Today, we announced a partnership with the Podcast giant Acast to host, distribute, and monetize their original podcast series, Jury Duty: The Trial of Robert Durst. The groundbreaking series will tell the stories presented in a murder trial as the trial is happening. Jury Duty: The Trial of Robert Durst will be available on all podcast players, including Apple Podcasts, Spotify, and the Acast app, starting Wednesday, July 15. You can listen to a trailer here.
The trial in the People v. Robert Durst adjourned abruptly on Monday, March 16 at the Defense’s request. While sudden, this adjournment did not occur in a vacuum. A sweeping emergency order from LA Mayor Eric Garcetti’s office had just closed bars, gyms and movie theaters as well as dine-in restaurants in an effort to curb COVID-19 infections which were rapidly spreading through the city and the rest of the nation. Los Angeles Superior Court Presiding Judge Kevin C. Brazile had also announced the scaling-back of court operations, including suspending new criminal and civil jury trials for 30 days. And on Thursday, March 19, Governor Gavin Newsom ordered Californians to shelter in place, shuttering schools and businesses for the foreseeable future. In Los Angeles, as elsewhere, there was a palpable before-the-storm anxiety, as households stocked up on toilet paper and canned goods, uncertain of what might come next. Along with Durst trial jurors, attorneys, and court staff, the journalists covering the trial repaired to our respective places of safety. And all, I imagine, asked the very same question, “How and when might the trial ever resume?”
99 days later, June 23 sees the first proceedings in the People v. Robert Durst since that surreal March day. With infection hot-spots still flaring up all across the country and re-opening strategies varying by region, there is nevertheless a feeling locally that Los Angeles had weathered the first wave of the pandemic and that “normal life” might slowly begin anew. (As of this writing, the national infection rate has spiked to dangerous new highs, causing renewed shutdowns.)
But there is nothing “normal” about the logistical accommodations forced upon the LA County courts by COVID-19. In the usually crowded Department 81 at the Airport Courthouse, bits of red gaffers tape mark seats in the gallery and jury box where onlookers can sit; the entire second row of the gallery is kept unoccupied. Plexiglas panels, bolted in place, shield the bailiff, judicial assistant and court reporter’s desks. A single panel separates the defendant’s chair from the rest of the defense team’s table. There is a sticker affixed to the floor at my feet: HERE FOR YOU, SAFE FOR YOU, it proclaims. The eerie emptiness feels strangely familiar, like something out of a dystopian sci-fi movie from the 1970s. Physically present — and all masked — are courtroom staff, as well as four Deputy DAs, two detectives, and a handful of summer clerks and onlookers spread throughout the windowless, wood panelled courtroom. Robert Durst remains in a private hospital room in LA’s Twin Towers Jail downtown and his attorneys will teleconference in. Just after 9 am, the masked bailiff orders the sparse crowd to rise, Judge Mark E. Windham, sporting a black neck gaiter, strides in, and the hearing commences.
Welcome to the state of things to come.
At issue today are three motions, each an attempt to grapple with the judicial ramifications of the pandemic. First up is Durst’s motion for mistrial, originally filed at the end of April. The disembodied voice of defense attorney David Z. Chesnoff fills the room via speakerphone. Citing People v. Ayala (2000), Chesnoff notes that a defendant’s request for a mistrial must be granted when “his chances of receiving a fair trial have been irreparably damaged.” At the top of Chesnoff’s list of concerns is the ongoing and “unprecedented” mid-trial delay. True to form, Chesnoff strays from case law and unleashes a blunderbuss argument dense with COVID-19 statistics; concerns about the limits of juror memory and potential “exposure” to undue influence; and anxieties about the threat the pandemic poses to jurors, their families, court staff, Durst and his aging attorneys. “The defendant is not asking for a do-over, your Honor,” Chesnoff avers. “Just a fair, fresh start…. The only time issue will be in selecting a new jury, and that is a small price to pay, your Honor, to ensure that Mr. Durst receives a fair trial.”
In their brief, Durst’s defense team dismissed proposed work-arounds involving remote technology and witness testimony conducted via video. They raised concerns about “Zoombombing,” online security, and “Zoom fatigue.” The fact that Zoom is not the only videoconferencing software readily available was immaterial. “Mr. Durst, who faces a charge of special circumstances murder,” the motion reads, “should not be forced to serve as a guinea pig” in any criminal justice experiment.
