Robert Durst did not murder his long-time friend Susan Berman on December 23, 2000, and he doesn’t know who did. A generous man with Asperger’s syndrome, psychological damage from a traumatic childhood, and a history of poor decision making, Durst discovered Berman’s body when entering her home for a planned holiday visit. And because he had been hounded by the press and an overzealous New York prosecutor in the years following the disappearance of his first wife, Kathie, he ran. Later, out of love and respect for his friend Berman, he sent an anonymous note to the Beverly Hills Police directing them to the “cadaver.” Finally, the television series The Jinx, in which Durst seems to confess to three murders, was manipulative and “highly edited.”
This is what Durst’s all-star defense team would like jurors to believe.
Lead defense attorney Dick DeGuerin, nattily dressed in a charcoal blue-grey suit with a trifold white handkerchief in his breast pocket, greets the jury on this rainy Tuesday morning in March. Behind him and to the right of the jury box are two, large video monitors that the Prosecution relied on heavily in their opening arguments over the previous three days. For now, the screens are dark. DeGuerin holds up a good, old fashioned index card on which he has drawn the Greek letter Pi on one side, to represent the Prosecution, and Delta on the other, for the Defense. The 70 year old DeGuerin peers through round, tortoise shell glasses. His voice is comforting with a humble Texan lilt:
DICK DE GUERIN: AND I GIVE THIS TO YOU BECAUSE IT’S MY SIMPLE WAY OF ILLUSTRATING THAT THERE ARE TWO SIDES TO EVERY STORY. SO THAT’S WHAT MR. CHESNOFF AND I… THAT’S WHAT WE’RE GOING TO DO. WE’RE GOING TO TELL YOU WHAT WE THINK THE EVIDENCE WILL SHOW, AND MORE IMPORTANTLY WHAT WE THINK THE EVIDENCE WILL NOT SHOW, BECAUSE THE LACK OF EVIDENCE IS EVIDENCE ALSO.
It’s been made clear in voire dire and in the opening statements by both sides that DeGuerin and his team will have to relitigate Durst’s trial for the 2001 murder of Morris Black. What comes into focus now is the extent to which they will rely on tactics they used to convince the Texas jury that Durst killed Morris Black in self defense. A younger, sharper, DeGuerin did not shy away from victim shaming, arguing successfully that Morris Black was a dangerous man while at the same time asserting that he and Durst were companions. Westchester District Attorney Jeanine Pirro was also a main character in that sensational trial. In Texas she was described as a lady attorney with political ambitions. Here in LA they have added the damning label of “Fox News personality,” a calumny meant to win Left Coast sympathy for Durst.
DeGuerin’s next, low-tech visual aid is a large pad on an easel, on which he draws three cylindrical shapes.
DICK DE GUERIN: IN MY SIMPLE WAY, WHAT I’VE DRAWN ON THE BOARD IS THREE BUCKETS. THIS BUCKET, REPRESENTS WHAT I THINK THE EVIDENCE WILL BE ABOUT THE SUSAN BERMAN MURDER. THIS BUCKET REPRESENTS WHAT I THINK THE EVIDENCE WILL BE ABOUT KATHIE DURST’S DISAPPEARANCE. AND I’VE DRAWN THEM EMPTY. THE MORRIS BLACK BUCKET IS FULL, AND IT’S FULL OF BAD STUFF, BAD EVIDENCE. AND OUR CONCERN IS THAT THE EVIDENCE ABOUT MORRIS BLACK WILL SPILL OVER INTO THOSE OTHER BUCKETS.
Deputy District Attorney John Lewin interjects.
JOHN LEWIN: KATHIE’S WITH AN I-E,
The spelling error on DeGuerin’s rudimentary diagram is not corrected. This won’t be DeGuerin’s last unfortunate slip up of the day.
Addressing what he aptly calls “the elephant in the room,” the dismemberment down in Galveston, DeGuerin flubs again.
DICK DE GUERIN: BOB FULLY ACCEPTED RESPONSIBILITY FOR DISMEMBERING KATHIE DURST’S……MORRIS BLACK’S BODY. WE HAVE NEVER RUN FROM THAT FACT.
In the span of a few minutes, DeGuerin has misspelled the name of the abused, missing wife of the defendant and then accidently referred to her dismemberment by Durst. It’s jarring for those in the courtroom, who have been laser focused on the legendary defense attorney’s speech.
DeGuerin goes on to recount the details of the Texas trial, in which Durst was found not guilty of the murder of Morris Black. He talks about the culture of guns in Texas, and the difference between a .22 and a 9 mm. He paints a picture of a quirky friendship between Durst and Black, whom he characterizes as volatile and cantankerous. He even briefly projects Black’s mug shot on the screens, complete with booking details from a South Carolina detention center, eliciting an immediate objections from Lewin, as that “booking sheet” was never discussed during the pretrial hearings. Windham sustains Lewin’s objection and Black’s mug shot is taken down. Perhaps it has had its intended effect on the jury, but the jury also sees that DeGuerin has been caught breaking the rules, provoking Judge Windham to admonish him.
