This is the fifth 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 NelsonWhile Robert Durst Flips Through PhotosRobert Durst Fades Away, and Robert Durst and the Inequity of Judicial Time.

Robert Durst admitted that he cut up his neighbor’s body and threw it in Galveston Bay. And yet a Texas jury acquitted him of murder. Durst has a habit of ignoring his attorneys’ guidance and engaging with people who suspect he was involved in other homicides. These are the elements that made the HBO documentary series The Jinx a mega hit.

And so it is no surprise that the Los Angeles trial of Durst for the murder of Susan Berman is shaping up to be a massive media event. Reporters populate the gallery for every pretrial hearing. At CRIME STORY, we have published four stories prior to this one (see above for links), and they are among our most read pieces. The public’s fascination with the case is understandable. But what, if anything, can this case teach us about the criminal legal process?

The trial is instructive not because of its thorough examination of 4th, 5th, and 6th amendment rights — though that is interesting. Nor is it instructive because of the unprecedented arguments that are being considered in the latest, September 9, hearings questioning whether a team of documentary filmmakers should be considered agents of law enforcement and as such violated Mr. Durst’s constitutional rights. Rather, The People v. Durst is most instructive because of how different it is from the way the process works for ordinary people.

In other words, the trial is educational in its contrasts with the realities of the criminal legal process in Los Angeles. In previous articles, we have observed the trial’s distinctiveness in the following ways: the effect that resources can have in the adjudication of a defendant’s case; the time that the defendant has to make their case, and the opportunity for a prosecutor to accurately and persuasively argue that the defendant has received the benefit of every constitutional protection imaginable.

Today, we examine the uniqueness of the advocacy of Durst attorney Chip Lewis. I don’t know Lewis personally, and though I worked at HBO and I know Andrew Jarecki and Marc Smerling professionally, I did not work on The Jinx.

Likewise I do not have any special insight into the inner lives of other attorneys that I have observed in the Los Angeles courts. What you are about to read are impressions based on a lifetime of experience gleaning subtext from watching people tell stories.

Lewis strikes me as a melancholy litigation warrior. His demeanor and spirit present a marked contrast to his adversary in this trial, prosecutor John Lewin. Lewin, a dogged advocate on behalf of the People of California, has become a specialist in prosecuting cold cases. As such, he appears to be quarantined from the ordinary duties of LA prosecutors, which mainly consist of stacking charges against defendants and leveraging those charges into plea bargain deals. When working a cold case, Lewin’s mission is to find justice for victims and their families who have waited decades for closure in their tragedies.

Lewis, on the other hand, began his career as a prosecutor, but transitioned into criminal defense work, and has made a name for himself by developing narratives that present his clients’ adversaries as deeply compromised.

Lewis also stands in marked contrast with other defense attorneys that I have observed. For example, Public Defender Brady Sullivan and Alternate Public Defender Aronda Hurst seem driven by a devotion to public service. Bar panel attorney Dale Rubin and Lewis’s co-counsel David Chesnoff, seem driven by a deeply personal, competitive devotion to affording their clients the best possible defense irrespective of guilt or innocence. They seem to take each set-back as a personal affront.

Lewis, by contrast, strikes me as the romanticized version of a Confederate General, who senses that he’s on the losing side of the fight but is compelled by honor and duty and billable hours to do his best to carry the battle forward.

Lewis has a football lineman’s physique and a beard and thinning hair which are considerably greyer than when he first appeared in The Jinx. Dressed in a Rebel grey suit and grey tie flecked with butterflies, his cowboy hat resting on the bailiff’s table behind him, Lewis stands on behalf of his client. 

As I mentioned above, the argument in today’s hearing is about whether the filmmakers of The Jinx were “agents of law enforcement,” namely the Los Angeles District Attorney’s office, when they recorded interviews and gathered evidence in making their documentary series. 

Lewis and his co-counsels seem to be trying to replicate a strategy that worked for Durst in Texas, namely to paint the prosecutor and some New York media personalities as conspiring to violate their client’s rights.

