This is the fourth in a series of articles about the hearings before the murder trial of Robert Durst. You may click on the hyperlinked titles to read Two Hearings: Robert Durst and Armon Nelson, While Robert Durst Flips Through Photos and Robert Durst Fades Away.
A video camera operator for Dan Abrams’ website, Law & Crime, is setting up in the Department 81 jury seating area, training his lens on the empty chair across the room where the defendant will sit. The going rate for a video operator is $400 per day. In the gallery, there’s an unusual bustle, certainly for this early on a Tuesday morning in September. Two NBC News production assistants and their field producer slump in the back row, pens scribbling notes, laptop keys clicking softly, and there’s a constant stream of reporters and other onlookers pushing through the courtroom door and taking seats. It is difficult to estimate the wage and hour costs of the media crowding into the courtroom, but there is no doubt as to the reason they are here — Robert Durst is due in court today and Durst is a valuable commodity.
Even the usually unflappable Judge Mark E. Windham seems to feel the pressure. He sweeps in from chambers and turns to face the US flag. The bailiff scrambles to his feet and recites a brief invocation: “Please face the flag of our nation and recognize the principles for which it stands.” The assembled stand, oblige, and then retake their seats. Brisk and efficient in affect, Windham seems especially focused this particular morning — rather than sitting, he stands over his monitor, peering down at it. Before Durst, there’s other business on the docket to attend to. Swiftly.
She emerges from the in-custody doorway in her County scrubs, manacled, her long hair stringy and dirty. Charged almost a year ago with multiple counts of driving without a license, carjacking, and assault with a deadly weapon, Miranda Jacobs (a pseudonym) pleaded nolo contendere to the final charge in January, 2019; the remaining charges against her were subsequently dismissed and she was put on probation. Having violated the terms of that probation in mid-August, Jacobs was picked up and remanded to County jail. She now finds herself back in Department 81 for a bench warrant hearing. She moves tentatively — whether the result of medication or the shock of new surroundings is unclear.
But Windham is pushing things along. Jacobs has barely taken her seat beside Deputy Public Defender Angelo Tarello (a dead-ringer for actor Bobby Cannavale, down to the five o’clock shadow) when the judge schedules a follow-up probation revocation hearing for mid-October. Windham asks Jacobs if she agrees to the scheduling. Jacobs seems confused but Tarello urges her along. “Just say yes,” he whispers. Jacobs stutters, confused, “Uh… yes?” From start to finish, maybe 50 seconds have passed. Windham’s already handed Jacobs’ case file to his clerk when the defendant clocks what’s just happened. Her alarmed reaction looks a lot like whiplash.
“Judge,” she squeaks. “Wait! Can’t we do it earlier?”
Windham bustles back to his chambers without responding. Targello also acts like he’s got other places to be. Rising, he hisses an impatient explanation to Jacobs. This is done and it’s time to go. Jacobs’ slightly stunned expression hasn’t left her face as she is ushered out of the courtroom.
Time in our legal system is inextricably intertwined with the reality of the leverage that financial resources offer. A citizen has a Sixth Amendment right to a speedy trial. That citizen is also entitled to both the opportunity to plan a proper and adequate defense and the time required by counsel to mount that defense. But the capacity to exploit that time too often comes down to money. Simply put: money buys time. And if this truth requires any sort of reinforcement, it’s provided by the back-to-back hearings of Miranda Jacobs and Robert Durst on this September morning. They are a quick study in how time and money are spent.
The build-up to a full day of Durst hearings continues. The gallery continues to fill with attorneys and observers and the expectant buzz intensifies. Durst’s legal team clusters on the left side of the room in all their sartorial splendor — Dick DeGuerin, natty in an elegant suit and horn-rimmed spectacles; Houston-based Chip B. Lewis; the ever garrulous David Chesnoff, curly hair glistening with product; and the saturnine Donald M. Re. As noted in Crime Story’s first article about the hearings preceding Robert Durst’s trial for the murder of Susan Berman, there’s a frat house quality to the defense team’s public image. A well-heeled frat house: a cocktail napkin calculation has the accumulated expertise gathered here running at thousands of dollars per hour. Still, Durst’s defense team is doing its best to project nonchalance. Chesnoff fist-bumps the bailiff, then turns to do the same with a barely comprehending DeGuerin. When the increasingly frail Robert Durst is ushered in and sits beside De Guerin, the team settles and focuses.
There’s a similar, acute self-awareness on the People’s side of the courtroom. Deputy District Attorney John Lewin is accompanied by Deputy District Attorneys Habib Balian, Eugene Miyata and Ethan Milius, as well as two LAPD detectives and an attorney representing the California Attorney General’s office. In the gallery directly behind them is a cheering section of assorted law clerks, observing deputy district attorneys, and Lewin’s wife.
