Nguyen: Getting Robert Durst “Confession” Recordings Into Evidence at Trial

Wednesday, March 25, 2015

AiVi Nguyen, GoLocal Worcester MINDSETTER™

SPOILER ALERT. If you want to watch the HBO documentary series “The Jinx” without knowing the end beforehand, don’t read this. Also, don’t read the news, or go on social media, or talk to anyone in general, because spoilers are everywhere.

I have been following the Durst case since 2003 when he was on trial for the murder of Morris Black, his neighbor in Galveston, Texas, where he lived in hiding, disguised as a mute woman. Yes, it’s one of those cases that I have to say “you can’t make this up” at every twist and turn.

Durst, who comes from an incredibly wealthy family that owns a number of skyscrapers in Manhattan, from which he is essentially estranged, claimed that in 2000 he fled to Galveston to escape the spotlight cast on him by the Westchester County district attorney’s office reopening the investigation of the 1982 disappearance of his wife, Kathleen. The reopening of the investigation happened around the same time that one of Durst’s closest confidantes, Susan Berman, was murdered in Los Angeles. Berman, the daughter of a Vegas mob boss, is believed to have helped Durst cover up his wife’s disappearance in 1982.

Black’s dismembered body was discovered in trash bags floating in Galveston Bay (except his head was never found). Durst claimed that he had acted in self-defense and shot Black, then panicked thinking that no one would believe it was self-defense given the whole missing wife and murdered best friend thing. So naturally he chopped up the corpse and dumped it into the Bay. Totally believable, right? Well yes actually, because Durst was acquitted of Black’s murder. You can’t make this up.

So after his acquittal in Texas, did Durst count his lucky stars and ride off into the sunset, never to be heard from again? Not exactly. After seeing “All Good Things,” a 2010 movie based on his life (starring Ryan Gosling and Kirsten Dunst), he contacted the movie’s director because he wanted to tell his side of the story. And then “The Jinx” was born.

The closing minutes of the series show the director confronting Durst with some damning handwriting samples that suggest he murdered Berman in 2000. After a painfully awkward interview, Durst excuses himself to the bathroom, off camera. However, his microphone is still on. Allegedly, the recordings capture Durst saying things like:

“There it is. You’re caught!”

“You’re right of course, but you can’t imagine.”

“Arrest him!”

“I don’t know what’s in the house.”

“Oh, I want this.”

“What a disaster.”

“He was right. I was wrong.”

“And the burping! I’m having difficulty with the question.” (Durst was letting out uncomfortable looking burps during the interview.)

And the clincher:

“What the hell did I do? Killed them all, of course.”

You can’t make this up.

Can these mutterings be used at trial? The legal world is divided.

Durst’s top notch defense lawyers (including one who got him acquitted in Galveston) will no doubt try to suppress the recording. Here are some of the things they may argue:

The recording is not authentic. How can we know if the recording is even real and that it is Durst’s voice captured? Or if it is really Durst speaking, how do we know it hasn’t been altered or spliced or taken out of context? “The Jinx” producers claim that they didn’t discover the bathroom ramblings until 2 years after they were recorded. That seems implausible if the recording was right on the heels of the damning interview. You didn’t check your footage of one of the pivotal moments of your time with Durst until 2 years after? The chain of custody of the recording will be very important in the days to come.

The recording is hearsay. Hearsay is that sexy legal term that you always hear on TV but aren’t really sure what it means. The hearsay rule says that a statement made outside of court cannot be used to prove the truth of what was said. Here’s an example. You told me last week that I am the smartest lawyer in the country. Regrettably, just because you said it doesn’t make it true, and I can’t use that statement to prove that I am the smartest lawyer in the country. So, the same applies for Durst’s statement that he “killed them all” right? Tough to say. Why? Because a confession, made to someone outside of law enforcement, is not considered hearsay. But was Durst confessing? See next argument.

The recording is not a confession. If you listen to Durst, it’s hard to determine why he is even talking. Is he acting out what he believes others expected him to say? Is he musing aloud as to how bad he will look in light of the handwriting samples? Is he just a senile man who mutters things that are untrue? If the judge determines that a reasonable jury could interpret the recording as a confession, Durst’s people will have to explain why it is not one. However, if the judge determines that the recording is significantly more prejudicial than probative, the jury may never hear it.

But let’s be honest, putting all these defense arguments aside, Durst’s recording is a media goldmine right now. Trying to find people who haven’t been exposed to it at some point before the jury selection process will be interesting.