Part II of our continuing post-mortem analysis of the US Supreme Court’s anti-climactic 9-0 ruling takes a look at the other grounds for reversal argued by Pierce Marshall in his brief to the 9th Circuit. (Sorry, only We$tlaw version available at present). Given the US Supreme Court’s remand of the case “for further proceedings consistent with this opinion,” rest assured that Anna’s and Pierce’s respective legal teams are dusting off their arguments to the 9th Circuit from three years ago. There, in addition to Pierce’s now discredited challenge based on the so-called “probate exception” to federal court jurisdiction, Pierce raised the following issues on appeal:

  • Whether the Probate Court’s prior final judgment holding, among other things, that J. Howard did not intend to give Vickie any gift, precluded the District Court’s judgment on grounds of claim preclusion, issue preclusion, and the Rooker-Feldman doctrine.
  • Whether Texas law recognizes Vickie’s alleged cause of action of “tortious interference” with an “expectancy of an inter vivos gift” and, if so, what are the elements and parameters of her novel cause of action and has Vickie met those elements.
  • Whether the District Court denied Pierce due process of law by refusing to permit him to call percipient witnesses, by substituting its judgment for that of the Texas judge and jury through collateral review of the Texas probate proceedings, by finding J. Howard’s principal estate planning instrument to be invalid, in part, on the hearsay statements of witnesses who did not testify and were not subjected to cross-examination, and by improperly handing over to Vickie all of Pierce’s documents, including privileged documents.
  • Whether the District Court erred in basing its judgment (including compensatory and punitive damages) on speculative inferences and conjecture, nonexistent or insufficient evidence, and presumed facts.

More on Pierce’s answers to these questions later. For this post, however, I want to focus on Pierce’s 71 page opening statement of facts to the 9th Circuit, which refers extensively to the relationship between Anna and J. Howard Marshall. As you’ll see, it’s far from what one would call a true “courtship” (as Justice Ginsburg did in her opinion). Instead, I am reminded of Howard Bashman’s memorable interview of Judge Easterbrook, who remarked that one reason he enjoys being a federal appeals judge is that he’s often “served up [with] facts that were proposed as soap opera scripts and rejected as too implausible.”
Here are direct quotes of some of Pierce’s saucier allegations, which — given the characters and stakes involved — surely rank this case as a leader among ones with a “too implausible,” but probably true, “soap opera script”:

