A Los Angeles judge Monday denied an emergency motion filed by Robert Durst’s attorneys asking for his murder trial to be postponed indefinitely, clearing the way for the jury to hear abbreviated opening statements on Tuesday.
Superior Court Judge Mark Windham ruled only on the continuance — saying he would not hear testimony Monday from Durst’s doctor about the 78-year-old real estate scion’s “life-threatening health issues” or rule on whether the defendant should be released on a “high bail amount” due to the lack of the required 10 days notice by the defense team.
The case has been on hold since mid-March 2020 as a result of the coronavirus pandemic, which forced court officials to close the county’s courthouses to all but time-sensitive, essential matters. Jurors returned Monday morning for orientation.
Durst, a New York real estate scion, is charged with murder in the killing of Susan Berman, his longtime friend, who was shot to death at her Benedict Canyon home just before Christmas Eve 2000.
He was not present in court, but the defense team questioned reports by sheriff’s deputies that he had willfully refused to appear. Durst’s lead attorney, Dick DeGuerin, said custody deputies refused to allow him to visit or speak to his client Monday afternoon. The judge ordered the defendant to be brought to court Tuesday morning.
In making the case for a continuance, DeGuerin, reeled off a list of serious health concerns including severe malnourishment, a recurrence of esophageal cancer, atrial fibrillation, chronic kidney disease, coronary disease, chronic obstructive pulmonary disease and spinal disease. He said Durst has gotten “much worse” in the last year.
In a motion filed last Thursday, Durst’s attorneys wrote that their client’s bladder cancer was going untreated and was just one of a “myriad of life-threatening health issues.”
DeGuerin boiled it down for the court Monday: “The doctor simply says: the question is not whether he can endure the rigors of a trial, the question is whether he can survive at all.”
DeGuerin argued that Durst is not getting the care he needs in jail, saying he is being treated by medical students and needs multiple additional consults by specialists.
Deputy District Attorney John Lewin countered by citing a video clip of Durst talking some time ago about the excellent care he was getting in jail and the fact that doctors there identified his bladder cancer.
“He is being treated by residents. Residents are doctors, they are under the supervision of attending physicians. That is what happens when you are in a hospital, a teaching hospital, of which County-USC is one of the best in the world,” Lewin said.
“He is living in what is in essence a hospital bed in a medical unit … he is at the very top of the quality of care that can be given in the system,” Lewin said. “There’s no question that with Mr. Durst’s $100 million, he could probably afford the best care at the best hospitals in the world, but unfortunately, he’s been charged with capital murder.”
The prosecutor accused the defense of trying to garner a “get out of jail free card” for their client, saying “the goal here is simply to have this trial go away.”
The defense argued in its motion, “While the charge at issue is serious, the requested conditions of GPS monitoring, release to a medical facility with security, and a high bail amount, will ensure that Mr. Durst is not a risk of flight and he is not a danger to the community,” adding that Durst would “pay for and provide his own security.”
The judge said he was concerned about Durst’s health and wanted to hear more, but that the law requires additional notice on such a motion. He agreed to set a hearing and hear medical testimony, but did not specify a date.
Windham also addressed a request by the defense for a new juror questionnaire to be administered, something he had earlier indicated he would deny.
The judge said no good cause had been shown for reopening the jury selection process. He added that the suggested questionnaire was invasive of jurors’ privacy and was geared toward persuading jurors to avoid service.
“The questionnaire very obviously encourages jurors to avoid responsibility by suggesting excuses,” Windham said. “If someone were to design the ideal questionnaire to cause a mistrial, this would be it.”
The judge has repeatedly denied the defense’s motions for a mistrial.
He quizzed jurors Monday afternoon about whether they had read or seen news reports about the case despite admonitions not to do so and about any health concerns or new extreme hardship that could affect their ability to serve.
The defense also raised an objection to the court’s limiting of public seating in the courtroom, which the judge countered by citing case law, coronavirus public health orders and noting that Durst is not necessarily entitled by law to such a large defense team.
“If he didn’t have four lawyers, I’d have space for additional members of the public,” Windham said, noting that the proceedings are also being livestreamed to allow adequate public access.
In response to a question by the prosecution, Windham said all witnesses would be required to appear in person, not via video.
Jurors heard opening statements and two days of testimony about Berman’s killing before the case was put on hold last year.
Attorneys will give abbreviated opening statements Tuesday due to the lengthy disruption of the trial, which was moved from the Airport Courthouse in Los Angeles to a larger courtroom at the nearby courthouse in Inglewood because of concerns about social distancing.
Late Monday afternoon, the judge dismissed jurors and addressed issues of evidence in each side’s statements.
In opening statements last year, Lewin alleged that Durst killed Berman after she told him she was going to talk to investigators looking into the still-unsolved 1982 disappearance of his first wife, Kathie.
DeGuerin told jurors last year that Durst panicked after finding Berman’s body in her home while coming to visit her for the holidays. He said Durst wrote an anonymous “cadaver note” that was subsequently mailed to Beverly Hills police so her body would be found, noting that Durst would testify in his own defense.
In its new opening, the prosecution wanted to present contradictory statements made by defense counsel about whether Durst did or didn’t write that note. Windham ruled that those statements don’t amount to evidence and could not be included.
Windham also excluded some of the defense’s planned opening, telling DeGuerin that he couldn’t present hearsay about two witnesses who said they saw Kathie Durst in Manhattan on Feb. 1, 1982, after she went missing.
Tensions ran high during the discussion, during which Lewin accused the defense of coming up with a new theory at the 11th hour. The defense argued that the alleged sightings were exculpatory, because Durst wouldn’t worry about Berman as a witness if he didn’t think he was at risk of prosecution in connection with his wife’s disappearance.
At one point, Lewin and DeGuerin began shouting at one another, standing and flinging accusations of lying, leading the judge to demand that they both sit down and stay completely silent for a long beat before he allowed the hearing to continue.
Ultimately, the judge decided that the alleged sightings have “all the earmarks of fabricated evidence that (Durst) should not profit from.”
Other issues of evidence were settled earlier.
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.
Durst’s attorneys have argued that evidence about what happened to Black in Galveston would inflame the jury and should not be allowed at this trial.
At a hearing earlier this year, the judge said evidence of Black’s dismemberment and Kathie Durst’s disappearance could be introduced at trial to support a special circumstance allegation that Berman was killed because she was a witness, rather than to prove Berman’s murder.
The judge said the prosecution could also use that evidence from Galveston to rebut the claim that Durst’s wife had merely disappeared rather than been killed.
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, and ultimately reached a settlement under which they reportedly paid him $60 million to $65 million.