This is the sixth 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, Robert Durst and the Inequity of Judicial Time, and Robert Durst’s Warrior in Court.

It’s mid-morning in Department 81, Airport Courthouse, and Deputy District Attorney John Lewin has me locked in a bearhug.

Then again, maybe it’s more of an awkward embrace, a clumsy blend of affection and aggression? As I observe Lewin’s courtroom modus operandi more and more, it’s clear that this is the emotional terrain he prowls restlessly. Lewin is a live wire. Later this same day, I’ll watch as he crosses the gallery, leans over a row of seats and confronts Durst crony and potential witness Douglas Oliver. As always, alternating sweet and sour, good cop/bad cop with scarcely a hiccup between registers. Escaping with just a bearhug, I conclude, is a good thing.

Mid-clinch, Lewin tells me that he’s familiar with CRIME STORY’S coverage of the Durst proceedings and thinks some of it is “pretty funny.” Not the reaction I imagined, but at least he’s reading us. In retrospect, I now interpret his hug to be both appreciative and vaguely intimidating. Again, that’s a sleight-of-hand the emotionally ambidextrous Lewin can conjure up on the fly. Letting John be John, Deputy DA Habib Balian (who, contrary to first impressions, is neither older nor bespectacled) looks on indulgently until Lewin releases me. Our brief but charged intimacy concluded, we exchange parting pleasantries and the People edge away for a pre-hearing huddle.

It’s a head-scratcher, to be whip-lashed from observer to participant and then back again. To be physically pulled into the story. But this is the conceptually-ambiguous territory occupied by the now almost-monthly hearings leading up to the trial of Robert Durst for the murder of Susan Berman.  

In previous articles, CRIME STORY has examined the differing styles of the opposing legal teams; Durst’s increasing frailty; and the millions of dollars and hundreds of man-hours expended to bring Durst to justice. Today, we zero in on the fluid relationship between criminal justice and the media — which is CRIME STORY’s sandbox, after all.

Today’s hearing concerns two defense motions: a motion to compel discovery from a third party and a motion to permit the testimony of outside handwriting experts. Present for the defense are attorneys Chip Lewis, who will argue the first motion; David Z. Chesnoff, Donald M. Re and Catherine “Cat” Baen, of counsel to DeGuerin & Dickson. Missing for the moment, however, is their client. Has Durst been delayed because of the fires raging in the suburbs to the north? Unlikely: he’s coming from the Twin Towers, which are downtown, miles away from the fires. Someone whispers that the Sheriff’s Department misplaced Durst’s pants and his shirt. So act of God? Or wardrobe malfunction?  

Chip Lewis occupies himself at the lectern, studying his papers. Lewin, as mentioned, uses the delay to approach Doug Oliver and an associate. When he asks them to identify themselves, both men smirk. It’s intense and toxic, charged with the electricity you feel right before a bar fight breaks out. Frustrated, Lewin focuses on the associate. “I know who he is,” nodding towards the vest-and-ascot clad Oliver, “but who are you?”

The blood rushes to the associate’s face. After a brief staredown, he hits on a passive aggressive response. “I’m nobody.” Tamping down his irritation, Lewin vows to bring Oliver & Co. to Judge Mark Windham’s attention and returns to his side of the courtroom. He will revisit this matter later in the day, requesting that Judge Windham order the New York-based Oliver to be “on-call” once the trial begins. Windham accedes. Lewin may not be patient, but he is persistent. It’s not until very late in the morning, close to the lunch break, when Durst finally makes his now-familiar shaky entrance — looking for all the world like a man unused to the pull of gravity.

“As I was getting packed up to come out here, one of my boys was helping me and he asked me what this hearing was about… and I told him. And he saw my binder here and asked, ‘Can I read some of it?’ Absolutely.”

Chip Lewis, Durst’s melancholy warrior, is relating an earlier conversation with his adolescent son. Lewis addresses the court today in full Atticus Finch mode, mixing homespun colloquialisms with appeals to “fundamental fairness.” Since he’s seeking access to the recorded and unrecorded interviews obtained by Hit The Ground Running (HTGR) – the team that made the documentary series The Jinx – Lewis’ rhetorical stance is intended to challenge the common sense of the Court, if not its legal responsibilities. The Socratic dialogue with his son is part and parcel of this strategy. 

