We have added a podcast reading to this story that we published last week.


John Lewin, the lead prosecutor in the trial of Robert Durst appears to be on a mission that goes beyond convicting Durst for the murder of Durst’s long-time friend Susan Berman. With his opening statement in the trial, Lewin seems to be laying the groundwork for a story that he hopes will be so compelling, with a presentation of evidence so persuasive, that he will convince the jury beyond a reasonable doubt that Robert Durst murdered THREE people (Berman, Durst’s wife Kathie and his Texas neighbor, Morris Black). In so doing, Lewin also appears to aspire to single-handedly rehabilitate the tattered national image of the Los Angeles District Attorney’s office. From the acquittal of O.J. Simpson to the mistrials of the Menendez brothers and Phil Spector, the LA DA’s office has developed a reputation for tone-deaf storytelling. Lewin has chosen to begin this long trial with an opening statement that is going into its third day. By contrast, the Defense expects that their opening statement will take substantially less than a day.

What follows is a blog discussion between members of the Crime Story team where we assess the effectiveness of Lewin’s opening statement. The participants are Sean Smith, Kary Antholis, Chris Tarricone, Karen Ann Coburn and Molly Miller.

SEAN SMITH

In Department 91, a “dark” courtroom in the Airport Courthouse set aside to accommodate overflow spectators and media from the Durst trial, the wall-mounted video monitor is trained on yet another video monitor — this one positioned behind Deputy DA John Lewin one flight down as he delivers the People’s opening statements. The “meta” implications of this incestuous media loop are well worth unpacking, because of how they coincide with Lewin’s case and the fundamental mechanics of a celebrity murder trial, circa 2020.

CHRIS TARRICONE

CRIME STORY has been allocated one seat in the courtroom for the Durst trial, and – for the opening statements – I am assigned to fill it. Upon reaching the Airport Courthouse last Wednesday, I was greeted by all of the trappings of the next great media trial. Film crews were set up across the front steps of the courthouse, aiming their cameras towards the road in anticipation of the defense team’s arrival. Up on the eighth floor, a hectic scene played out where reporters from the multitude of news conglomerates who did not have reserved seats lined up for over an hour waiting to hear their raffle numbers called. The jurors and their alternates were both present as well, most dressed much nicer than they had been during jury selection, women wearing high heels and at least one man wearing a blazer and dress pants. Judge Mark E. Windham set the tone for the significance of their work by telling these jurors that they may “write a book” about their experiences after the trial, thereby suggesting that their lives would be dramatically changed by their selection. Inside the courtroom, Judge Windham disarmed the grizzled journalists in the gallery who were new to this trial by responding with a joke to a question from prosecutor John Lewin about the possibility of dimming the lights. “In Department 81,” Windham deadpanned, “we have every modern technology but dimmers.” Chesnoff and DeGeurin seemed to seek out opportunities to make digs at the length and elaborateness of Lewin’s presentation, occasionally provoking laughs from the gallery and the jury. As for Durst? The 76-year-old alleged killer made quite a dramatic entry to the courtroom, standing still and surveying the sea of reporters with wide-eyes, almost basking in the moment. He then turned and fist-bumped DeGeurin, sending a message to the room: “Game on.”

KARY ANTHOLIS

I am out by the media trucks for the opening statement.  Every hour or so, a runner brings down video cards from the courtroom camera. A technician plays the video and audio of that card and each of the media organizations either records that feed or relays it electronically back to their respective studios. I record for Crime Story (to be used in upcoming podcasts) and I watch and listen as the video plays. As I handle those responsibilities, I hear chatter among the reporters who have come out of the courtroom and I follow the commentary on Twitter. Initially, particularly during Day 1 of Lewin’s opening statement, the commentary seems to run somewhere between critical of and bewildered by the prosecutor’s strategy.

SEAN SMITH

CRIME STORY has examined the media-conscious aspects of the Durst proceedings for almost a year now. That media-sense is baked into the prosecution’s working theory of the case. The physical evidence linking Durst to Susan’s Berman’s murder is sparse; by and large, the evidence (phone and travel records, etc.) is circumstantial. What Lewin does have at his disposal, however, is a seemingly inexhaustible tranche of self-incriminating statements made by Durst while cameras or tape recorders were rolling. The backbone of the People’s case against Durst is his string of taped confessions — his DVD commentary for the feature film All Good Things; his December 11, 12, and 13, 2010 interviews with Andrew Jarecki for The Jinx, including the “hot mic” segment; and his jailhouse interview with Lewin in New Orleans in March, 2015.  As Lewin observed on Day One of his opening, “One of the things that is going to become very clear in this case, what the evidence is going to show, is that much of the most damaging evidence is going to come directly from Mr. Durst himself, out of his own mouth. What the evidence is going to show is that in many ways, Mr. Durst will admit to things that most people would never admit to.”

