The only thing more dramatic than the finale to The Jinx on HBO, in which Robert Durst, the skyscraper scion long believed to have been involved in the disappearance of his first wife and the murder of two others, was caught on tape whispering to himself, “What the hell did I do? Killed them all, of course,” was what happened off-screen the night before the episode aired. Durst was arrested in New Orleans on a murder warrant issued by the LAPD for the 2000 killing of his friend, Susan Berman. He is accused of lying in wait and killing a witness. If convicted, he would be eligible for the death penalty.
Disturbing Durst news has not stopped breaking since then. Only hours after Durst’s L.A. arrest, Louisiana officials rebooked the 71-year-old on new weapons charges. On Tuesday night, he was scheduled to be relocated to a mental health facility due to “an acute medical condition.” That same day, there was a police raid at his residence in Houston; an announcement also came out of Eureka, California, where police believe Durst could have intel on the 1997 disappearance of a teenage girl, Karen Mitchell.
For Andrew Jarecki and the filmmaking team behind The Jinx, the media blitz is the best free promotion they could possibly ask for. But what role can this documentary — a six-episode series that presents fact alongside possible fiction, splicing Durst’s home videos with eerie, graphic reenactments of events for which the details of which have not been, and likely cannot be, confirmed — play in a court of law? Read on for legal experts’ opinions on the Robert Durst case and how The Jinx may or may not contribute to a conviction.
Is Durst’s ‘Confession’ A Real Confession?
In the final, striking moments of the series, the camera stays on the empty room where Durst’s second interview just took place. But Durst’s mic is still hot — we have previously seen him mutter to himself, rehearsing answers under his breath, in scenarios like this one — as he heads to the bathroom. If we are to believe what the filmmakers present, we hear everything Durst says in the bathroom. Which brings us to the first dilemma: does what Durst said in this audio recording even constitute a “confession,” in the truest sense? “There it is. You’re caught,” he says in a husky whisper that, by the last scene in the last episode of a six-part docuseries, any viewer would describe as instantly recognizable. “What a disaster.”
“What the hell did I do?” he says. “Killed them all, of course.”
Anyone who believes Durst is a murderer will want to see an admission of guilt in those words, particularly in context: Durst was just confronted with a handwriting sample that he recognized as his very own, and then acknowledged that this sample did bear a nearly indistinguishable resemblance to the note Susan Berman’s presumed killer sent the Beverly Hills Police Department in 2000, days after her death, right down to the misspelling of “Beverley.” Durst has a dry, detached wit, and he has been able to discuss some exceptionally chilling events and accusations with the calm of a diner regular ordering the usual; his ability to sound at ease while detailing the method in which he dismembered the corpse of Morris Black in Galveston led his legal team to advise him to claim he was foggy on the specifics, lest his cold demeanor alarm the jury. But the handwriting appears to affect him in some deep, visceral way: he reacts with these seemingly involuntary guttural emissions that, in his bathroom ramblings, he refers to as “burping.”
But Durst could have easily meant that he believed this handwriting sample would make people believe he was a killer; he could have been acting out the part of the average citizen, faced with the same evidence he just saw. What would they think of this man? That he killed them all, of course. As Noah Feldman wrote in Bloomberg, Durst’s words take the form of a soliloquy, “And soliloquies are by their very nature ambiguous — because there’s no actual addressee. We don’t need to communicate with ourselves in spoken words, because we already know what we know. When we talk out loud to ourselves, we’re doing something different: exploring our ideas, fantasies, doubts, fears.”
“People are looking at this like an aha moment, the smoking gun. I took it as the mutterings of an old man who probably, at that point, didn’t think he was being recorded,” said Sally Keglovits, lecturer in criminal justice at DeSales University, “He was in the bathroom, where most of us would have an expectation of privacy. He was having this internal dialogue. It caught my attention. But I can imagine him having this discussion in his own head knowing his lawyers gave him this advice to not be interviewed, but he consented to it. I’m thinking, he’s probably thinking back to this conversation with his attorney. And then when he says, ‘I killed them all,’ my first take was [he meant], ‘and now they’re going to think I killed them all.’ I did not see it as a confession.”
It might seem like a given that a man accused of multiple murders uttering the phrase “killed them all, of course” is signing his own death sentence. Then again, it also may have seemed like a given that a man who readily admitted to chopping up a dead man’s body and dumping those garbage-bag-wrapped-limbs and that torso-in-a-suitcase (but WHERE IS THE HEAD) into the water would be found guilty of having murdered the aforementioned man.