Chesnoff then broaches his most provocative and fundamental argument: that any attempt to continue the trial via remote video or telephonic technology would violate the defendant’s 6th Amendment right to confront any witnesses against him. This is a critical issue, one the California courts in general, and those of LA County in particular, have wrestled with since the pandemic shut down normal operations back in March. To date, the consensus favors practical solutions. In his June 11 “General Order Re COVID-19 Pandemic,” Los Angeles County Presiding Judge Kevin C. Brazile rolled out an ambitious timetable for reopening the LA courts, one in which remote proceedings serve an essential function. According to that timetable, “Criminal Division will commence a phased expansion of operations and increase the use of remote proceedings via Webex” on July 6, 2020. Brazile addressed the range of available video conferencing technologies — LACourtConnect, CourtCall or Webex — granting individual judges “the discretion to require the use of technology for remote appearances for the duration of this general order.” While Zoom may have to address its reported security flaws, these alternate, ostensibly more secure two-way video conferencing technologies are likely the wave of the future. The constitutionality of remote witness testimony will no doubt be challenged in the future, but for the moment, Durst’s defense team is fighting an uphill battle against remote technology in the courtroom. It’s a struggle they will not give up on easily.
When Deputy DA John Lewin, wearing a blue disposable pleated mask, rises for his argument, it’s clear that he’s fully in sync with the LA courts’ priorities. “If you look at the arguments that [the Defense is] making,” Lewin observes, “if that were true, then the Chief Justice and the Presiding Justice of the County would have said to the court … ‘Judge Windham… you are to grant a mistrial. In this case, we are to start over. We will not be continuing with any trials.’ That is not what the order was,” Lewin points out. “So by definition, counsel’s arguments are simply unsupported legally because there has been no such dictate by the Cal Supreme Court. And they certainly were in a position… they made very clear, what they said was, ‘Let’s try to look at ways that we can continue on with these trials, and what modifications can be made.’”
In his decision, Judge Windham addresses the Defense’s many lines of argument, noting that because the Defense had moved for adjournment back in March before the courts shut down, they are prevented from moving for mistrial at this juncture. Praising both team’s passion, Windham stresses that Ayala’s standard of “irreparable damage” has not been met and denies the Defense’s mistrial motion.
Just how a pandemic-era criminal trial would in fact operate occupies the rest of the day’s proceedings. The two People’s motions revolve around the use of audio-video technology for witness testimony. The first brief moved to declare four out-of-state witnesses as “unavailable” under Evidence Code 240 due to the COVID-19 pandemic: Nick Chavin, Charles Lachman, Stephen Silverman and New York City Detective Michael Struk. Once so designated, admissible portions of the four’s videotaped conditional examinations (the examinations were recorded during earlier hearings leading up to this trial) might then be played for the jury. The admissibility of Lachman and Silverman’s video testimony has already been stipulated to, but Struk is more problematic for the Prosecution. Struk was involved in the early, fumbling NYPD response to Kathie Durst’s disappearance at the end of January, 1981. Lewin shares his preference that Struk and Chavin testify in person, but he asserts that he is being realistic in assessing that both men are well over 65 years old, and thus in a high-risk category to travel from New York to California in the middle of a pandemic. He wants the court to resolve this issue now, so that the parties can begin to negotiate which elements of the conditional witness examinations will be presented to the jury.
Lead defense attorney Dick DeGuerin, hunkered down in Houston due to his doctor’s orders, objects to the applicability of 240 in this instance. “It’s a very narrow issue,” DeGuerin suggests, “and the COVID-19 threat does not fit what 240 requires.” He then tries to steer the discussion back to the threat that the pandemic poses not only to witnesses, but to counsel. “[The People] want to start a trial right away, regardless of whether I’m available or Mr. Chesnoff’s available or Mr. Re is available… Either everyone is available or nobody is.” Once again, however, the Defense’s legitimate concerns about the health risks associated with resuming a jury trial miss their mark. As infection rates spike in DeGuerin’s home state of Texas and elsewhere, the Defense’s anxieties are absolutely understandable. Unfortunately, they have yet to craft an appropriate argument for their cause. Sticking to the “narrow issue” under discussion, Windham notes that “infirmity” is one of the bases of “unavailability” and grants the motion.