KAREN ANN COBURN

Did someone use the word Circumstantial? Throughout voir dire the past two weeks, Judge Windham, John Lewin and even the defense, focused quite a bit of time redefining the term circumstantial evidence for the jury. In the absence of physical evidence, it is clearly a large part of the prosecution’s case. What they made clear – and I am sure the jury now understands – is that circumstantial evidence is really indirect evidence, and is no more or less credible than other types of evidence. Take the example of a fingerprint found on a piece of paper. Even if you did not see a person handle the paper, learning that they have left a fingerprint on the paper strongly suggests that they have touched the paper. That is circumstantial. The lawyers joked that Perry Mason gave circumstantial evidence a bad name. So yes – there is a lot of indirect evidence in this case. The judge will instruct the jury as to what rules need to be followed when considering it.

SEAN SMITH

The People and John Lewin have clearly concluded that the most compelling use of their media-heavy body of evidence is to lean into it — Durst’s inculpatory statements formed the bulk of the People’s slideshow. Two monitors, positioned at right angles to the jury box, displayed Durst in what sculptors might call “heroic” scale — dwarfing the frail 76 year old with the hearing aids huddled with his defense team. This contrast could cause jurors to feel sympathy for the aged defendant. On the other hand, it might instead elicit the sort of disdain one feels when encountering a celebrity as they go about their daily business — why do they always seem shorter and more ill-dressed and tired-looking than we imagine? The eerie timelessness of our media-captured selves versus our sagging physical reality: Durst’s outspokenness, his desire to be captured on camera over the years, has damned him again.

KAREN ANN COBURN

Sean brings up a very interesting point, which struck me as I was watching Lewin’s opening statement on Law&Crime’s YouTube channel. The video and still photographs of a young Durst are a very powerful tool that might not have been available in the past, or in the average trial today. Going in, it seemed that Durst’s current frailty would be one of the defense’s biggest assets. That is stripped away when the jury sees him, young and vigorous, on a big screen. The one shot of his and Kathie’s wedding day seemed to be up quite a bit on Day 2. I would love to know if anyone in the room had a read on how the jury responded – where their focus landed – on the screen or the defendant.

CHRIS TARRICONE

On both of the first two days, I had a good view of the jury. The jurors paid attention to the proceeding whether it was Lewin speaking or his audiovisual presentation. Their geezers rarely strayed over to the defense table. By this time, they had all spent a few days in court with Robert Durst, and had become accustomed to his unresponsive, almost withdrawn demeanor. Their attention would however be drawn towards the defense table when DeGeurin objected and initiated a shouting match with the prosecution, but rarely did any of the jurors or alternates pay much attention to the defendant.

MOLLY MILLER

Karen, you’re putting your finger on something I was thinking about as I watched from my living room/research cave: Durst as a physical presence. He’s a man with whom it’s nearly impossible to empathize. The former heir to the Durst corporation has been shrouded in wealth his entire life and has rubbed elbows with the most powerful business titans of New York City. If his lifestyle is inaccessible then his actions are even more unsettling. Durst has openly spoken about hitting his late wife, Kathie, and pulling her hair during a Christmas party. And Durst has admitted to, at the very least, dismembering the body of his Galveston neighbor and throwing the garbage-bagged human remains into the ocean. To put the jury in Durst’s shoes may be an impossible task for the defense, but if his team cannot arouse empathy they can provoke a different emotion entirely: pity. The shriveled man sits at the counsel’s table with a hearing aid and a bulge on his skull where doctors inserted a shunt to drain fluid from his brain. He has difficulty moving without an aid and when he does his steps are uncertain, his limbs turned gelatinous. One can imagine the jury wondering: is this feeble man capable of murder?

