Robert Durst’s attorneys have filed an emergency motion for a mistrial in the New York real estate scion’s murder trial, contending that he has life-threatening health issues that are continuing to worsen.
In court papers filed Wednesday, the defense lawyers wrote that their 78-year-old client, who has bladder and esophageal cancer, has “serious health issues which are currently afflicting him, and that he is physically incompetent to proceed with trial, including with testifying in his own defense.”
The defense team is requesting a hearing before Superior Court Judge Mark Windham on Monday morning, when testimony is set to resume in Durst’s trial for the December 2000 killing of Susan Berman at her home in the Benedict Canyon area of Los Angeles.
The judge has denied the defense’s bid for either a mistrial or an indefinite delay in the trial because of Durst’s health twice within recent months.
At a June 15 hearing, Windham said that the defendant’s health is “very, very concerning,” while noting that the case is “enormous in its impact on the community, on witnesses, on a huge number of people (who) are affected by how we proceed” and saying that particular factor weighs against a delay.
The judge had also turned down the defense’s request at a May 17 hearing, shortly before Durst’s trial resumed following a delay of more than a year because of the COVID-19 pandemic.
In their latest court papers, Durst’s attorneys wrote that “Mr. Durst is in an impossible situation in that he cannot physically testify in his own defense at trial, and if he attempted to, he risks suffering further damage to his health or death.”
Durst’s lead attorney, Dick DeGuerin, told jurors in his opening statement last year that they would hear testimony from Durst and reminded them again when the trial resumed in June that they would hear from his client.
“Because he cannot physically endure testifying in order to protect his health, he risks a conviction by a jury who did not get to hear his side of the story. This would result in irreparable harm which warrants a mistrial,” Durst’s attorneys wrote.
“Contrary to the prosecution’s prior arguments, Mr. Durst is in seriously poor health and it is supported by his medical records” and the declaration of Dr. Keith L. Klein, who has examined Durst twice and reviewed his medical records, according to the defense attorneys.
Deputy District Attorney John Lewin had argued at the June 15 hearing that the defense will do “anything they can” to secure a mistrial or delay in the trial.
The defense’s latest filing includes a letter from the doctor, who wrote that Durst has a “litany of chronic medical conditions, several are of such severity that his death in the next six months would not be surprising.”
“His most immediate and life-threatening issues are his malnutrition, kidneys, bladder and cardiac illnesses,” Klein wrote in a letter Tuesday to the defense attorneys.
Durst is charged with murder for the shooting death of Berman, a 55-year-old writer with whom he had been close friends for years after the two met at UCLA.
The murder charge includes the special circumstance allegation that she was killed because she was a witness to a crime.
The prosecutor told jurors when the trial resumed this year that the evidence would show that Durst shot and killed Berman “out of survival” because he feared she would tell authorities about his involvement in the disappearance of his first wife, Kathie.
During his updated opening statement, Deputy District Attorney John Lewin called the cases of Kathie Durst and Susan Berman “interrelated,” and told jurors they would hear evidence that Durst killed his wife and used Berman to help cover up his part in the crime, and that he subsequently had to kill another person, Morris Black, in Galveston, Texas, in 2001, because the man figured out who Durst was and was putting pressure on him.
Durst was acquitted of murder in Texas after testifying that he killed his neighbor, Morris Black, in self-defense in September 2001. Los Angeles County prosecutors allege that Durst was in Galveston, Texas, while posing as a mute woman after authorities launched a new investigation into what had happened to Kathie Durst.
“Susan Berman never saw what happened. She never knew it was going to happen. She turned around because she trusted him because he was her close friend. He was not someone to fear … She took a few steps and he basically blew her brains out,” Lewin told jurors.
Durst’s lead attorney countered that his client had “no motive” to kill his longtime friend and had “nothing to gain” from her slaying.
“Bob Durst did not kill Susan Berman and he does not know who did,” DeGuerin told the panel twice, reiterating his opening statement to jurors in March 2020 shortly before the trial was stalled for more than a year by the COVID-19 pandemic.
Durst’s attorney said the disappearance of Kathie Durst and Berman’s killing were “completely dissimilar” to Black’s shooting death.
“Whoever killed Susan Berman left no clues. Kathie Durst disappeared without a trace. After Morris Black’s death, the police found hundreds of clues,” the defense attorney told the jury.
He said Durst went to Berman’s home in December 2000, found his close friend dead and “freaked out,” then sent a note to Beverly Hills police about her body.
DeGuerin also told jurors that his client — whom he said suffered from what has been known as Asperger’s syndrome — has “been considered a little bit weird” and run away all of his life and “doesn’t make what we would consider good decisions.”
The defense attorney also disputed the prosecution’s contention that Berman made a phone call posing as Kathie Durst and called Berman a “storyteller” who had a “great imagination” and “made things up.”
DeGuerin told the panel that a six-part HBO series “The Jinx: The Life and Deaths of Robert Durst,” in which the defendant was recorded saying “There it is, you’re caught” and “killed them all, of course,” was “heavily edited” and “not a documentary.”
The defense attorney said Durst “wanted his story out,” but chose the wrong people to tell that story and realized by the time the fifth episode aired that it was a “hatchet job.”
He has been behind bars since March 14, 2015, when he was taken into custody in a New Orleans hotel room hours before the airing of the final episode of the HBO series, which examined Kathie’s disappearance and the killings of Berman and Black.
Durst has been long estranged from his real estate-rich family, which is 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, and ultimately reached a settlement under which the family reportedly paid him $60 million to $65 million.