The lead prosecutor in Robert Durst’s murder case asked the defense Friday to consider whether a judge could hear the trial without a jury or to grant a recess until mid-April as a result of the coronavirus pandemic, which forced the trial to be sidelined shortly after it got underway four months ago.
After Los Angeles Superior Court Judge Mark E. Windham ruled that there was “no legal justification” for the defense’s latest bid for a mistrial, defense attorney David Chesnoff said one of the members of Durst’s legal team will meet with their 77-year-old client to discuss Deputy District Attorney John Lewin’s proposals.
The judge set a July 31 hearing to determine whether the defense will agree to either of those options.
The hearing marked the second time within less than a month that the defense had asked for a mistrial. Durst’s attorneys have cited concerns about the health risks to trial participants and delays that might dull jurors’ memories of evidence that was presented during the first two days of testimony in Durst’s trial on a charge that he murdered his longtime friend, Susan Berman, at her home in the Benedict Canyon area of Los Angeles in December 2000.
“This situation, your honor, is far worse than it was on March 12th,” one of Durst’s attorneys, David Chesnoff, told the judge by telephone. “We strongly believe in light of the serious pandemic which continues to worsen, the court must grant a mistrial.”
Lewin, who appeared in court with a mask on his face, countered that Durst’s attorneys have repeatedly sought a mistrial and that the defense wants a “do-over” of the trial. Chesnoff objected to the prosecutor’s characterization, maintaining that the defense was not trying to do the case over anew.
The pandemic forced court officials to close the county’s courthouses to all but time-sensitive, essential matters, and the trial has been on hold since mid-March.
The prosecutor noted that a supervising judge has encouraged that as many jury trials as possible be converted to court trials, in which a judge hears the trial and no jury is needed.
“So, we make the offer today knowing how much both sides respect this court, how much admiration both sides have for this court. We are more than willing today, your honor, to right now agree that we continue this case as a court trial whenever the court deems that it be safe. That then eliminates any issue of jurors … So I’ll leave that percolating with them,” Lewin told the judge.
The prosecutor also suggested that jurors could otherwise be instructed to return to court April 12, rather than being inconvenienced by a “permanent delay by installments” in which the trial’s date might repeatedly be postponed because of concerns about the spread of COVID-19.
“Now if the defense is sincere in their issue that this is about COVID-19, then they should jump at this proposal that I’m making right now,” Lewin said. “This allows them to be safe, it allows their client to be safe … We pick up where we left off with this jury and we make accommodations as they are needed when we get to that point.”
Chesnoff noted that the defense is considering the prosecutor’s proposal but needs to talk with Durst about the proposals so the defendant can “give a reasoned answer.” He noted that the defense wanted the proposals to remain open during that time.
The judge said he would immediately need to let jurors know that there is going to be another delay in the trial.
“This all is subject to discussion,” Windham said. “We have more flexibility with a court trial — as to witnesses, as to scheduling, as to appearance (in court) in person or remotely.”
In opening statements to the jury in March, the prosecutor alleged 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, Dick DeGuerin, 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.
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.