CHRIS TARRICONE

Lewin has called Durst pathetic twice. One of the things Lewin made sure to do extensively during jury selection was to explore whether the prospective jurors would tolerate his aggressive style or sympathize with the defense (or with a hostile witness) because they felt he was being rude. During Lewin’s opening, none of the jurors or alternates seemed bothered by this sort of tactic. And in fact, because Lewin did his due diligence, there were moments when some of the jurors seemed taken aback by evidence presented (including the Sareb letter and hot mic bathroom moment) . It is not at all clear what the Defense strategy will be (beyond objecting copiously so as to lay the groundwork for an appeal if necessary). But during the jury selection they did seem to lay some groundwork for a “pity narrative.” (DeGuerin referred to this strategy as “Poor little rich boy” in The Jinx.) And among the jurors that they accepted, Juror #9 said she found Durst “charming” in the Jinx! (Though that was in the context of calling him a “charming psychopath”)

SEAN SMITH

The People’s slideshow also incorporated video and audio taped testimony of various witnesses and potential witnesses, many questioned under oath by Lewin & Co. These witnesses represent a curious slice of Baby Boomer culturati — film and music producers, musicians, actors and writers, all of whom hit their stride in the last quarter of the 20th Century.  It’s arresting to see how Time treats even the most beautiful of us — the men are balding and bifocaled, the women smaller and less flamboyant than their youthful selves. Together with Durst’s youthful Summer of Love rebelliousness, the picture that emerges is of a generation past its prime, saddled with the weight of its self-indulgences.

MOLLY MILLER

Unsurprisingly Nick Chavin was featured prominently in the presentation, who Lewin underscored as “a very important witness in this case.” In video of prior testimony Chavin appeared hunched and monotone, his frame swallowed by a boxy suit. Chavin is unique in the parade of expected witnesses because he was a close friend to both Robert Durst and Susan Berman. In the late seventies Chavin was an emerging musician with hopes of being a rockstar and he developed a close bond with Berman who was working as a music reviewer. When Chavin and Berman moved to New York, Berman introduced Chavin to Durst. The young men hit it off, partying and playing the field despite the fact that Durst was married to Kathie at the time. Chavin is the hinge between the two parties, the one individual with intimate access to the victim and the accused. In the past he testified “Susan said to me specifically that Bob killed Kathie…I said, ‘How do you know?’ She said “He told me.’” In addition Chavin had an eerie dinner with Durst after Susan’s death which ended with Robert telling Chavin, “I had to. It was her or me. I had no choice.” I look forward to seeing more of him in the coming weeks.

SEAN SMITH

While always grounded in the presentation of admitted evidence (much of which was litigated over three years of pre-trial motions), the People use the technology at their disposal to maximum effect. There are split-screens, overlapping images, and animated text. Lewin & Co. also used suggestive captions. Images of the Berman crime scene, for example, were followed by a slide with the simple caption: “The motive was not robbery or burglary.”  Defense attorney Dick DeGuerin sprang to his feet to object.

DEGUERIN: EXCUSE ME, YOUR HONOR. I’M SORRY TO INTERRUPT, BUT I BELIEVE THAT WHAT’S ON THE SCREEN NOW, THE MOTIVE FOR THE MURDER WAS NOT ROBBERY OR BURGLARY, IS ARGUMENT. THAT’S NOT A STATEMENT OF FACT.

WINDHAM: LADIES AND GENTLEMEN,THE OPENING STATEMENT IS NOT MEANT TO BE TAKEN AS AN ARGUMENT. THIS IS A DESCRIPTION BY THE LAWYERS FROM EACH SIDE DURING THEIR OPENING STATEMENT OF WHAT THEY EXPECT THAT THE EVIDENCE WILL SHOW. YOU MAY CONTINUE.

Again and again, Lewin seems to ride the line between presenting evidence and making an argument. There is objection after objection from the Defense. And time after time, much as he did in pre-trial hearings, Judge Windham admonishes Lewin on his style but overrules the objection and allows the evidence to be presented. Lewin & Co. have composed their own documentary about Robert Durst, one that connects past and present in a cohesive, character-driven narrative. It’s a Greek tragedy, where an original crime begets a series of subsequent misdeeds, where blood follows blood. By the end of the first day, the defense attorneys have a deer-in-headlights look to them. According to the Los Angeles Times, “The stream of video clips prompted lead defense attorney Dick DeGuerin to remark derisively outside court, ‘I thought I was in a movie theater.’”

In my opinion, this is Lewin’s greatest coup — using the dominant language of not only Los Angeles but our media-saturated culture, he presents a narrative that is visual, emotional, familiar and damning. It remains to be seen whether the defense will argue using more traditional forensic methods, or if they too can infuse their response with 21st Century media savvy. Welcome to LA, indeed.

