was given to Annette to identify, then passed to the jurors for inspection. Annette looked as though she wanted to snatch it back. "I thought it was such an invasion," Annette told me later. "This was hers, it tied her to Mr. Rockefeller and his kindness in giving her the party, it kept her connected. It was like pawing through her underwear."

  The prosecutors had decided to use that party as a "marker" of Brooke Astor's mental health, as Liz Loewy explained to me. The magical evening at Kykuit was re-created in a new light, with guests asked to describe Mrs. Astor's demeanor as if the Playhouse at the Rockefeller estate were a crime scene. As Henry Kissinger recalled, "I didn't think she recognized me."

  David Rockefeller had commissioned a thirty-five-minute video of the party. Who could have imagined that this sentimental memento would be played for the jurors on a large screen in a criminal trial? It seemed so incongruous to see the protagonists, dressed in black tie, as the soundtrack of the Lester Lanin band played "The Lady Is a Tramp." Here was the family Astor and their intimates in happier times: Brooke Astor arriving on the arm of Viscount Astor; Charlene and Tony merrily greeting their soon-to-be nemesis David Rockefeller; Philip and Nan whirling on the dance floor; the trust-and-estate lawyer Terry Christensen applauding as the centenarian honoree in her blue Oscar de la Renta gown tremulously stepped up to the microphone.

  Like academic film critics, the prosecutors and defense lawyers argued over this video frame by frame, halting and replaying scenes. One of the prosecutors, Joel Seidemann, a courtroom showman belatedly added to the prosecution team of Loewy and Peirce Moser, pointed out that Mrs. Astor did not mention any of the guests by name and referred to Rockefeller as "that man." Defense lawyers Fred Hafetz and Kenneth Warner insisted that Mrs. Astor seemed lucid. Asked about the party on the witness stand, Barbara Walters recalled that Mrs. Astor appeared to be "a little vague." But the anchorwoman's most damaging comments came when she described her final visit, some eighteen months after the gala, to Brooke Astor at 778 Park Avenue on December 29, 2003. "She had no idea who I was," she sadly recalled. This was a crucial point of testimony. Mrs. Astor had signed the second codicil on January 12, 2004. If she could not even recognize her old friend, one of the most famous women in America, it stood to reason that the 101-year-old was incapable of understanding intricate legal provisions presented to her by Francis Morrissey and his new team of trust-and-estate lawyers.

  For Tony and Charlene, their new, abnormal life in courtroom 1536 four days a week became normal as they developed daily rituals. Charlene was often joined by such companions as her daughter Inness, the philanthropist Sam Peabody, and the painter Richard Osterweil. At lunchtime, the couple would retreat to a wooden bench in the hallway to eat sandwiches that Charlene had brought from home. As the trial moved from spring into summer, the usually well-groomed couple began to look ragged: Charlene's wrinkled khaki skirt sported a rip at a seam, and Tony's Brooks Brothers suits were as rumpled as if he had slept in them.

  The Marshalls had stopped going out to dinner or the theater at night, keeping to their Lexington Avenue apartment under self-imposed house arrest. "I just go home and go to sleep," Tony told me one day in court, saying he was too exhausted to read a novel or watch a movie. Charlene explained that she often stayed up late: "These lawyers keep me working to ten or eleven at night, e-mailing with questions." On Sundays, Charlene made her regular pilgrimage to St. James' Church. As she put it, "All I do is cry and pray."

  If New York State had permitted a commercial sponsor for the trial, Kleenex would have been an apt choice. Charlene broke down sobbing so frequently that after a while the jaded press corps stopped writing about it. On May 7, her seventeenth wedding anniversary with Tony, the New York Times ran an unflattering front-page story by John Eligon about Charlene: "Not On Trial but Being Judged as a Villain in the Astor Drama." Charlene arrived at court crying uncontrollably. To her friends, she tried to spin her reaction, telling Richard Osterweil: "They can say whatever the hell they want about me as long as it deflects attention from Tony. I'll take it. I don't care."