The hearing’s momentum is clear — all the signs are pointing to the People v. Robert Durst recommencing in late July. Due to physical distancing requirements, the proceedings will be moved to a much larger courtroom at the Inglewood Courthouse, one that will allow the twelve jurors and eleven alternates to spread out (see Crime Story, May 21 SCOOP Confirmed by Court: Robert Durst Trial Has New Start Date (July 27) and Courtroom (in Inglewood). The People’s second motion is another effort to seek extraordinary accommodations to protect the health and safety of all parties and participants in the trial. Lewin asks the Judge to permit “out-of-state, non-principal witnesses over sixty years old and/or with existing health issues” to testify “by a contemporaneous, two-way video conference system.” Lewin stresses that one of the benefits of two-way remote witness testimony is that witnesses would not have to wear masks. “They will have their masks off,” Lewin points out. “People will be able to see their whole face. If they’re testifying remotely, the jury can see their expressions.” Windham, whose own neck gaiter/mask keeps slipping beneath his nose, duly anticipates the defense team’s 6th Amendment challenges to the motion and tells the attorneys that the appropriateness of remote testimony will be dealt with on a case-by-case basis; he also expresses a desire to see the technology in operation before committing to it wholeheartedly.
On speakerphone, Dick DeGuerin is incredulous. “If you are excusing the witnesses and allowing them to appear remotely, that means that you should excuse the lawyers, but we can’t try a case without being physically present. It just is not a substitute for the right of confrontation, the right of assistance of counsel. There is a danger to us… and the same danger, the prosecution is saying, applies to the witnesses.”
This catches Windham’s attention. “I’m going to reframe your argument,” Windham tells DeGuerin. “I guess your argument as to remote testimony is that when you return to the courtroom, [the witnesses] should return to the courtroom also.” DeGuerin expands on this: “Well, that’s part of it, yes, sir. That’s not the whole argument. I’m just saying that, if you’re going to excuse witnesses, you need to excuse the lawyers.” DeGuerin repeats this point later in the hearing, assisted by Chesnoff, who declares, “We unequivocally object to Zoom examination of witnesses in a special circumstances case, regardless of the rationale.” Windham, who routinely considers these declarative objections with equanimity, responds patiently, “If you have another motion to adjourn, I’ll hear it, but you haven’t made that motion and it ought to be in writing.”
“I am going to order counsel to be present in this court July 20 or document why they are not present,” he announces. “And at that point, the burden will be on the Defense to prove why the trial should not proceed on July 27…. I’m open to hear more and for you to incorporate material from your mistrial motion so I can consider that, but the burden is on the Defense to show why we shouldn’t proceed.” The table is set for a future defense motion to adjourn. For the moment, however, technology again carries the day – Windham grants the People’s second motion to allow video conferencing for non-principal witnesses who cannot travel to LA or are over age 65, subject to his review of the conferencing technology.
Before adjourning the hearing, Judge Windham offers an aside that will completely transform the way that the public will receive information about the Robert Durst trial. Prior to the COVID-19-related break, the judge only allowed audio recording of the witness testimony phase. However, as he wraps up this morning, he adds:“[I]n Inglewood, we’re going to need [a] camera because… the whole courtroom will be occupied by jurors. And there are very few seats for the public. So I think I do have to allow a camera.” One week later, on Tuesday, the Los Angeles Superior Court public information office will put out a request for proposals to provide video and audio pool coverage of the Durst trial. This revolution in the saga of Robert Durst, it seems, will be televised.
And with that, Windham rings the small chime signaling the end of the day’s proceedings. As infection rates continue to rise all across the south and southwest, Robert Durst’s Los Angeles murder trial is scheduled to resume.
Correction: Judge Windham later announced that the next hearing in this case will be on July 17 not July 20.
CRIME STORY has reported extensively on the Durst Trial, publishing more than 20 pieces on the case over the past year. You can find links to all of those stories here.