KARY ANTHOLIS

To Sean’s point, Lewin seems to have crafted his opening statement in the idiom of an episodic television miniseries. It begins with the “teaser” of Susan Berman’s murder, flashes back to the events surrounding his wife Kathie Durst’s disappearance, comes back around to Berman’s death, continues through the killing and dismemberment of Morris Black, and culminates with Durst’s incriminating interactions with the filmakers of The Jinx and with Lewin himself. The storytelling is measured. While the presentation may be tedious for those who know the story from The Jinx, Lewin’s intended audience is the panel of 12 jurors and 11 alternates to whom he is offering a roadmap for their upcoming five month journey. By the time he gets to two climactic moments in his narrative, we can get a sense from one (initially impatient) observer of those jurors just how Lewin is doing.

CHRIS TARRICONE
Another aspect of Lewin’s cinematic storytelling style is his habit of intercutting his narrative between what was going on in the lives of Durst, his friend Susan, his wife Kathie, and various side characters and friends in each of their stories. I could almost imagine the slug lines of a screenplay popping up as Lewin says ‘meanwhile, in New York, Kathie starts medical school’ (INT. MEDICAL SCHOOL – DAY) or ‘Now, who is Susan Berman?’ (SUBTITLE: SUSAN BERMAN – THE DAUGHTER OF MURDER INC’S DAVID BERMAN) or ‘Sunday, January 31st, 1982 in South Salem (EXT. COTTAGE – NIGHT; SUBTITLE: SUNDAY, JANUARY 31, 1982, SOUTH SALEM, NEW YORK). ‘This would be the last day of Kathie’s life.’ In presenting evidence this way, he isn’t just offering a narrative roadmap to the jurors but stimulating their memories through a visual and, in many ways, a cinematic story. As Sean says, I am also intrigued to see if Durst’s defense can find a way to respond. They may be one of the best and most experienced legal teams money can buy, but do they have any facts or alternative-narratives at their disposal to counter this sort of storytelling?

KAREN ANN COBURN 

I came into this trial with a fair amount of knowledge – having been in the courtroom for motions over the past year, having seen The Jinx and All Good Things. We have also had access to some evidence to be presented in the trial. Throughout, I’ve made an effort to see things from the defense’s perspective and imagine scenarios in which Durst was innocent. I looked for ways to explain his behavior and statements, if you will. For instance what could be explained by Asperger’s syndrome, which we expect the defense team to present. Or drug use? Or the psychological impact of his mother’s traumatic death? I’m very sensitive to society’s eagerness to ostracise and even demonize those who are different. But John Lewin painted such a comprehensive – and seemingly truthful – picture of Durst this week that even I think the defense has a very tough road ahead.

MOLLY MILLER

It will be a tough road ahead, indeed. Lewin has laid a firm foundation for what will undoubtedly be a meticulously constructed narrative of evidence. But whenever I think the odds against the defense are insurmountable, I’m reminded that Durst was acquitted of murder in Galveston, Texas. There, Dick DeGuerin managed to persuade a jury that Durst shot Morris Black in self defense and then panicked and dismembered his body. I’m certain that in this case, DeGuerin will present an alternate interpretation of events and evidence that will sow doubt in the jurors’ minds. The question is whether that doubt will ultimately seem reasonable.

CHRIS TARRICONE

I talked to a few reporters outside the courtroom who referenced the trial in Galveston in discussing the difficult task ahead for the defense. Some of these reporters referred to DeGeurin as a legal legend and murmured: “Well, if he got him (Durst) out of that mess, you never know.” That said, the key difference between the two trials is the amount of evidence Robert Durst has created against himself over the past eighteen years (including his Jinx interviews, his All Good Things interview, the “bathroom audio” and his arrest interview with Lewin). Lewin has leaned on this new evidence heavily in his opening, underscoring a fact that was missing in Galveston: Durst lies. A lot. And he does so intentionally. 

KARY ANTHOLIS

So with Deputy District Attorney John Lewin scheduled to sum up his opening statement on Monday, it will be the defense team’s turn to present their alternative narrative of the available evidence. In their opening statement, we will begin to see the defense’s strategy for sowing “reasonable doubt” in the minds of the jurors and perhaps we may glean the answer to one of the great mysteries of The People Vs. Robert Durst: Will Robert Durst take the stand on his own behalf?