Finally, minutes after 10 am, the daylong hearings kick off with a guest appearance by Superior Court Judge Upinder S. Kalra, sitting in to rule on a 995 motion filed by the defense. A 995 motion requests that a judge dismiss an allegation, a sentencing enhancement, or a special circumstance allegation based on the transcript from the preliminary hearing. There’s something almost luxurious about this hearing-before-the-hearing. Kalra, shaved head gleaming, leans into the unmistakable frisson of the morning. “If counsel could make their appearances,” he urges, taking his seat. “Because I’m not familiar with all the players here.” Players…
Kalra is bemused as he sums up the matter before him. “So principally, the defense is making two distinct arguments. They’re asserting that incompetent evidence — not competent evidence — was utilized by the People and the preliminary hearing magistrate in supporting the holding order. The incompent evidence that the defense principally complains about is that the magistrate relied upon conditional examination evidence and the magistrate relied on 1390 evidence, known as forfeiture by wrongdoing. That evidence is not competent and that is the base of the support for the holding order. And that is one principal ground. The other ground is that there is insufficient evidence for the lying in wait special circumstance. The People’s response is, there was competent evidence irrespective of 1390, that is, forfeiture by wrongdoing and the conditional exam, so regardless of the People’s position there was competent evidence. Moreover, under Cage, the lying in wait special circumstance was established. The reply indicates that the People in their moving papers conflated the inadmissable evidence, according to the defense, the incompetent evidence, in establishing that there was a sufficient basis for the holding.” As if wearied by the strain of so much listening, Durst gingerly removes his glasses and presses the palms of his hands against his eyes.
Donald Re rises and intones the defense’s first monologue, as it were — he argues that there is no forensic or eyewitness evidence tying his client to the murder scene. “What you have are random statements that are made here and there… which are generally speaking, many many years old and are the kinds of things that apparently a lot of them were never reported to the police before… We have a situation in which, I don’t believe that the other evidence bears credibility.”
Nodding, Kalra dons his readers. “One other question I have for you if you’d like to address… You cited some cases… they’re a little bit older than I am… from the ‘50s… you didn’t address Cage. 2015. The People did. Would you like to address Cage?”
A California Supreme Court decision from 2015, People v. Cage ruled that when the defendant appeared at the murder victim’s doorway carrying a basket of dirty laundry with a shotgun concealed in it, this was sufficient evidence of the defendant’s “insidious” intent to qualify as “lying in wait.” The physical circumstances of Cage — an unsuspecting victim, shot in her own home by an acquaintance — eerily echo the People’s case against Robert Durst and the murder of Susan Berman.
Re declines the Judge’s offer. “No, I would not. I’m going to submit that.” As in: later. As in further paperwork and more resources brought to bear. Time here is an ally, a weapon to be wielded strategically.
Kalra whisks off his readers and beams. Turning to the People, Kalra paraphrases Re’s argument and asks, “What do you say to that?”
Lewin is a restless, and relentless, speaker — he shifts his weight, squints, and curls his lips into something between a grin and a grimace. Later in the day, poised to make what promised to be a long winded rebuttal, Lewin will be warned by Judge Windham to make his argument “succinctly.”
“I’ll start with the first point,” Lewin commences. “I’ve been doing this job… not as long as Mr. Re, but twenty-five years. Done a lot of homicide trials, a lot of preliminary hearings, seen a lot of them, etcetera. I believe that the amount of evidence put on at this preliminary hearing is probably more evidence than has been put on at any murder case that I can remember happening in Los Angeles County. Admissible evidence. And the idea that somehow there was faulty evidence, inadmissible evidence, lack of evidence, just doesn’t work.” Lewin declares that Berman’s murder is a “classic witness-killing case,” arguing that Durst confessed to Berman’s murder at least twice — once during the filming of HBO’s documentary series The Jinx and once to Lewin and two LAPD detectives in New Orleans.
Relishing the moment, the attention, the sheer ticking-clock reality of it all, Lewin builds to a finish. Referring to the New Orleans interview, Lewin notes, “It’s important to remember that during that interview, the defendant himself brings up the idea of, in essence, well, what can you do for me if I tell you what you want to know?… You can’t get stronger circumstantial evidence than when you have someone who’s accused of commiting a murder and instead of saying ‘I didn’t do that,’ ‘I can’t tell you anything,’ ‘How would you expect me to give that information’… when the response is, ‘Well, I don’t know if I want to talk about that part’ or ‘I don’t really want to go through that’… Not ‘I can’t do it’ or ‘If I do that, I’ll basically be pleading guilty.’ Your Honor, that’s an admission any way you shape it.”
Studying the prosecutor from across the room, Durst’s expression is oddly detached. Crime Story has reported on Durst’s evident frailty and wandering attention; neither condition has improved. He looks just this side of puzzled — as if caught in an out-of-body experience, as if what he’s hearing must be about someone else entirely. As if these arguments are for someone else’s pleasure. But he is ostensibly the focus of all attention here, the reluctant star and producer of this particular show.
Kalra ultimately dismisses the defense’s motion, but commends counsel as he stands to leave. “I appreciate the lawyering,” he acknowledges.
Nonchalance forgotten, DeGuerin and Company droop in their bespoke suits. It’s still not even lunchtime and they’ve been handed a setback.
It’s going to be a long — but billable — day.