If being creepy were a crime, Robert Durst would have been convicted long ago.  

Not only because he killed and chopped up his Texas neighbor, or admittedly beat his wife and seemingly confessed on tape to murdering her, or even that he has finally been charged with putting a bullet in the back of the head of his close friend, Susan Berman.  These are monstrous crimes, to be sure.  

But Durst is creepy for other reasons:  he lies with impunity, is utterly self-absorbed beyond common narcissism, speaks of “Bob” in the third person as if he were not there, and talks to himself incessantly in a way that lifts the hairs on the back of your neck.    

It is the latter propensity that has landed him in jail, charged with the December 2000 Los Angeles murder of Berman, a crime writer.  To put it simply, Durst incriminates himself by having a conversation with himself in a bathroom.  All the while, a “live” microphone is attached to his lapel during the filming of the HBO documentary “The Jinx: The Life and Deaths of Robert Durst” by filmmakers Andrew Jerecki and Marc Smerling.   

So now, Durst may face the kind of justice he has long evaded.  That is, if prosecutors don’t screw it up.  The good news is that Marsha Clark and Chris Darden are no longer L.A. Deputy District Attorneys.  And Judge Lance Ito is unlikely to preside.  

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Here is a look at the evidence, its admissibility, and Durst’s ultra-slick (if not unprincipled) “dream team.”   

The Misspelled Letters

Berman’s killer sends a letter to police telling them where to find the “cadaver”.  The lettering is in block handwriting with the word “Beverley” misspelled in the Beverly Hills address.  Police place Durst in California at the time of the murder, but they are unable to connect him to the letter.        

Fast forward a decade.  A relative of Berman alerts the HBO filmmakers to a letter discovered among the deceased’s possessions long stored in a box.  It is a handwritten note from Durst to Berman before her murder with the same block lettering and, once again, “Beverley” misspelled.  A forensic document examiner compares both letters and concludes they are “unique to one person and only one person”, meaning Robert Durst.  It is corroborated by other handwriting of Durst dug up by the documentarians.       

How did L.A. police manage to miss this obvious clue when searching Berman’s home where she was murdered?  Incompetence might be one obvious answer.  

Armed with this “smoking gun” evidence, Jarecki confronts Durst with both letters on camera during a sit down interview.  The look of shock and horror on Durst’s face is  enough to convict him.  Further questioning only makes it worse.  When the two versions of “Beverley Hills” are juxtaposed on a single sheet of paper and shown to Durst, he cannot distinguish the killer’s writing from his own.  It is a brilliant stroke of legal “gotcha”.                  

The Chilling Bathroom Confession

Visibly shaken and dazed, Durst retreats to a nearby bathroom without taking off his microphone.  It is there, he has the creepy conversation with himself.  An eerie confrontation in the mirror with a killer who has caught himself in a tangled web of deceit:

“There it is.  You’re caught.  You’re right, of course.  But you can’t imagine.  Arrest him.  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.”

The camera then fades to black.
         
Admissible Evidence At Trial?     

The short answer is yes.  First, the Durst letter.   As long as prosecutors can prove it was sitting in a box since Berman was murdered and was not tampered with, they will establish a valid “chain of custody” required for admissible evidence.  

Defense lawyers will object and suggest Durst’s personal correspondence was either fabricated by some nefarious person or otherwise tampered with.  But the postmark on the envelope and paper analysis should be sufficient to establish its authenticity and admissibility.

Second, the bathroom confession.  It is an out of court statement and thus hearsay, but it falls under two related exceptions to the hearsay rule called “spontaneous declaration” and “admission against interest”.  In other words, it has the indicia of reliability because it was both spontaneous and incriminating.  Thus, it is admissible.  

Defense lawyers will claim that their client’s expectation of privacy in a bathroom was violated.  But that dog won’t hunt.  Why?  Because privacy rights derive  from the Fourth Amendment prohibition against unreasonable searches and seizures conducted by the government.   The government was not acting here.  