  Most of the time, Tony maintained a stiff-upper-lip composure. But even he lost control on the day when the inevitable Oedipal collision finally occurred—his two sons testifying as prosecution witnesses against him. The twins arrived at court together, presenting a united front. Alec, who had not seen his father since Brooke Astor's funeral, took the witness stand first. Wearing a blue blazer and gray slacks, he gave a slightly nervous smile as he glanced in the direction of his father. Asked about his grandmother's fading mental abilities, Alec said that after 2000, "she was having trouble remembering names." He said that around 2001 or 2002, his grandmother asked if he would like to inherit Holly Hill. "I said, 'oh no,'" Alec recalled. "At that point, I knew it was too late to add any changes to her will." This was, of course, a thinly veiled criticism of his father.

  Tony was weeping as he left the courtroom for the lunch break, and Charlene, crying too, led him over to a bench. Alec came out of the nearby men's room only to find himself just a few feet from the couple. "I walked out and there was my father. Charlene was looking at me," he recalled. "I just kept walking."

  That afternoon, Philip, in a crisp white shirt, blue tie, and dark suit, looked braced for battle as he took his seat in the witness chair. He sat erect, exuding coiled tension. Loewy began by asking him to talk about family history, and he described his aloof relationship with his father and Charlene ("They never visited us at our home"). Once the testimony turned to Brooke Astor's final years, Philip's raw emotions began spilling out. He choked up as he described Brooke's distress during the period when she was, unbeknownst to him, meeting with Tony's lawyers ("She looked terrified"). With anger in his voice, he spoke with disgust about how his father had let her living situation deteriorate ("It was very, very dirty"). Philip was allowed to mention the guardianship lawsuit, but the judge refused to let him discuss such details as the dog feces in the dining room. The next day, under cross-examination by Kenneth Warner, Philip's enmity overflowed to the point that the two of them erupted into a shouting match. Justice Bartley interrupted, saying, "The court reporter's machine is beginning to smoke."

  As the process wore on, Tony's health deteriorated. He suffered a minor, albeit worrisome, stroke in early June, causing him to miss two days of the trial. Two weeks later, he was on his treadmill, at the advice of his cardiologist, when he lost his balance and fell, hitting his head. He came to court the next morning but left at lunchtime to get an MRI. Charlene gave an impromptu press conference after the couple returned to court that afternoon, saying that Tony had been diagnosed with a concussion and was confused. "He couldn't find his way around the doctor's office," she said, adding, "We're there so often that I'm thinking of leaving a nightgown."

  In early July, the octogenarian became dizzy in the men's room and fell again, this time hitting his head on a stall. Medics arrived and wheeled Tony out on a gurney to the elevator as photographers snapped away. Taken to a hospital, he was examined and released. The press corps had been debating about creating a ghoul pool, betting on whether Tony—at eighty-five, reported to be the oldest defenda
nt ever tried in Manhattan Supreme Court—would survive the trial. The idea was dropped as Tony's mortality became all too real.

  Much of the sympathy that Tony's fragility engendered was dampened by the parade of prosecution witnesses describing his mistreatment of his mother. Chris Ely, the butler, described how Mrs. Astor, suffering from Alzheimer's disease, began to refer to Tony as "my husband." According to Ely, Mrs. Astor fearfully confided, "My husband wants to put me in an old ladies' home." Her former maid Angela Moore recounted that several hours after Mrs. Astor signed the second codicil, she began hallucinating that "men in suits" were hiding in her bedroom. Moore told her, "The only man in the house is Boysie your dachshund."

  From her mid-nineties on, Brooke Astor worked valiantly to maintain appearances, bravely doing everything she could to continue as a bright spot in any room she chose to grace. But her mask of refined living was stripped away in the courtroom as her doctors testified about her lengthy mental decline, producing detailed medical records. Her bowtied physician Dr. Rees Pritchett, an eighty-five-year-old who still practices medicine, said that his patient first began to complain that her memory was "no good" in 1995, and in 2003 she repeatedly told him, "I'm gaga." The neurologist Dr. Howard Fillit bluntly explained that in 2000, Mrs. Astor had performed poorly on simple tests such as drawing a clock and repeating a string of words.

