Testimony began Monday in a hearing to determine if there is enough evidence to require New York real estate scion Robert Durst to stand trial for the execution-style shooting death of a close friend in her Benedict Canyon home nearly two decades ago.
Prosecutors have theorized that Durst, who turned 75 last Thursday, killed Susan Berman because police in New York were about to question her in a renewed investigation into the 1982 disappearance of his first wife, Kathleen “Kathie” Durst.
Berman, 55, was found dead in her home on Christmas Eve 2000. She had been shot in the head the previous day. According to court papers filed by the prosecution, an envelope addressed to “Beverley Hills Police” contained a note alerting police that they could find a “cadaver” in Berman’s house.
The first witness to take the stand was a former Los Angeles Police Department criminalist and serologist, who testified about tests he performed on the envelope, saying he did not order DNA testing on it. Carl Matthies said he did test for epithelial cells that would have indicated the presence of DNA and couldn’t find any such cells.
The criminalist acknowledged that DNA testing has evolved significantly since 2001, though it is not his area of expertise.
Asked by defense attorney Dick DeGuerin whether such testing would be futile given the later use of fingerprinting chemicals on the envelope which can degrade DNA, Matthies said, “I wouldn’t say futile … they might now have ways of dealing with various fingerprinting chemicals that might make it fairly easy to obtain a profile, assuming there is some DNA there.”
Karen Minutello, who was the manager at the Dursts’ New York apartment building, testified that Kathie Durst called her a week or two before she disappeared to ask if another unit was available in the building.
“She was asking me for another apartment in the building because she didn’t want to live with Robert anymore,” Minutello testified, saying Kathie was “hesitant, quiet, not speaking in complete, clear sentences … she didn’t want me to say anything. She wanted to get away from him … she was afraid of him.”
When the manager said no other apartments were available, “(Kathie) wanted to know if she could have a roommate … to help with the rent” in her existing apartment, the witness said.
“She wanted someone there to be with her to protect her,” Minutello testified.
Days after the woman went missing, the trash compactor in the building jammed. When the manager went to check it out, she found clothes, notebooks and other personal possessions of Kathie’s had been thrown out.
“Who does that?” Minutello testified. “Who’s loved one is missing and they’re throwing out their stuff?”
On Feb. 4, a day before Durst reported his wife missing, he wrote the manager asking if the apartment could be sublet, according to a letter submitted by the prosecution.
Dr. Mark Fajardo, former chief medical examiner for Los Angeles County, testified that he reviewed the autopsy in Berman’s case and concurred she had been shot at close range in the back of the head, with the gun no more than an inch away.
During cross-examination, Fajardo agreed that the original report cited an “indeterminate range of fire.”
A witness scheduled to be called to the stand on Tuesday is expected to testify to prior incidents of domestic violence by Durst against his wife, according to the prosecution.
Durst, who has previously appeared in court in a wheelchair and a neck brace, showed up at the Airport Courthouse Monday morning wearing a light blue suit and without a brace. He sat quietly and with no visible reaction throughout the day of testimony, including when graphic autopsy photos of Berman were shown.
The murder charge against him in the Berman killing includes the special circumstance allegations of murder of a witness and murder while lying in wait. The Los Angeles County District Attorney’s Office does not intend to seek the death penalty against the defendant, who is the subject of HBO documentary series “The Jinx: The Life and Deaths of Robert Durst.”
Following witness testimony Monday afternoon, Los Angeles Superior Court Judge Mark Windham listened to arguments about whether statements Berman allegedly made to several other people about helping Durst with an alibi or saying Durst killed his wife would be allowed. Defense attorneys have objected to those statements as hearsay, while prosecutors say they should be allowed because Berman is unavailable to testify herself.
Windham did not make a ruling and arguments will continue Tuesday, but he did say the statements, whether true or not, might support the special circumstance allegations in the case.
“(They) tend to prove that she is, in fact, a witness,” Windham said at one point.
Windham allowed prosecutors to call a number of other witnesses last year in order to preserve their testimony in case they were unavailable by the time of Durst’s preliminary hearing or trial — with a prosecutor suggesting that the witnesses might be killed. Defense attorneys countered that their client is in custody and does not pose a threat to anyone who might testify in his murder case.
Two of those witnesses made statements about Berman’s belief that Durst was coming to Los Angeles in late 2000 to visit her.
Windham said those remarks could help support the notion that Berman had an open, friendly relationship with Durst, which would help prosecutors characterize her killing as a surprise attack, one of the elements of lying in wait.
“It is good evidence that the special circumstance is true, if the people do prove that he committed this killing,” the judge said.
But defense attorney Donald Re raised concerns that allowing the hearsay evidence would amount to putting the cart before the horse and usurp the role of a jury at trial.
“The very finding the (court is being asked to make) is that Bob Durst killed the person he’s charged with killing, (leaving) the judge to make that decision when the jury has not,” Re argued.
At a hearing in February 2017 to preserve his testimony, one of the prosecution’s key witnesses, Nathan “Nick” Chavin, testified that he asked Durst after a dinner meeting about Berman, who was a mutual friend, and Durst responded, “I had to. It was her or me. I had no choice.”
Chavin testified that Berman told him after Kathleen Durst’s disappearance that her husband had confessed to killing his wife. He said Berman told him there was nothing they could do for Kathie Durst and that they needed to protect their friend.
Chavin, who described himself as a longtime friend of Durst, acknowledged that it took about seven months of discussions with prosecutors before he told them about Durst’s alleged confession to Berman’s killing. He said he wasn’t ready earlier to disclose what he had heard, and eventually decided to tell prosecutors because he felt what happened to Berman outweighed his loyalty to Durst.
Durst has been behind bars since his arrest March 14, 2015, in a New Orleans hotel room. He was taken into custody hours before the airing of the final episode of “The Jinx,” which examined the disappearance of his wife, and the killings of Berman and a Texas neighbor, Morris Black, in 2001.
Durst went on trial for Black’s death after a nationwide manhunt in which he was located in Pennsylvania, but a jury acquitted him of murder after agreeing with Durst’s contention that he had killed his neighbor in self-defense.
In the finale of “The Jinx,” Durst was apparently caught on microphone saying to himself, “Killed them all, of course,” and “There it is, you’re caught.”
He has been long estranged from his real estate-rich family, known for ownership of a series of New York City skyscrapers — including an investment in the World Trade Center. He split with the family when his younger brother was placed in charge of the family business, leading to a drawn-out legal battle.
According to various media reports, Durst ultimately reached a settlement under which the family paid him $60 million to $65 million.