Whatever It Is, Is It Admissible In Court?
As a matter of Fourth Amendment law, “it’s not complicated,” said Adina Schwartz, professor at John Jay College of Criminal Justice. “You’re only protected if you have a reasonable expectation of privacy. So you don’t need to personally expect privacy if somebody reasonably would.”
Durst agreed to wear a microphone, “and he was told that what he would say would be accessed, that it was being taped. Even if he forgot, he has no reasonable expectation of privacy.” His legal team could argue that his words do not a confession make, that “he’s playing around; he’s saying, ‘This is what someone might say. This is what I should get up and say.’ But that wouldn’t be grounds for it being inadmissible.”
Keglovits disagreed. “I think there’s going to be a whole lot of problems with admissibility. That’s not to say it won’t be allowed in court… [But] there could be a lot of arguments about expectation of privacy. He signed a release, but [this audio] came at a time when the formal interview had concluded and he was going to the bathroom. So a good lawyer can make the case for a reasonable expectation of privacy.”
“That’s a very gray area of the law,” Keglovits said. “That’s not a slam dunk… Will this be admissible? I don’t know. I’m not convinced.”
Another tack to try would be the “issue with authentication,” Schwartz said. In order for anything to be admissible, “something has to be what it purports to be. So if this is presented as a recording, was it doctored? Were parts of it, were other things he said edited out?” As far as admissibility requirements go, “authentication is rather weak,” she said. “The standard is the judge looks at it, and if a reasonable juror would believe it is what it purports to be — and reasonable doesn’t mean smart; it just means, not out of their mind — it’s admissible. So you could believe the filmmakers, but there could be questions about what was done in preservation. If this were a police tape, there’d be a log as to when it was recorded. There would be a chain of custody.”
The recording would “probably” get in, despite questions raised by the defense, Schwartz said. “Unless [the filmmakers] were incredibly not careful.”
Which brings us to…
Did The Filmmakers Undercut Their Credibility By Fudging With Their Own Timeline?
Jarecki and his team claim that they didn’t uncover this audio — the bathroom tapes — until recently, even though the interview was shot years ago. And the episode in which it appears distorts the timeline of events: The Jinx makes it look like Durst was arrested before his second interview took place, but in fact, the interview occurred first. The filmmakers aren’t under any particular obligation to the whole truth and nothing but; their objective is to tell a compelling, coherent story. (Jarecki’s conveniently on-camera claim, in the series finale, that the number one goal of this project is to “get justice” reads as insincere at best, self-congratulatory and outrageous at worst.) But the fact that Jarecki and Co. have been so evasive in interviews about the exact timeline throws the entire docuseries into question. It leads a viewer to question: “If this part is made-up, is the rest of it a lie, too?”
“I think it’s problematic, and I have to question their version of events,” said Keglovitz. “I’m sorry, but I find it hard to believe that this sat in the can for two years and then they hired some extra editors to just listen to audio tapes and, viola, we discover this confession in the bathroom. It opens a lot of doors.”
The Los Angeles Police Department has insisted that the timing of Durst’s arrest (Saturday night, less than 24 hours before The Jinx finale aired) was coincidental. Keglovits is inclined to agree. “I know the folks in L.A. are quite adamant that they’re not being controlled by a television show. It heightens the drama of it, for sure. But in my experience, law enforcement is not going to play games with something like that.”
Could The Filmmakers Accomplish Something Here That Law Enforcement Failed To Do?
Liberated from the constraints by which police operate, was The Jinx team able to unearth clues and, if one can call the “killed them, of course” snippet this, a confession, that law enforcement has been unable to access for decades?
CREDIT: AP Photo/Gerald Herbert
“Probably one of the things they could accomplish that law enforcement couldn’t do is that they had the time to devote to one single case,” said Keglovits. “They worked on this one documentary for years. Law enforcement doesn’t have that luxury. And I’m not trying to let law enforcement off the hook… But Jarecki and his team really could focus on Durst, where law enforcement did not have that luxury, and that to me is the number one differentiating factor.”
What About The Handwriting Match?
“Handwriting analysis is garbage,” said Schwartz. “First of all, there are no standards as to what constitutes a match between letters.” The second problem is that we have “no statistics” about the odds of whether a random person’s handwriting could also be a match in any given case. “If you don’t have that, talk about a match is meaningless,” she said.
