Robert Durst is at the center of several legal battles. Individually each one raises complex issues; collectively, they promise to keep Dick DeGuerin, Durst’s criminal defense attorney, busy for a long time to come.
Durst is facing murder charges in Los Angeles for the killing of his friend and author Susan Berman. Berman was found dead of a gunshot wound on December 24, 2000. Durst was arrested recently in New Orleans, and according to his lawyer, was prepared to waive extradition so that he could be promptly brought to California to begin fighting that homicide charge. However, Durst’s speedy return to L.A. has now been delayed because of the possibility that New Orleans prosecutors will file charges there relating Durst possessing a handgun and some marijuana at the time of his arrest. (Since Durst is a convicted felon, possession of the gun is illegal.) Prosecutors in Louisiana are apparently reluctant to allow Durst to leave Louisiana so that they don’t lose jurisdiction over him.
Out of the Frying Pan, Into the Fire
Of course, once Durst leaves Louisiana for the sunnier climate of Southern California, he’ll be in for (yet another) murder trial, this time a first-degree murder case that could make him eligible for the death penalty. Under California law, there are certain “special circumstances” that make an accused murder defendant eligible for capital punishment, and two of them apply to Durst: one is committing a killing after “lying in wait,” and the other is murder of a witness. While Durst may be eligible for the death penalty, it will ultimately be up to a committee from the Los Angeles District Attorney’s office to decide whether or not to seek death. If they do not opt for death, Durst still faces a life sentence.
Shades of Drew Peterson?
Being acquainted with Durst may be as dangerous as being married to convicted killer Drew Peterson, the former Chicago police officer convicted of killing his third wife (and suspected of killing his fourth, whose body has still never been recovered). Or perhaps knowing Durst is like being the drummer from the fictitious rock band Spinal Tap, each of which whom died under mysterious circumstances ranging from a bizarre gardening accident to spontaneous combustion.
In the case of Durst, it was his wife Kathleen who disappeared in 1982 while the couple lived in New York. Berman, a friend of Durst’s from college, was his spokesperson in the media attention that surrounded Kathleen’s disappearance. When New York authorities began looking into Kathleen’s disappearance years later, investigators reached out to Berman for more information. Berman may have made a fatal mistake in revealing that to Durst; it was after that when her body was discovered.
Fool Me Once, Shame On You…
Durst has some experience beating murder cases before. It was several months after Berman’s death when Durst was arrested, charged and acquitted in the death of his Texas neighbor, Morris Black. Even though Durst admitted to cutting up Black’s body and dumping his remains into Galveston Bay, Durst was successful in mounting a defense of self-defense, and walked out of court a free man.
What may ultimately be his undoing in a court of law (and what is certainly not helping his cause in the Court of Public Opinion), are the now infamous comments Durst muttered during a trip to the bathroom after an interview for an HBO documentary. The words he spoke are clear, but that’s where clarity ends. Whether the tape will be admissible in court, and if it is, what his lawyers will claim those words mean, are still very much open questions.
Generally speaking, words or acts of a party to the case are admissible as an exception to the hearsay rule (though jury instructions do tell jurors to view any out of court statements attributed to the defendant with skepticism, that likely goes out the window when, as here, they can hear the words spoken themselves). While there may be some argument about the surrounding circumstances, such as Durst speaking them while in the bathroom, a place he arguably had an expectation of privacy, since the recording was not made by the Government (and since the Fourth Amendment doesn’t apply to private documentary filmmakers), and since Durst was wearing a microphone, he either knew or should have known that people could hear his vocalized thoughts, and therefore my bet is that the statement will come in. While there may be a privilege for words spoken to a lawyer or priest, there is no privilege established for talking to yourself while wearing a microphone!
Ultimately, no matter whether Durst’s statement comes into evidence or not, lovers of real-life courtroom drama know that what 12 jurors will do with the evidence inside the privacy of a jury deliberation room is another matter. Just ask Casey Anthony. Or OJ Simpson. Or even Jodi Arias. Sometimes the verdict in a court of law, and the one in the Court of Public Opinion, are very different indeed.
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Darren is an accomplished TV personality, attorney, interventionist, keynote speaker, and 'misbehavior expert' who appears constantly on countless TV and radio shows.