DeGeurin speaks only briefly about the victim at the heart of this trial, Susan Berman. Pointing to her successful writing career (she wrote for the New Yorker and published a best selling book among other things) DeGuerin chooses to refer to an article she wrote for City Magazine in San Francisco at the beginning of her career titled, “Why can’t I get laid in San Francisco?” The example lays the foundation for the defense’s depiction of the victim, which Chesnoff picks up later in the day — Susan Berman was, well, annoying.
We are back from the lunch break. Sated, relaxed, the jury re enters the box, journalists cram back into the gallery, and everyone is cozy and dry inside as the rain continues to pour.
DeGuerin dives right back in, embracing the gruesome elephant.
DICK DE GUERIN: YOU’RE GOING TO SEE PICTURES, THEY’RE GOING TO BE WORSE THAN THAT ONE THAT MR. LEWIN LEFT ON THE SCREEN YESTERDAY AFTERNOON. AND SO YOU’RE GOING TO HAVE TO SEE THEM. ONE THING WHEN YOU’RE LOOKING AT THEM, IF YOU CAN, AND I KNOW IT’S THAT HARD TO LOOK AT, IS THEY TELL HOW AMATEURISH THE DISMEMBERMENT WAS, BECAUSE HE CUT ACROSS THE BONES.
Sleepy jurors begin to squirm ever so slightly. Their faces remain inscrutable, but around the box, jurors purse their lips or clench their jaws. DeGuerin plows on, seemingly oblivious to the wake of discomfort that he is leaving.
DICK DE GUERIN: HE SAWED ACROSS THE THIGH BONES, AND THE ARM BONES, INSTEAD OF CUTTING AROUND THE JOINTS AS YOU WOULD IF YOU WERE GOING TO CUT UP A CHICKEN TO COOK IT, OR IF YOU HAVE TURKEY FOR THANKSGIVING AND YOU CARVE THAT TURKEY, YOU ALWAYS GO AROUND THE JOINTS. IT WAS CRAZY.
One juror looks down into her lap. Journalists type faster. There is tweeting.
DICK DE GUERIN: WE’RE NOT SAYING HE’S INSANE, WE NEVER HAVE SAID THAT. IT WAS A BRUTAL, AWFUL, HOURS LONG EXERCISE, AND THEN HE BAGGED UP THE PARTS ALONG WITH TONS OF EVIDENCE THAT WOULD LEAD THE POLICE DIRECTLY BACK TO HIM.
Robert Durst is so pathetic, Dick DeGuerin implies, that the poor sap didn’t even know how to dismember a body.
At 2:10 pm, after a short break, David Chesnoff rises to address the jury. The 64 year old Las Vegas attorney seems youthful compared to DeGuerin. His curly grey hair is slicked back, his glasses are rimless, and his suit is a light grey. There is renewed energy in the courtroom as he introduces himself, acknowledging his nerves.
DAVID CHESNOFF: YOU AND I SHARE A HUGE RESPONSIBILITY, BECAUSE WE HAVE MR. DURST’S LIFE IN OUR HANDS. EVEN AFTER 40 YEARS OF PRACTICE, YOU GET NERVOUS BEFORE YOU STAND UP. YOU HAVE BUTTERFLIES, PERSPIRING A LITTLE BIT I’M SURE.
Images of the Constitution and the Bill of Rights light up the screens as Chesnoff calls on the jury’s patriotism.
DAVID CHESNOFF: THE UNITED STATES HAS THE GREATEST VEHICLE FOR JUSTICE IN THE WORLD, THAT’S THE JURY, WHO ARE SWORN TO UPHOLD THE US CONSTITUTION, PROBABLY THE MOST SACRED DOCUMENT IN THE HISTORY OF THE FREE WORLD, WITHOUT QUESTION THE GREATEST DOCUMENT FOR FREEDOM. AND THAT CONSTITUTION, WHICH YOU ALL SWORE AN OATH TO, MANDATES THAT UNTIL THE PEOPLE PROVE A CASE BEYOND A REASONABLE DOUBT WITH COMPETENT EVIDENCE, YOU MUST FIND A PERSON, A FELLOW CITIZEN ACCUSED, NOT GUILTY.
Does his earnest call to civic duty land for this jury?
The jury is not here to decide if Durst was responsible for the disappearance of his first wife, Chesnoff reminds them. “It’s important to remember that Bob is only charged with Susan Berman’s murder, that’s what you folks are deciding.” But since the prosecution is arguing that Berman’s involvment in the cover up after Kathie’s disappearance is what led to her murder decades later, the defense still has to untangle a few things. So just as DeGuerin sought to portray Morris Black in a negative light, Chesnoff recasts Kathie Durst as an unstable woman who could have disappeared on her own accord.
DAVID CHESNOFF: THE BOTTOM LINE IS THAT EVIDENCE WILL SHOW THAT KATHIE WAS ALL OVER THE PLACE, AND WAS LIVING AN UNSTABLE LIFE AT TIMES APART FROM BOB.