“And the big, big problem is, people’s handwriting changes over time, and there are no standards of how much change is compatible with it having been done by the same person.” Schwartz cited a 2009 report by the National Academy of Sciences, “Strengthening Forensic Science in the United States,” in which “they were critical of all methods of ID aside from DNA on the ground that these are all statistical claims, they weren’t standard.” (To quote the study: “The scientific basis for handwriting comparison needs to be strengthened. Recent studies… suggest that there may be a scientific basis for handwriting comparison, at least in the absence of intentional obfuscation or forgery.”)
Anyone who claims to be able to determine, without a doubt, that two handwriting samples are by the same individual, according to Schwartz: “That’s just garbage.”
What about Durst’s reaction, though? Was that not a tell? On camera, Jarecki asks Durst if he can identify which “Beverley Hills” is Durst’s own hand; Durst is unable to say. But Schwartz pointed out that, though the science is not totally behind handwriting analysis, the public is “fooled by these claims of certainty” that handwriting analysts purport to have. “Was he caught, in effect, not because it was his handwriting but because he bought into this mystique of someone saying he could make an ID?” Schwartz asked. “If he was confronted with his handwriting without knowing someone had made that connection, that would be more probative.”
Keglovits believed the handwriting sample was more damning than the bathroom audio. “The lettering is the same, the misspelling is the same, the awkward language and the use of the word ‘cadaver.'”
Informed of Schwartz’s opinion about handwriting analysis, Keglovits said, “You know what? I wouldn’t necessarily disagree, except for the fact that we know that Durst wrote one of those letters in which Beverly was spelled incorrectly.”
What Influence Will Durst’s Wealth Have In This Case?
One might think that, at this point, when so many people who found themselves in Durst’s path wound up dismembered, disappeared or dead, his infamy would outweigh whatever power and protection his fortune has afforded him thus far. But a citizen would have to (miraculously) know little to nothing about Durst to serve on this jury in the first place, and Durst can still buy a powerhouse attorney.
“It’s the two systems of justice: the wealthy, and the rest of the population,” said Keglovits. “His money isolated him. It really removed him from the mainstream. It’s a very unusual case. It really is. Most people [accused of these crimes] would not be walking around. But he had that isolation that he could afford.”
“If he were poor or middle class,” Keglovits said. “He would not be walking around.”
Why Would Durst Agree To Be Interviewed?
Durst actually didn’t just consent to be interviewed; he reached out to Jarecki after seeing Jarecki’s All Good Things, the Ryan Gosling/Kirsten Dunst bomb based loosely on the Kathie Durst case. This whole thing was Durst’s idea. Durst had largely evaded punishment until now; he could have lived out the rest of his days a free man. Why invite the scrutiny when he has nothing to gain and his freedom and life to lose?
“It’s something we do see in a lot of criminals, and it’s just mere arrogance,” said Keglovits. She cited the case of Dennis Rader, “the BTK killer” (it stands for “bind, torture, kill,” I know, I’m sorry, it’s awful) who, over the course of nearly two decades, murdered 10 people in Kansas. “He was found out because, after about a 10 year lull, he started writing to the local paper again. He put himself back into the media. He put himself back into communication with the police. It’s the arrogance that drove him out. People were forgetting about him, and he had to get back out there.”
With Durst, “with the money that buys you that isolation and impunity, I think the arrogance says, ‘I’m not going to get caught,'” said Keglovits. “He got off on killing somebody and dismembering the body; we don’t even have a head! And he beat the rap! Why wouldn’t he be arrogant?”
“I don’t think he really had an appreciation for the sort of impact that his words were going to carry,” she added. “It’s almost like he was living in a bubble… He really had not been held accountable for any of the things he’s been accused of, except for that three-month stint in Texas. So why wouldn’t he think he can do whatever he wants? That’s sort of the message he’s received.”
What Are Durst’s Odds?
While it appears the evidence against Durst is piling up yet again, “Actually, I don’t think they have very much,” said Keglovits. “We have a letter and the envelope. They were able to place him in California [at the time of Berman’s murder], but they haven’t placed him in L.A. yet. We have mutterings on an audiotape that may or may not be admissible.”
One catch, though: Durst’s casual admission to Jarecki that he lied about his alibi on the night of Kathie’s disappearance “is problematic for him,” said Keglovits. “That could come back to haunt him.”