Judge Mark Windham is initially reluctant to hear this issue because he assesses that it is not “ripe” at the moment. In other words, this kind of ruling usually corresponds to a motion to compel the production of specific evidence. In this case, the filmmakers would resist producing that evidence based upon journalist’s privilege. If the defense can prove that they are agents of law-enforcement, that would allow them to pierce the journalist’s privilege and acquire the evidence which they seek.

However, since discovery is ongoing and the defense does not yet know what evidence they would like to subpoena, Windham initially seems inclined to put off making a decision about the “agency” question until there is an actual reason to make that determination.

Lewis seems happy to postpone making his arguments until there is specific evidence that he is trying to get or quash AND until he is closer to a specific reason to put the filmmakers on the witness stand. Victor Kovner, arguing on behalf of the filmmakers, seems resigned to postponing the argument even though he has flown across the country at his clients’ expense to argue this motion. 

Prosecutor John Lewin, however, pleads with Judge Windham to reconsider this determination. As in earlier hearings (hyperlink), Windham reprises an impatient tone towards Lewin, again pointing out that he is denying the defense’s motion, and Lewin seems to be arguing against his own victory.

WINDHAM: 

ALRIGHT. YOU ARE AGAIN ADDRESSING THE COURT ON AN ISSUE THAT YOU HAVE WON. SO I WILL GIVE YOU AMPLE OPPORTUNITY TO REVERSE MY OPINION.

There is laughter from the defense side of the courtroom. Like last time, Lewin absorbs Judge Windham‘s snark, and observes:

LEWIN: 

YOUR HONOR, I HAVEN’T WON BECAUSE YOU HAVEN’T DECIDED ANYTHING. MR. LEWIS, NOT ONLY DO I RESPECT HIM BUT HE’S A FRIEND OF MINE. A GOOD FRIEND. BUT IN THE END I STILL HAVE TO MAKE THE ARGUMENT THAT… THE COURT HAS THE OPPORTUNITY TO SAY RIGHT NOW THAT A PREREQUISITE TO THE INVOCATION OF THE SHIELD (AGAINST SELF INCRIMINATING STATEMENTS THAT DURST MADE TO THE PRODUCERS OF THE JINX) IS THAT [THE COURT] WOULD HAVE TO FIND THAT [THE FILMMAKERS] WERE ACTING AS AGENTS OF THE GOVERNMENT. YOUR HONOR, THEY FILED A MOTION. THEIR MOTION DOESN’T HAVE IT. IT’S NOT EVEN CLOSE. IT DOESN’T MAKE IT FACTUALLY.  IT DOESN’T MAKE IT LEGALLY. IT DOESN’T MAKE IT LOGICALLY.

Lewin points out that the court has an opportunity to make a finding on the defense’s motion to declare that the filmmakers were agents of law enforcement. If the judge does not rule on the merits of this issue today, Lewin argues, a bottleneck of individual motions could develop based on individual pieces of evidence which could ultimately jeopardize the January 13 trial start date that Judge Windham has insisted upon keeping. 

Windham absorbs Lewin’s observation, and asks Kovner and Lewis some questions. Lewis, in his responses, applauds Windham’s instinct that it would be far more efficient to wait until there are specific items to argue over, and they can put the filmmakers on the witness stand to more fully vet these questions.

Windham then calls a lunch recess.

After lunch, Windham announces that he has decided to hear arguments today on the “agency question“ after all, treating the defense motion to intervene — which Windham found to have no procedural foundation — as a motion to quash evidence and compel discovery of evidence held by the filmmakers.

If Chip Lewis is somewhat deflated by his inability to put off this proceeding, he hides it behind his litigation-warrior mask and begins to make his arguments.

Lewis’s aim is to establish that filmmakers Andrew Jarecki and Marc Smerling were in fact agents of John Lewin and the Los Angeles prosecutor’s office, and that the prosecutor used these “agents” to violate Durst’s constitutional rights. If he can establish a constitutional violation, then the Judge Windham will have no choice but to exclude devastating evidence like Durst’s unguarded recorded comments to himself, made while in a bathroom on a mic he apparently forgot he was wearing:   

ROBERT DURST [FROM THE JINX]:

“[Unintelligible] I don’t know what you expected to get. I don’t know what’s in the house. Oh, I want this. Killed them all, of course. [Unintelligible] I want to do something new. There’s nothing new about that. [Inaudible – possibly “disaster.”] He was right. I was wrong. The burping. I’m having difficulty with the question. What the hell did I do?”