In his version of the Durst marriage, Kathie lived the high life with Durst and was accepted into Albert Einstein College of Medicine due to his family’s connections. She was unstable, a drug user, and promiscuous. And Chesnoff promises evidence to show that Kathie was a desultory medical student, missing classes because of drug use. He says that it was in fact Kathie, not Susan Berman, who spoke with the dean of the medical school around the time she went missing. The jury will have to weigh this argument against the prosecution’s exhaustive evidence of Durst’s continuing abuse of Kathie — a documented explanation for her absences from school.
“No evidence is evidence” — it’s the backbone of Durst’s defense. Chesnoff stresses that police in Beverly Hills, Los Angeles, New York City and New York State, even the FBI, failed to find any forensic evidence connecting Durst to the crimes.
DAVID CHESNOFF: NOT A SINGLE POLICE AGENCY HAS FOUND A SINGLE THING LINKING MR. DURST TO THESE OFFENSES. THIS ABSENCE OF EVIDENCE EXISTS EVEN THOUGH THE POLICE HAVE HAD 38 YEARS, AND 20 YEARS RESPECTIVELY, TO CONNECT SOMETHING WITH PHYSICAL EVIDENCE.
While DeGuerin’s description of Susan Berman was dismissive at best, Chesnoff goes all in, telling the jury,
DAVID CHESNOFF: SUSAN ALWAYS LIKED TO BE THE CENTER OF ATTENTION, AND COULD SOMETIMES RUB PEOPLE THE WRONG WAY. SHE HAD WEIRD QUIRKS AND FEARS, SHE DIDN’T CROSS BRIDGES ON CERTAIN STREETS.
Then, perhaps not fully appreciating what it means to be in a city where food sensitivities are the norm, he adds,
DAVID CHESNOFF: SHE DIDN’T EAT IN RESTAURANTS UNLESS SHE WAS ABSOLUTELY SURE IT’S INGREDIENTS WOULDN’T TRIGGER ONE OF HER PROFESSED ALLERGIES.
According to Chesnoff, the fact that Durst remained friends with this handful for 38 years is a testament to his good character.
Then, for the first time, the jury hears allegations that the investigation of Berman’s murder was bungled by the LAPD. Nineteen days lapsed before a criminalist was assigned to the case. No forensic evidence was gathered to determine if Berman had defensive wounds. The crime scene wasn’t properly secured and family members traipsed in and out of Berman’s Benedict Canyon home. Berman’s agent, Nyle Brenner, climbed in a window and went through Berman’s mail and then her voice mail. Did he delete messages? We’ll never know. Chesnoff’s arguments of police incompetence echo the defense of O.J. Simpson in an L.A. courtroom 25 years ago.
Unlike the prosecutors, who showed clips of recorded testimony, Chesnoff reads from transcripts — transcripts of interviews that were conducted decades ago, when witness memories were fresh. The defense promises to call expert witness Dr. Elizabeth Loftus to support their argument that much of the testimony in recent years was corrupted. Loftus’s academic credentials are impressive. Her work as an expert witness includes having testified on behalf of the defense in the trials of OJ Simpson, Ted Bundy, the officers charged in the beating of Rodney King, and more recently Harvey Weinstein.
DAVID CHESNOFF: SHE IS PREPARED TO TESTIFY AT THIS TRIAL ABOUT THE WORKINGS OF HUMAN MEMORY, THE EFFECTS OF SUGGESTION ON MEMORY, THE MECHANISM OF CREATING FALSE MEMORIES, AND THE CHARACTERISTICS OF FALSE MEMORIES AND HER REVIEW OF MATERIALS IN THIS CASE.
Chesnoff turns and shoots daggers at Deputy DA Lewin.
DAVID CHESNOFF: MOREOVER SHE WILL IDENTIFY SOME OF THE SUGGESTED ACTIVITIES THAT OCCURRED IN THIS CASE, SUCH AS LEADING QUESTIONS WHEN PEOPLE ARE BEING INTERVIEWED, AND OUTSIDE RESEARCH INCLUDING MEDIA, INCLUDING THE JINX.
The defense’s opening statement in the LA trial of Robert Durst echoes their arguments in his Galveston, Texas trial: Blame the media and an aggressive prosecutor. Argue that Durst is unlucky and mildly autistic. Malign the victims. But today’s Dick DeGuerin has slowed considerably, is prone to mistakes and relies on a folksiness that feels tone deaf to the sensibilities of a sophisticated, West LA Jury. One wonders how Chesnoff’s earnest pleas for fairness will play with the jury when Durst’s own attorney likens the hours he spent cutting up a human body to the miscarving of a chicken. And in the 18 years since Durst’s trial for the murder of Morris Black, the defendant has offered up an abundance of incriminating evidence of his involvement in all three crimes. In the end, as they did in Texas, the defense will rely on the defendant himself to try to support their interpretation of the evidence. As Dick DeGuerin announced in his opening statement:
DICK DEGUERIN: BOB DURST IS GOING TO TESTIFY.
For links to all of Crime Story’s coverage of the The People vs. Robert Durst, click here.