LOS ANGELES (CN) — New York real estate heir Robert Durst will finally go to trial Sept. 3 on charges he murdered his close friend Susan Berman 18 years ago, a Los Angeles Superior Court judge declared Tuesday. At that trial, the jury will also hear that the 75-year-old eccentric multimillionaire killed and dismembered a neighbor in Texas, Morris Black, less than a year after Berman’s death.
The decision by L.A. Superior Court Judge Mark E. Windham to admit evidence of that separate killing is a potentially devastating setback for Durst’s defense to murdering Berman, even though a Texas jury acquitted him of murdering Black on grounds of self-defense.
“The second the Morris Black acquittal comes before this jury, it’s game over,” Chip Lewis, one of Durst’s defense attorneys, told Windham Tuesday. “I can’t say it any more eloquently than it’s game over.”
The lead prosecutor, Deputy District Attorney John Lewin, argued that the Berman and Black killings are “inextricably intertwined” with the December 1982 disappearance of Durst’s first wife, Kathleen Durst, who has never been found.
Lewin contends Durst killed his wife and disposed of her body. Years later, when a new investigation was opened into her disappearance, Durst went to Berman’s Beverly Hills-area cottage and shot her in the back of her head to prevent her from disclosing what she knew about Kathleen’s death, prosecutors say.
Around the same time, Durst fled his New York homes to go into hiding disguised as a mute, elderly woman. He settled in a $300-a-month boarding house in Galveston, Texas, where Black also lived.
Prosecutors believe Durst killed Black after Black figured out his true identity and why he was a fugitive.
“The motive for [killing] Morris Black ties back to Susan Berman and ties back to Kathie Durst,” Lewin said.
Durst has denied killing Berman or his wife and has testified that he shot Black accidentally in a struggle over a gun.
He was arrested for Berman’s death while on the run in New Orleans on March 14, 2015 — the day before the last of a six-part HBO documentary series on him, called “The Jinx: The Life and Deaths of Robert Durst,” was broadcast. In that final episode, he is heard whispering to himself on a hot mic that he had “killed them all, of course.”
In the Tuesday hearing, his defense team argued that Los Angeles prosecutors should not be able to essentially put Durst on trial a second time for murdering Morris Black — “the exact same crime a jury of his peers acquitted him,” Lewis said.
That would “implicate fundamental fairness,” he said.
Because Durst had taken the stand in Texas to explain how Morris Black died, Lewis accused Lewin of trying “to force Mr. Durst to abandon his Fifth Amendment rights” by having to testify also in the Berman trial. Lewin’s attempt to relitigate the Black murder case is “evil genius,” the defense attorney said.
Lewis and his colleagues, Donald Re of Los Angeles and lead defense attorney Dick DeGuerin of Houston, argued that admitting evidence of Black’s killing would violate the legal principle of collateral estoppel.
“We should not have to try that case again,” said DeGuerin, who also led the defense team in the Texas trial.
They said that only circumstantial evidence implies any link between the deaths of Kathie Durst, Berman and Black. Lewin’s arguments are full of phrases like “reasonable belief,” “reasonable to suppose,” and “reasonable inference,” Lewis told Judge Windham.
And they objected that details of Black’s dismemberment, especially gruesome photos of the body, would be far more prejudicial to Durst than useful to the jury as evidence.
Lewin countered during his argument that Durst was to blame for the gruesomeness.
“You don’t get to cut a guy up with a bone saw and then say, ‘If the jury sees this, it’s going to be really bad for me,’” the prosecutor said.
Showing the jury what happened to Black would help explain the bizarre, complicated series of events, Lewin suggested. “We cannot put a blindfold on this jury,” he said.
“We want justice for Susan Berman, we want justice for Kathie Durst, and most of all we want the jury to understand why this happened.”
Windham ruled that all the evidence prosecutors wanted about the Morris Black killing could be admitted at trial, though he said he may keep out some photos of the dismembered body.
The judge said evidence about a previous crime can be admitted in a later trial to show the defendant followed a substantially similar plan or scheme or had a similar motive in both crimes.
The Black and Berman killings may be found to be similar because both victims apparently could have been witnesses against Durst. Black was “at least a witness to Mr. Durst’s identity and to his flight” as a fugitive, Windham said.
“He’s a witness to flight, which shows consciousness of guilt” on Durst’s part, the judge added.
The fact that Durst cut up Black’s body, put the pieces in garbage bags and tossed them into Galveston Bay “shows he’s a guy who destroys evidence,” Windham said, which relates to the question of Kathleen Durst’s disappearance.
The prosecution has charged Durst with the special circumstances of killing a witness and lying in wait in Berman’s murder.
Windham said a crime scene reconstruction expert believes Morris Black was shot in the back of the head, as Berman was, which, he said, “is relevant to show lying in wait.”
Overall, the judge said, the two killings “are part of the same plan to eliminate witnesses to avoid prosecution.”
“In general, I believe the probative value [of the Black case evidence] massively outweighs the prejudicial effect,” he said.
In addition to setting a firm trial date of Sept. 3, Windham set a hearing for May 14 to consider additional pretrial motions.
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