Lewis lays out the factors used to determine whether an agency relationship exists between an individual or individuals and the government: Did the government know of and allow the third party’s activities or investigation? Did the third party intend to assist law enforcement or did the third party have another motive?

Lewis uses comments that Andrew Jarecki and Marc Smerling made in various press interviews to try to prove that the filmmaker’s primary motive became “seeing Robert Durst prosecuted.” He also suggests that the filmmakers rearranged the order of Mr. Durst’s recorded comments in the final film to make them sound more incriminating in service of that same motive.

He also describes some of the ways in which Lewin interacted with the filmmakers, implying that the prosecutor’s suggestive interaction was actually an implicit, subtle and premeditated form of direction and control.

After Lewis finishes his argument, he returns to the defense table where Durst has been sitting for the past half hour in a meditative trance with this left hand — banded with a “fall risk” bracelet — hovering near his brow. Lewis interrupts Durst’s trance by squeezing his shoulder, a very rare interaction between Durst and anyone on his defense team. Durst offers his hand to Lewis in apparent appreciation of the advocacy and Lewis gives Durst’s hand a “you’re welcome” shake.

Kovner, on behalf of the filmmakers, respond to Lewis’s argument, drawing the court’s focus to the key issues of agency and questioning whether there was any “government control” or “direction” of the filmmaker’s actions.

Then Lewin returns.

LEWIN:

MR. LEWIS, WHO I DO CONSIDER A FRIEND, HAS A WAY OF…  ALL OF A SUDDEN YOU LOOK DOWN AND YOU GO: “LOOK I’M BLEEDING. HE HAS STABBED ME IN THE NICEST WAY POSSIBLE AND YET I’M BLEEDING HEAVILY…” I DID NOTICE THAT MR. LEWIS TOOK A FEW SHOTS THERE. 

After ruminating about the shots that Lewis took at him, Lewin zeroes in on the same argument that Kovner just made; that Lewis mistakes contact for agency.

Lewis gets one more opportunity to ask the judge to put the filmmakers on the stand in order to get more information about the nature of the relationship between them and the prosecutors office to determine whether in fact they did begin to act at the direction of the prosecutors.

Judge Windham calls for a 10 minute break.

It occurs to me during the recess that the other reason that Lewis wants to put the filmmakers on the stand is so that he can divert attention from his client and get a jury to focus on the behavior of someone else, much as he and his co-counsel made the “transgressions” of the Galveston prosecutor and the New York media the center of Durst’s Texas Murder trial.

After taking a ten minute break, Judge Windham returns and determines that an agency relationship did not exist between the filmmakers and the prosecutors, and, on that basis, he denies defense’s motion to compel the production of evidence that would otherwise be protected by journalist’s privilege, and their motion to quash any evidence dug up by the filmmakers that the prosecutor might use.

It is now about 3 hours since these arguments began. Lewis’s butterfly speckled tie is now loosened and his shirt collar is unbuttoned. He stoically listens to the decision. He does not appear to take it personally.

Lewis’s stoicism by itself is not unique to an LA courtroom. What feels unique is the combination of litigation talent, commitment to mission, and resources expended on behalf of a client whose own actions offer the most damning evidence against himself.

After Windham renders his decision, Lewis announces that he has to get on a plane, and before his colleagues take over the arguments on other matters, he resolves some scheduling questions, grabs his cowboy hat off the bailiff’s desk and then leaves the court. As he does, I am oddly reminded of the words of Robert E. Lee in his farewell address to the Confederate troops at the end of the Civil War: “You will take with you the satisfaction that proceeds from the consciousness of duty faithfully performed.” Lee’s duty was performed on behalf of the slave-holding Confederacy. Lewis’s duty was performed on behalf of Robert Durst.