With all the recent buzz around real estate heir and accused murderer Robert Durst in the aftermath of the HBO series "The Jinx," msnbc reached out to top New York attorney Charles Stillman to answer all of your legal questions about the Durst case -- in plain English. Stillman is a founding partner at Stillman & Friedman in New York City and the co-managing partner of the New York office of Ballard Spahr, which merged with Stillman & Friedman in 2014. His clients have included a former U.S. secretary of defense, the mayor of New York City, the chief judge of the State of New York, the Reverend Sun Myung Moon, and large corporations and their officers and directors.
The popular TV series “Law & Order” often presented fictionalized versions of actual crimes; “ripped from the headlines” blared the dramatic introduction to each episode. The crimes were committed, investigated and usually tried to conviction within one hour. HBO's "The Jinx" took a similar approach: First came the headlines, then the docu-series. The difference? This time, the made-for-TV drama was followed by even more sensational headlines about its subject.
Over the course of almost 30 years, real estate heir Robert Durst has been the suspect and/or the accused in three alleged homicides. The first was in Westchester County, New York, in 1982, and involves his wife Kathleen. She disappeared under mysterious circumstances and her body has never been found. It has been reported that an investigation continues into that alleged crime.
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Most crimes are subject to a statute of limitations – a designated number of years within which a particular crime must be prosecuted. The theory underlying such statutes is based on common sense; over time, memories fade, evidence disappears, and thus a legal limit is set. Murder is an exception. As a society, we have concluded that taking the life of another is so serious that no time limit is placed on prosecutions. Thus, in New York state (where Kathleen Durst lived and vanished) and in California (where Susan Berman lived and died, as discussed below) there is no statute of limitations for murder.
The second homicide occurred in 2000, when Berman was found dead in her Los Angeles home with a bullet wound to the back of her head. Berman was reportedly one of Durst's closest friends.
The third and final homicide involving Durst took place in 2001. It was the infamous “chop-up-the-body” killing of Durst’s neighbor in Galveston, Texas, and it marked the only instance -- at the time -- when Durst was charged with the killing. Durst prevailed in court, claiming a combination of self-defense and accident. There was no charge concerning his admitted mutilation of the corpse.
Now, approximately 15 years since her death, Durst is accused of murdering Berman.
He was arrested on Saturday in New Orleans, Louisiana. Legally, he could not be sent automatically to California without a court proceeding known as extradition, during which a Louisiana court would determine whether there was sufficient cause to send him there. And while Durst waived the extradition process, certain weapons offenses Durst allegedly committed in Louisiana could delay his transfer to the west coast. But because the California charges are far more serious, chances are prosecutors in the two states will make an arrangement with the defense in order to prioritize the cases.
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The newest case was not “ripped from the headlines.” Rather, it was presented as part of a vivid and riveting TV-telling of Durst's story that focused on the three homicides to which he was connected. Durst won the first round. Will he win the second?
The legal question at the heart of Durst's case is whether the state can prove beyond a reasonable doubt that he killed Berman. But even before Durst arrives in California, an intriguing issue arises: Will the HBO footage be admissible in court as evidence against Durst?
"The Jinx" told the story of Robert Durst, his life and relationships with three individuals, presented in six episodes, each building dramatically to a climax, which, arguably, was designed to establish -- or at least strongly suggest -- that Durst killed Berman. There was no "a-ha moment," no weeping confession. Rather, the series ended with a seemingly friendly parting between Durst and filmmaker Andrew Jarecki. The show was over.
Or was it?
Durst asked to use the restroom, and off he went. But, apparently unknown to all concerned, he was still wearing a microphone. It was not turned off. Thus, while off-camera and in the bathroom, Durst could be heard talking to himself. “There it is. You’re caught," Durst says. "You’re right, of course ... What a disaster. He was right. I was wrong ... I’m having difficulty with the question. What the hell did I do? Killed them all, of course."
Is it a confession that will hold up in court? There is no simple answer. Indeed, there will be no answer until the issue is presented to and decided by a California judge under California law. The best we can do in the meantime is consider the law that governs the admissibility of criminal evidence at trial.
First off, it's not hearsay. The words are the statements of the accused and thus are deemed an “admission.” And even though they were uttered outside the courtroom and may seem like hearsay, they are not. Assuming other tests of admissibility are passed, they could be usable by the prosecution at a trial.
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The more complicated issue relates to the voluntariness of Durst's statements. For now, there does not appear to be any evidence of coordination or cooperation between the filmmakers and law enforcement prior to Jarecki's interview with Durst. Reportedly, that happened later. If there was contact between the show's creators and the police in advance of the interview, questions would arise as to whether Durst was tricked into participating unknowingly in what essentially amounts to a police interrogation, designed to develop evidence against him, perhaps even including the off-camera “confession.”
There will be a question about whether there was any written agreement between Durst and the filmmakers that spells out the rights of each party to the process. Who owns the words? Did the interview's subject retain the right to edit anything he said? If such an agreement exists, it likely would not address Durst's "bathroom confession," but it could shed some light on the ways in which Durst intended for his words to be used.
In deciding the admissibility issues, the California judge will deal with what are called conflict of interest rules. Which state's law should apply to judging the admissibility of Durst's statements? Will it be New York, where the filming took place? Or does California have the greater interest at stake, especially since that's where Durst could face the death penalty?
Assuming the California judge concludes that there is no legal reason not to allow the so-called confession into evidence, the question known as relevance arises. Were Durst’s musings about Susan Berman? "The Jinx" sure makes it seem that way, but the confession makes no mention of her -- or any of the other alleged victims -- by name.
The defense will argue that a jury would have to speculate that the words “killed them all” included Berman. And it is well-settled law that jurors are not supposed to speculate.
The judge might rule that the confession does not come into evidence based only on that speculative conclusion. Or, the judge could rule that the jury can consider Durst's words “for what they are worth,” at face value.
Still another issue for the judge to consider is whether the reference to other victims is prejudicial because it portrays Durst as a serial killer. Ultimately, this will be a tough judicial decision.
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Sure, Durst's legal saga makes good television and food for Internet consumption, but at the end of the day, we are a nation of laws with a legal system designed to provide a fair resolution of criminal charges. It doesn’t always work; innocent people are convicted and guilty ones walk free. But it's what we've got. And while Durst's TV-trial already aired, his real-life legal battle is just beginning.