“So he started reading the papers of Hit the Ground Running and he asked me a few questions… ‘What does materiality mean?’ I did my best to explain it to a twelve year old. ‘Well, what about relevance?’ Again, I tried to. He went back to the brief and read a little bit more… and he posed a question that I think encapsulates what we are asking about better than anybody. He said, ‘Dad, how can you tell if the information is relevant if they won’t tell you what they have?’ Simple enough for a twelve year old to get it.”

Simple enough. It’s essential that Lewis begins his argument this way, because all too soon it will whipsaw out into the “meta.” Lewis argues that the primary justification for Durst’s indictment for the murder of Susan Berman rests not with Durst, but with Hit the Ground Running and their desire to promote their film project. 

“They’re not a true third party in the sense of many of the cases your Honor has studied,” Lewis urges. “This is a far different kettle of fish. They are the reason we’re here. Their work is the only reason we’re here.” There’s something off about this, something tail-wagging-the-dog. I’m still looking up the definition of “teleological” when court is adjourned for lunch.

After the lunch break, HTGR attorney Linda Steinman rises to dismiss Lewis’ sprawling discovery request. Steinman is purposeful, all-business: “In defense counsel’s presentation, he made no mention of the cases and the legal standard…. All of these cases made very clear that there is a very high standard to be met when seeking materials from a journalist. The defendant has the burden to show a reasonable possibility that the specific information sought will materially assist the defense…” Arguing that the defense had not met this burden, she utilizes still another narrative trope in a day filled with them. “These unknown, unrecorded interviews are just a red herring.”  

Steinman continues to hack away at the theoretical tangle raised by the defense, asserting the limited role HTGR will play in the forthcoming murder trial. “It was also interesting and important that the defense has conceded that The Jinx is not going to be introduced into evidence in this case,” Steinman notes. “The Jinx is a TV show. This is a court of law and what will be admissible here is the unedited, complete bathroom confession and the other unedited tapes of Mr. Durst talking. His own words will be what’s evidence. The Jinx is irrelevant. I obviously strongly dispute the defense’s attempts to malign my clients. Both The Jinx and Capturing the Friedmans were fine works. They received many awards. But I’m not going to waste time doing that because it’s irrelevant. Those films will not be shown to the jury. They will not be eating popcorn and binge-watching them. They will be focused on the evidence.” In just a few sentences, Steinman dispatches the defense’s philosophical conceit like someone chopping down a tree.  “It was not the television show that led to Mr. Durst’s arrest, it was the evidence that [HTGR] provided to the District Attorney’s office that led to the arrest.”

Ruling, Judge Windham picks up on Steinman’s dissection of the defense’s motion. “I recognize there is a theme to the defense. That there is a media frenzy villainizing Mr. Durst and driving a rush to judgement. But again, a theme is not a defense. Now the filmmakers’ process, as you’ve described it… with editing and the creation of dramatic effect, may affect the so-called court of public opinion. But it’s not material for the evidence actually presented in the case.”

Windham is mid-sentence when Lewis rises — he has to make a flight home in order to coach a football game. Windham is understanding. “Good luck with that. What’s the team called?”

When Lewis replies, “The Bears,” the UC Berkeley-educated Windham admits that he’s more than comfortable with saying, “Go Bears!”

At which point, Chesnoff chimes in with yet another media-referential quip. “When Chip is the coach, your Honor, they’re the Bad News Bears.” 

Judge Windham will later deny the defense’s first motion.  And then the second.

The court of public opinion versus a court of law. Themes versus defense. Declaring “I’m nobody” when you are present, in the flesh, occupying a seat. Like other celebrity criminal trials before it, the murder trial of Robert Durst tests the frail boundaries between fact and fiction and teaches us, yet again, that it’s all narrative after all.

Later that day, I’m at home on my computer, watching the remainder of the pre-trial hearing on YouTube, and something strikes me. During each hearing I’ve attended, Durst writes notes, dons and removes his eyeglasses, squints at the various speakers. Occasionally, he also will turn and look directly at the camera. Today, watching from home, it’s me behind the camera, as it were. Durst looks into the camera and registers… nothing.  Not concern, curiosity, annoyance, vanity. Nothing.  

When Robert Durst looks into the camera, it’s with the shiny, blank eyes of someone staring into the void.

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