Robert Durst. Photo by Courtesy of HBO
Prosecutors in the murder case against New York real estate scion Robert Durst will ask a judge Friday to allow a group of witnesses to be questioned early, citing a concern that “witnesses might be killed” before they can testify.
Durst’s attorneys have objected to the prosecution’s request, writing in court papers that “there is no evidence that Mr. Durst has tried to have any witnesses killed” and that “there is simply no factual basis upon which one could claim that Mr. Durst has the ability to harm anyone.”
His defense team wrote that the 73-year-old Durst has “health problems” and is behind bars, with his calls monitored.
Durst’s lawyers noted that the prosecution has only identified two of the witnesses they intend to question and that prosecutors want to delay turning over the names of the other witnesses until a week or two before the proposed questioning.
Durst is charged in the December 2000 killing of his friend, Susan Berman, in her Benedict Canyon home. Prosecutors say he killed her because authorities in New York’s Westchester County were about to interview her as part of a reopened investigation into the 1982 disappearance of his first wife, Kathleen “Kathie” Durst.
Prosecutors say Durst has a history of violence against witnesses, alleging he killed a neighbor, Morris Black, in 2001 in Galveston, Texas, where he was “living under an assumed name and pretended to be a mute woman.”
Prosecutors argued in a court document filed last week that Black was killed because he found out Durst was not really a mute woman, and Durst responded “by shooting him in the back of the head” and dismembering his body. Durst was tried for that killing but acquitted.
“Defendant is a menace to society,” prosecutors wrote in their latest filing. “On three separate occasions, he has attempted to flee from public accusations, government investigations or formal charges in connection with the deaths of three people. During each flight, he has demonstrated a willingness to use deadly force to escape justice — killing two people and arming himself with deadly weapons to kill anyone who stood in his way of escape.”
The proposed questioning — called a conditional exam — would allow attorneys from both sides to question witnesses in advance of a hearing in which a judge would determine if there is enough evidence to require Durst to stand trial for Berman’s killing.
Deputy District Attorney John Lewin told Los Angeles Superior Court Judge Mark Windham at a hearing last month that the testimony would be videotaped and only used in subsequent court sessions if a witness were to die or disappear before being called to testify.
Prosecutors wrote that such examinations exist to “preserve critical evidence” and allow “each side to present evidence at trial that is necessary to fully inform the jury’s decision.”
“This is especially true where, as here, there is a unique danger that witnesses might be killed and evidence forever lost,” the prosecutors wrote in their filing. “Unable to dispute this simple truth, the defense has instead argued that defendant Robert Durst … poses no danger to witnesses because he is `frail,’ `in a wheelchair,’ and unable `to harm anyone.’ This argument flies in the face of reality, as defendant’s past conduct demonstrates that he continues to pose an ever-present danger to many witnesses in this case.”
Prosecutors wrote that they want to do early questioning of four witnesses, including two people whose identities have not yet been disclosed to the defense. The defense countered that the prosecution is “desirous of pursuing conditional examinations of approximately 10 witnesses” — only two of whom it says have been identified by the prosecution.
Defense attorneys contend it is “inconceivable that the defense could be properly prepared to cross-examine these witnesses” in light of the “extraordinary amount” of material they’ve been given by the prosecution about the case.
One of the four witnesses prosecutors want to question in “conditional examinations” is Dr. Albert Kuperman, who is believed to have spoken to Kathie Durst around the time of her disappearance.
“Here, the people are concealing the identities of numerous `secret’ witnesses,” the defense wrote, adding that there is “no basis to shield this information as Mr. Durst is not a threat to any witness.”
The defense is also asking the judge to order the prosecution to disclose all of the witnesses it wants to examine — along with providing information about them — before seeking to conditionally examine them to allow the defense sufficient time to prepare.
Durst has denied any involvement in Berman’s killing. The murder charge includes the special circumstance allegations of murder of a witness and murder while lying in wait, along with gun use allegations. But a prosecutor said in court that the District Attorney’s Office does not plan to seek the death penalty.
Durst was arrested March 14, 2015, in a New Orleans hotel room, hours before the airing of the final episode of the HBO documentary series “The Jinx: The Life and Deaths of Robert Durst,” which examined the disappearance of his wife in 1982 and the killings of Berman and Black.
On the documentary series finale, which aired the day after his arrest, Durst was caught on microphone saying to himself, “Killed them all, of course.” He also was caught on microphone saying, “There it is, you’re caught,” and “What a disaster.”
During a jailhouse interview with Lewin, Durst said he was “on meth” while the documentary was being filmed and that he didn’t heed his attorneys’ advice not to be interviewed for the series.
Durst was indicted in April 2015 in U.S. District Court in Louisiana on a charge of being a felon in possession of a firearm. He pleaded guilty to that charge and was sentenced to seven years in federal prison before being brought to Los Angeles in connection with the murder case.
He has been long estranged from his real-estate-rich family, known for ownership of a series of New York City skyscrapers — including an investment in the World Trade Center. Durst 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.
—City News Service
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