A judge Monday rejected the defense’s emergency motion for a mistrial in Robert Durst’s murder trial based on the New York real estate scion’s health conditions.
Superior Court Judge Mark Windham ruled there is “no basis for a delay,” marking the third time within recent months that he has denied the defense’s bid for either a mistrial or an indefinite delay because of health conditions affecting Durst, who is charged with the December 2000 killing of Susan Berman at her home in the Benedict Canyon neighborhood near Beverly Hills.
“He has endured 11 weeks of trial, but remains mentally present,” the judge said of Durst shortly before denying a defense motion that alleged the 78-year-old defendant is “physically incompetent to proceed with trial, including with testifying in his own defense.”
A doctor privately retained on Durst’s behalf “embellishes by describing a situation he has not even observed as if Mr. Durst every day were sitting in a pool of urine and feces,” the judge said, calling that “just false” and saying “this falsehood reveals the witness’ bias.”
Dr. Keith Klein — who examined Durst twice and reviewed his medical records — testified last week that he believed that Durst should be immediately hospitalized and that his medical conditions are affecting his cognitive abilities. Durst has a series of “active problems,” including bladder cancer, esophageal cancer and chronic kidney disease, Klein wrote in a letter that was included with the defense’s motion for a mistrial.
“The histrionics are contradicted by the medical records which, in fact, support his treating physician’s determination that Mr. Durst is fit to come to court,” the judge said. “The mistrial motion suggests a due process claim that Mr. Durst is physically unable to testify, but the evidence does not show he is unable.”
The judge said “the gravity of the crime dwarfs the significance of Mr. Durst’s illness” and the law “does not support ending proceedings, suspending proceedings or releasing the defendant prior to a verdict.”
The judge noted that the court will take “measures to mitigate Mr. Durst’s discomfort,” including taking breaks as needed.
At a hearing last Thursday, Durst’s lead attorney, Dick DeGuerin, had urged the judge to “put a stop” to the trial, saying his client is “too sick to continue.”
“He’s too sick to make the decision whether to testify,” Durst’s lawyer said then. “It’s cruel and unusual for Mr. Durst to be put through this in his condition. You should put a stop to this.”
Durst was subsequently taken to a clinic Friday in which doctors re-inserted a catheter, DeGuerin said, telling the judge on Monday that his client’s health condition is “declining.”
Deputy District Attorney John Lewin countered last week that “what is very clear is Mr. Durst wants a mistrial any way he can get it.”
“… What this is is not a request for a mistrial. What this really is is a request for Mr. Durst to get a go home, get out of jail free card and never be tried again …,” Lewin said.
The prosecutor noted that Durst had “very serious cancer in 2005” and “he’s still here.”
“He will probably outlive us all,” Lewin added.
Jurors are due back in the Inglewood courtroom on Tuesday, when the prosecution is scheduled to wrap up its case in chief and the defense is expected to begin presenting its portion of the case.
In his opening statement last year, DeGuerin had told jurors that they would hear testimony from his client. He reminded the panel again in June that they would hear from Durst after the trial resumed following a delay of more than a year as a result of the COVID-19 pandemic.
But defense attorneys wrote in their motion for a mistrial 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.”
At the hearing Monday outside the jury’s presence, DeGuerin told the judge, “I ask that we not be required to start with Mr. Durst before Wednesday.”
The judge said he would take a personal waiver from Durst if he opts not to testify in his own defense.
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, 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 his neighbor, 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 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 began 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.
DeGuerin 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.”
Durst 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.
Durst 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.