Cuti said that Bartley should have at least made an inquiry into the circumstances surrounding the note.
Justices Angela Mazzarelli, Richard Andrias, Leland DeGrasse, Rosalyn Richter and Darcel Clark heard yesterday's arguments.
DeGrasse at one point asked Cuti whether, regardless of the codicil, Marshall didn't owe his mother a fiduciary duty as her attorney-in-fact to act in her interest.
Cuti said that Astor had simply wanted to give the money to her son.
"She's the one who knows what's in her best interest," he said. The codicil she signed was "consistent with a lifelong pattern of generosity to her only child."
Zabel then got up to defend Morrissey, saying that his client was a victim of "pervasive, and I must say outrageous, prosecutorial misconduct," making extremely inflammatory, prejudicial statements intended to villain-ize Morrissey throughout the trial. Morrissey was convicted of forging Astor's signature on a later codicil.
Zabel said the evidence that the signature was forged at all was weak, and that in any case, there was no direct evidence that Morrissey had forged it except that he had possession of it for one day.
"They didn't convict Mr. Morrissey because of forgery," he said of the jury. "They convicted him because of the whole elaborate circus-like proceeding."
Zabel was referring to the nearly six-month trial featuring a long list of witnesses, including Henry Kissinger and Barbara Walters, testifying about Astor's apparent dementia.
Zabel's partner Gary Stein also argued for Morrissey, echoing his contention that the trial was tainted by "just about every form of prosecutorial misconduct."