  The heartbreaking medical testimony was leavened by a series of dishy anecdotes about Astor family dysfunction. The prosecution elicited nasty stories from witnesses conveying Mrs. Astor's contempt for both Charlene and Tony. Dwight Johnson, a former professor at the Pratt Institute, recalled Mrs. Astor telling him, "My son is nothing like me. All he wants is money, money, money, and I don't know what he's going to do with this money." David Rockefeller's granddaughter Miranda Kaiser said that when she asked Mrs. Astor why she had only one child, the grande dame said of Tony, "He was so unfortunate that I decided not to have any more." Francis Morrissey sought me out at the next break, speaking with dismay: "Did you see Tony's face?"

  The most memorable barbs, however, were the comments that Mrs. Astor and Charlene reportedly made about each other, according to witnesses. Dr. Kevin O'Flaherty, an audiologist, recalled Mrs. Astor discussing her Christmas plans: "She'd rather have Boysie and Girlsie, her dogs there, than her son and that b-i-t-c-h." The judge refused to let Brooke's former social secretary Naomi Packard-Koot tell the jury about overhearing Charlene scream, "What the fuck does that cunt want now?" Another former social secretary, Birgit Darby, was also barred from repeating her conversation with Charlene about Mrs. Astor. "She's killing him!" Charlene had purportedly told Darby. "If he dies before she dies, I get nothing. She's going to give him a heart attack."

  Of all the witnesses, the man in the most uncomfortable position was the former Sullivan & Cromwell partner Terry Christensen, who spent seven grueling days on the stand. The prosecutors painted the longtime attorney for Mrs. Astor as a man who had ignored her deteriorating mental state and abandoned his responsibilities to her so he could cater to her son, also a client. Loewy charged Christensen with "enabling" Tony and "giving in to his demands." The defense praised Christensen —who had been fired by Tony and replaced with Morrissey and G. Warren Whitaker—as a pillar of legal rectitude. Fred Hafetz said of the prosecution's attack on Christensen: "They are accusing this honorable, valor-able, reputable lawyer because he gets in their way."

  Christensen's testimony was pivotal to both sides. He had attested that Brooke Astor was competent when she signed the December 18 "First and Final" codicil, which provided a $30 million endowment for the Anthony Marshall Fund. Asked by Loewy why he had used the unusual "First and Final" wording, Christensen waved her off with a wry smile, replying, "A lot of people have asked me that question."

  Christensen was in the near-impossible position of testifying that Mrs. Astor was capable of assenting to his legal work but did not have the mental wherewithal a month later to agree to two codicils prepared by Morrissey and Whitaker. Hunched over on the witness stand, glowering, Christensen insisted that his role was to "mediate" between mother and son. He said that Tony had launched an unrelenting campaign for more money. "Did you think he was twisting your arm?" asked Loewy. "Mine and Mrs. Astor's," Christensen replied.

  He lost his temper after Loewy pointed out that Christensen's billing records showed that he met with Tony Marshall thirty-five times in 2003, but his original client, Mrs. Astor, only eight times. "I gave 15 years of devoted and undivided attention to Mrs. Astor and I was fired," Christensen shouted. "I resent the suggestion that I was doing anything other than what was requested."

  During Christensen's testimony, a minor detail buried in a tax-planning document—which was totally ignored by the press—cast the entire Brooke Astor saga, from the time of the guardianship lawsuit, in a new light. Philip and Alec Marshall had both repeatedly stated, and sincerely believed, that they had no financial stake in the fight over Brooke Astor's fortune. Dating back to 1993, their grandmother had left them one million dollars each, and that amount was not in dispute. Their parents' 1962 settlement agreement, which their mother, Elizabeth Wheaton-Smith, had tracked down during the guardianship fight in 2006, merely suggested but did not require Tony to leave the twins money when he died. Given Tony's fury at his sons, it was reasonable to assume that they had been disinherited.

  Then, on the large video screen in the courtroom, a November 15, 1990, tax-planning document prepared by Christensen for Mrs. Astor was shown to the jury. The paperwork stated that Tony's "first wife is entitled to a share of his estate if she survives him." None of the lawyers inquired about the mention of "the first wife." But I was startled by that clause and e-mailed Philip from the courtroom to ask whether he was aware of his mother's potential windfall. He wrote back moments later to say that no such clause existed in the settlement agreement that he had seen.