  • Soon after J. Howard met Vickie in 1991, he began giving her gifts. After Vickie’s own car was repossessed, J. Howard purchased a new Toyota Celica for her use. He began giving her cash to pay her bills. He also began buying expensive jewelry for her use. Over time, J. Howard purchased jewelry for Vickie’s use costing in excess of $4 million. On September 16, 1992, J. Howard purchased a ranch in Tomball, Texas for Vickie’s use…. J. Howard also purchased a home for Vickie’s use in Houston…. Because Vickie spent a great deal of time in Los Angeles, J. Howard leased a home for her there. Later, he purchased a different home for her use there (the “Brentwood House”). In 1992 he purchased a new Mercedes for her use…. In addition to these gifts, J. Howard promoted Vickie’s career as a Playboy Playmate and international model. He bought her expensive clothing and gave her cash.
  • Prior to their marriage, J. Howard and Vickie were often apart. Although she would call him frequently for money, she did not often visit him. [FN14: Vickie referred to J. Howard as “Paw Paw.” In public, she told others that he was her grandfather.] At times, J. Howard would fly to Los Angeles or New York to visit her. During a trip to Los Angeles to visit Vickie prior to the marriage, Vickie claimed to have injured her leg and, during his visit, spent much of the time in bed wearing a cast. While J. Howard was taking a nap, however, his nurse, Betty Harding, came across Vickie in another room with the cast off and her arms and legs encircled in embrace around her housekeeper, giggling and rubbing noses. Later on during the visit, J. Howard went shopping with Harding to purchase jewelry for Vickie. When they returned with the jewelry, Vickie demanded to see the receipt and complained that J. Howard had not spent enough money on the purchase. J. Howard returned to the store to purchase more expensive jewelry.
  • During a trip to New York, J. Howard waited in his hotel for several days only to have Vickie visit with him for thirty minutes. Just before he was scheduled to leave, Vickie asked that he meet her at an exclusive jewelry store, Harry Winston’s. When J. Howard arrived at the store and met with Vickie, he was not interested in shopping. Vickie gave him a valium, leaving him incoherent and drooling in his wheelchair. She then had him buy her a 16-carat diamond engagement ring. On the return trip to Houston, J. Howard had heart palpitations, and Harding was concerned that, as a result of the valium, J. Howard might have died.
  • During the summer of 1994, members of J. Howard’s staff learned that Vickie’s “bodyguard,” Pierre DeJean, had a record of multiple felony convictions. Just prior to her marriage to J. Howard, Vickie “lost” much of the jewelry that J. Howard had given to her, including her engagement ring. She filed a police report in Los Angeles, claiming the property had been stolen. Contradicting her claim, she also asserted that she had given the jewelry to DeJean. Further contradicting her claim, she asserted that she had left the jewelry in a bag in a cab. The jewelry has never been recovered. [FN15: The police did not believe Vickie’s story, stating that “the report of lost jewelry is unfounded.”]
  • On June 27, 1994, J. Howard married Vickie at a ceremony in Houston. The wedding was attended by J. Howard’s secretary, Scurlock, and one of his nurses, Charlotte Fade. Vickie’s aunt and uncle also attended. Arnold Wyche, J. Howard’s driver, brought J. Howard to the ceremony but did not attend. Pierce was not informed, and was unaware of the wedding, until July 11, 1994 when Dan Hedges told him that it had occurred. The afternoon of the wedding, Vickie informed J. Howard that she had to leave that day for Greece for a photo session. Instead of travelling to Greece, however, Vickie flew back to Los Angeles.
  • In August of 1994, J. Howard flew to Los Angeles with his driver, Wyche, to visit Vickie for several days. During the visit, Vickie stayed in her room in her bed. When J. Howard suggested that he keep her company, she refused to allow him to lie next to her, stating that he would urinate in the bed. She remained in bed until J. Howard left. When he came to say goodbye, she asked him for money. He gave her his wallet and she took all of his cash, together with a blank check that she had him sign.
  • On another occasion, J. Howard asked Nurse Harding to take him to visit Vickie at the Tomball Ranch. At the ranch, Vickie asked Harding to leave J. Howard with her. Harding left, and drove to Scurlock’s nearby horne. A short time later, Harding received a phone call from Vickie’s aunt requesting that Harding come pick up J. Howard. Harding rushed back to the ranch. When she arrived, she found Vickie talking with her aunt in a car in the driveway. Harding found J. Howard in the house. His hair was standing up, his clothes were disheveled, and buttons were missing from his shirt. Although he would not tell Harding what happened, he made her promise that she would never again leave him alone with Vickie at her house. He stated that his marriage to Vickie had been a mistake. He also stated that Vickie thought of him as a bottomless pit financially, which was not true. He stated that he wanted to teach Vickie how to handle her money, but all she wanted to do was spend.
  • During Christmas of 1994, J. Howard again flew to Los Angeles with Wyche to visit Vickie. When he arrived at her house, Vickie was drunk and having a party with some friends. Soon after his arrival, she sent J. Howard to bed and continued on with her party. On December 23, 1994, J. Howard gave Vickie a stuffed bear with an emerald pendant necklace. She served him breakfast. Because the bacon was raw, he avoided eating it. When she complained that he was not eating the food, he swallowed it. The raw bacon, however, made him sick.
  • That evening, Vickie insisted that J. Howard go out with her for dinner even though he did not feel well. While they were out, Vickie left J. Howard in his wheelchair in the rain. Afterwards she went dancing with her bodyguard, while Wyche stayed with J. Howard at the house. On Christmas day, Vickie had Wyche take pictures of her and J. Howard. Although they posed together for pictures, she did not spend the day with him. Before J. Howard left, he gave her an envelope full of cash several inches thick. After J. Howard returned to Houston, he became seriously ill and, in January of 1995, was hospitalized. Following his stay in the hospital, he returned to his home in Houston…. Vickie flew to Houston. While at J. Howard’s house, she tried to feed him chicken soup. J. Howard had difficulty swallowing, and Vickie’s feeding him the soup caused him to choke, and he lost consciousness. J. Howard’s driver called 911, and eventually succeeded in reviving him.
  • On May 26, 1995, Vickie visited J. Howard at his Texas home, exposed her breasts and asked him to repeat into a tape recorder that he intended to give her half of all of his assets. J. Howard refused. On August 4, 1995, J. Howard died of heart failure. He was ninety-one years old. On the night before he died, J. Howard refused Vickie’s phone call. During his marriage, J. Howard called Vickie daily, leaving messages for her to call him. She did not return his calls, contacting him only when she wanted money. During the last month of J. Howard’s life, Vickie did not visit him in Houston.
  • Although J. Howard clearly loved Vickie, he ultimately called her “unteachable.” As Nurse Harding described J. Howard’s experience with Vickie, “his year of being married to her was just a total long, lonely, frustrating, miserable existence.”

(Citations to the record omitted.)
© Steve Jakubowski 2006