Durst’s lawyers will inevitably argue that the filmmakers were working in concert with police and/or prosecutors and, as such, were acting as an arm of the government.  But the facts show otherwise. Jerecki and Smerling did not even realize what was on the bathroom tape recording until an editor discovered it two years later while digesting the voluminous material.  Only thereafter was law enforcement notified.    

What is legally compelling is that Durst consented to being interviewed.  He agreed to wear a microphone and have his words recorded.  He knew he was wearing a microphone when he went to the bathroom.  Claiming he forgot it was hanging on his lapel is not a winning excuse in a court of law.  

The trickier part of Durst’s confession is the last sentence, “Killed them all, of course.”  The trial judge may strike those last few words because they appear to included killings other than Berman’s.  Unless a pattern can be shown, evidence of prior crimes are prejudicial and normally inadmissible, especially where the defendant has been acquitted.     

The “Dream Team” Redux        
 
If you’re rich like Durst, you can afford a “dream team” of crack attorneys to snooker the jury.  And that’s just what they did in Texas in 2003.    

While hiding out from New York prosecutors who wanted to question Durst for the disappearance and presumed murder of his wife, he posed as a mute woman in Galveston.  Perhaps because his neighbor caught on, Durst killed him, cut up his body, stuffed the parts in plastic bags, and disposed of it all in Galveston Bay like yesterday’s garbage.  

So how do you chop up a body and get away with murder?  Hire Dick DeGuerin, Michael Ramsey and Chip Lewis –the best defense team money can buy.  In a recorded jailhouse conversation, Durst talks about the $ 1.8 million dollars he’s paying them and then says, “And God, I hope it gets me acquitted”.   It did.  But hey… if you’re a multimillionaire, what’s a couple “rocks” if you can hustle a get-outta-jail free card?    

Just how the dream team managed it may shake your faith in the American justice system and its stewards of honesty and integrity.  As Jerecki explores the defense strategy he reminds Durst, “Certainly you’ve said to me that you did lie to the jury in Galveston –that your lawyer encouraged you to.”  What?  

Durst then spends the next few minutes backpedaling, while eventually settling on the excuse that his attorneys suggested he did not have to tell the “whole” truth to the jury.  In the end, the jury gobbled up a seemingly preposterous claim of self-defense and accidental death.  Durst walked.  Which just goes to show that you can never underestimate the gullibility of jurors.  

 

Maybe Durst is lying about his lawyers telling him to lie.  But maybe not.  If you have any doubt, consider Lewis’s smug boast about how the defense team conjured up a villain in Jeanine Pirro (then Westchester County, New York, District Attorney, and now a Fox News Host) to distract the jury:  

“It was very easy for us to make her the enemy.  We kinda created this mythical character in Jeanine Pirro.  And we took liberty with how directly she was involved in that pursuit of Bob.  The jury ate that one up.”                       
    
If you’re a lawyer with any semblance of pride in your profession, it makes you want to go take a shower.  

It looks like most of Durst’s “dream team” will reunite in Los Angeles to once again defend their client and empty his bank account by a few zeros.  Expect them to dance the same “poor little rich boy” routine which worked so well in Galveston.  Of course, they’ll invent new villains to blame:  the HBO filmmakers, the LAPD, the mob and the bogeyman.  They’ll argue that Durst’s bathroom confession was no confession at all.  Just the fantasy musings of an autistic client who has the persistent bad luck of hanging around people who die mysteriously and violently.     

I wouldn’t be surprised if they claim Berman shot herself in the back of the head, then calmly disposed of the gun afterwards.  With any luck, they’ll get the same jurors who were seated in the O. J. trial.    

I can hear the words of Judge Ito’s clerk echoing all over again.  “Not Guilty.”    

Gregg Jarrett is a Fox News Anchor and former defense attorney.