  The next day, Elizabeth Wheaton-Smith, at Philip's urging, went down to the dank basement of her Vermont home and retrieved from a filing cabinet her actual 1962 Mexican divorce decree. "I last looked at this forty or fifty years ago," she said. The settlement agreement that Philip had seen was merely a draft, prepared by his mother's first lawyer. She had subsequently hired another lawyer, who negotiated much better terms. As Wheaton-Smith blurted out, "It says in the divorce agreement he has to leave his kids one-third of his estate. I almost fainted. I'd totally forgotten that."

  Tony had been well aware of this requirement for forty-seven years (Warren Whitaker later mentioned it as a little-noticed aside during the trial), but the twins insist that it was not spelled out to them. "You never know the twists and turns as this situation unfolds," Alec marveled. "Who knows what will happen?" Tony had transferred valuable assets to Charlene in recent years, such as the Lexington Avenue apartment and Cove End, but most of his inheritance from Brooke Astor is tied up in Westchester Surrogate's Court. He cannot give Charlene any of Brooke Astor's tens of millions until the case is resolved. Should Tony die before the Surrogate's Court process is completed, his legacy from his mother would go directly to his own estate. Under that scenario, his sons would be entitled to one-third of that inheritance—significantly reducing Charlene's share.

  Philip's lawsuit over the care of his grandmother inadvertantly exposed his father's alleged crimes. But if Tony's claims on Brooke Astor's estate are ultimately upheld, Philip and Alec stand to inherit more than $10 million each. As Philip bluntly put it, "This is so twisted."

  For Francis Morrissey, the trial resembled a recurring nightmare in which he played only a bit part. The judge denied his request for a separate trial, so Morrissey spent weeks in the courtroom listening to testimony that was irrelevant to his legal fate. He passed the time by making himself the most genial defendant imaginable. Not only did he introduce himself to the press corps and wander over to schmooze during breaks, he even tried to ingratiate himself with the prosecutors, complimenting Liz Loewy on her "hilarious" sense of humor and Joel Seidema
nn on—yes—his astute objections.

  But finally the harsh spotlight turned to Morrissey's behavior in Brooke Astor's household. Mrs. Astor's former maid Lia Opris, a sixty-three-year-old Romanian, had witnessed Mrs. Astor sign both the first and the third codicils; Morrissey was charged with forging Brooke Astor's signature on the third codicil. Before the hushed courtroom, Opris described being called into Mrs. Astor's living room, where Morrissey waited, and watching Mrs. Astor sign her name, Brooke Russell Astor, with a ballpoint pen. The maid said she noticed how frail the words appeared. "They looked kind of pale, as if the pen was running out of ink," Opris said. "I thought to myself, in time, the letters might fade."

  Then Loewy, in a moment worthy of Perry Mason, brandished the third codicil, which had been submitted as part of Mrs. Astor's will, and asked, "Is this the piece of paper you saw that day?" "No," Opris replied. "I'm positive." In this codicil, Brooke Astor's signature was written in bold handwriting with a felt-tip pen. After Opris stepped down, Morrissey muttered, "She's confused." It was the first time in the lengthy trial that the lawyer, now out on $100,000 bail, seemed to be in danger of joining the daily procession of handcuffed criminals herded to the white prison vans waiting outside the courthouse.

  For the servants who had cared for and anguished over Brooke Astor in her final years, it was cathartic to have their day in court. Marciano Amaral, the chauffeur, wept openly, talking of his love for Mrs. Astor. The nurse's aide Pearline Noble held her ground during four days of withering questions from Fred Hafetz, who repeatedly called her a liar. "I was on trial for my character," Noble said later, sounding outraged. The nurse's aide wished that Charlene were on trial, not Tony. "For justice, I wish the penalty would go to her. She's the one who pushed and pushed." Chris Ely, who had helped set everything in motion, had expected to endure a bruising cross-examination, but it lasted scarcely an hour. "That's all?" he said afterward in the elevator, sounding disappointed. Still presiding over Holly Hill, Ely remained in mourning for the elderly woman who had been the center of his life for a decade. He took pink roses to Mrs. Astor's grave at Sleepy Hollow Cemetery. Sometimes he would go into her bedroom, where she had died, and just sit for a spell. Holly Hill was for sale, and soon it would be time for him to leave, to restart his own life.