Prosecutors pressing first-degree murder charges against Robert Durst for the shooting of his friend Susan Berman in Los Angeles 14 years ago have given little indication that their case is stronger now than it was a decade ago, prompting legal experts to wonder if they can find enough to try him, let alone secure a conviction.
The one legal filing made public since Durst’s arrest last weekend in New Orleans, an affidavit attached to a warrant for the search of his principal residence in Houston, appears to provide ample ammunition to Durst’s defence lawyer, Dick DeGuerin, as he prepares to challenge the legal basis for the arrest in court next Monday.
The affidavit, written in Texas but based on information provided by the Los Angeles police department, mentions two handwriting experts willing to identify Durst as the author of an anonymous note seemingly sent by the killer to the Beverly Hills police on the day of Berman’s murder in 2000. But the affidavit also mentions a previous analysis of the handwriting that identified the author as someone else entirely.
Despite the LAPD’s insistence that the murder charges are based on a new law enforcement investigation, not just revelations made in HBO’s The Jinx, the dramatic finale of which aired less than 24 hours after Durst’s arrest in New Orleans, material from the documentary is featured prominently in the affidavit.
Little other new evidence does.
“It’s still a thin case,” said Laurie Levenson of the Loyola Law School in Los Angeles. “The affidavit meets the standard of probable cause for a search warrant, but it does not meet the standard of proof beyond a reasonable doubt.”
Levenson and other legal experts acknowledged that the LAPD and the district attorney’s office in Los Angeles might have kept the information in the affidavit to a minimum and withheld other evidence, in part because of the case’s media exposure and the risk of contaminating the testimony of any new witnesses who want to come forward.
But the affidavit also offers clues that authorities are on an aggressive hunt for evidence to make their case. For example, the affidavit asks for permission to seek information relating to Durst’s credit cards and financial records – information that could as easily have been obtained by issuing subpoenas to banks and other financial institutions where Durst, the multimillionaire scion of a New York property dynasty, holds accounts.
“The request for these financial documents is a way to get into his computers,” said Alaleh Kamran, an experienced criminal defence lawyer in Los Angeles familiar with the practices of both the LAPD and the district attorney’s office. “They’re looking for anything that can show motive, consciousness of guilt, evidence of his movements around the time of Berman’s death or preparations he might have been making to flee.”
Asked if she would characterize such a search as a fishing expedition, Kamran said: “That’s exactly right … My first instinct as a defence attorney is to think this is an extremely broad search warrant.
“They’re clearly looking for evidence that can corroborate the handwriting identification and provide clues about the missing body [of Durst’s first wife Kathie, who disappeared in 1982]. They’re trying to put all these different things together.”
As viewers of The Jinx know, there are plentiful grounds to suspect Durst of committing at least three murders – Kathie (now pronounced legally dead although her body was never found), Berman and Morris Black, a 71-old-man he shot and dismembered in Galveston, Texas, in 2001.
Meeting the legal standard required to try and convict him of these alleged crimes is another matter, however. Durst was acquitted of the Black killing in 2003 after arguing that he acted in self-defence. He has never been charged in connection with the other two cases.
The Jinx bolstered the handwriting evidence against Durst thanks to an envelope found by the film-makers in which Durst wrote in block letters much like those on the anonymous note and misspelled Beverly Hills in exactly the same way. Durst was also recorded talking to himself in a bathroom and saying: “What the hell have I done? Killed them all, of course.”
Both these things, while gripping television, present problems for the prosecution. Handwriting analysis is often considered junk science in US courts, although a savvy prosecutor could simply present writing samples to the jury and let them decide if they match. The bathroom confession, meanwhile, is subject to multiple interpretations. Durst could have been talking sarcastically, or playing out scenarios in his head of what other people might say about him.
DeGuerin, Durst’s defence lawyer, has already accused the Los Angeles authorities of arresting Durst not on the facts but “based on ratings” for the TV show. While his efforts to free his client immediately are unlikely to meet much success – not least because the New Orleans authorities are pressing charges relating to the gun and a stash of marijuana found in his hotel room after his arrest – he can ask a lot of uncomfortable questions about the strength of the government’s case.
Levenson said the affidavit suggested a “traditional circumstantial evidence investigation”. The authorities have never managed to place Durst in Los Angeles on the day of Berman’s death or trace the fatal bullet back to him.
They know he was in California at the time. They know he made inconsistent statements about his movements when he was first questioned in the case.
But these things, along with the handwriting evidence, may point only to knowledge of the crime, Kamran said. Even if a jury accepts he was an accessory after the fact, that does not necessarily make him the murderer. “Without the full evidence packet from the prosecution we can’t be sure,” she said, “but I don’t think the government has a theory yet that they can prove beyond a reasonable doubt.”
