A Los Angeles Superior Court judge Tuesday denied the defense’s request for a mistrial in New York real estate scion Robert Durst’s murder case, which has been on hold for more than three months as a result of the coronavirus pandemic.
Judge Mark E. Windham noted that Durst’s attorneys had asked for the trial to be postponed in mid-March shortly after testimony began, and that the trial has been delayed twice since then as the pandemic forced court officials to close the county’s courthouses to all but time-sensitive, essential matters.
“The data about COVID is so compelling it’s easy to forget that it was the defense that requested this adjournment and now it’s the consequences of that adjournment to which they now object,” the judge said. “A party can’t move for adjournment and then demand a mistrial because their motion was granted.”
Appearing by telephone, one of Durst’s attorneys countered that the defense team was “afraid we were going to get sick” and that the case would have been adjourned anyhow because of the temporary closure of many of the county’s courtrooms as a result of the pandemic.
“The defendant is not asking for a do-over, your honor — just a fair and fresh start,” David Chesnoff said, telling the judge that the defense’s motives are “pure” and that three of Durst’s attorneys have been urged by their personal physicians not to resume the trial until medically appropriate.
He added that lead attorney Dick DeGuerin has been told by his doctor not to travel from Houston, Texas, and “can’t keep his promise to the jury to put Mr. Durst on” the stand during the trial because he had taken on the responsibility of preparing Durst to testify in his own defense.
Deputy District Attorney John Lewin countered that Durst wanted a “do-over” of the trial, noting that the defense had repeatedly unsuccessfully asked previously for a mistrial.
“They want to start this case from scratch,” the prosecutor said, telling the judge that the prosecution’s concern is that Durst should not be treated differently than any other defendant in Los Angeles County.
The judge ordered attorneys from both sides to appear in an Inglewood courtroom July 17 or to justify why they are not in court for a hearing to determine whether the trial should proceed as scheduled on July 27.
“And at that point, the burden will be on the defense to prove why the trial should not proceed on July 27,” Windham said. “Of course, I want to avoid creating a super-spreader event. We won’t do that.”
The judge noted that he wants jurors to “feel safe” and that he expects the panelists to let him know when they return to court if they have any problems with continuing their service as jurors on the case given the delay.
He said he doesn’t expect that witnesses will be called to testify July 27 so there is time to hear from jurors, and suggested that it’s occurred to him that he “ought to allow an opening statement by each side” without any audio-visual presentations.
Court officials plan to move the trial from the courthouse near Los Angeles International Airport, where jurors initially began hearing the case, to a larger courtroom at the Inglewood courthouse a few miles away. The move will better enable the court to implement social-distancing protocols, according to court spokeswoman Mary Hearn.
Prosecutors allege that Durst killed Berman after she told him she was going to talk to investigators looking into the still-unsolved 1982 disappearance of Durst’s first wife, Kathie.
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 alleged 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.
In his opening statement in Durst’s Los Angeles trial, the defendant’s lead attorney told jurors that Durst panicked after finding Berman’s body in her home while coming to visit her for the holidays. Durst wrote an anonymous “cadaver note” that was subsequently mailed to Beverly Hills police so her body would be found, DeGuerin said, noting that Durst would testify in his own defense during the trial.
Durst was profiled in a six-part HBO television series “The Jinx: The Life and Deaths of Robert Durst,” in which the defendant was later recorded saying “There it is, you’re caught” and “killed them all, of course.”
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. 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.