LOS ANGELES (CN) — A judge ruled Thursday that the Los Angeles district attorney’s office may pore through 60 boxes of Robert Durst’s papers for evidence to use in prosecuting the New York real estate scion for the murder of his close friend Susan Berman.
Although Durst’s defense team said materials in the boxes could be protected by the attorney-client privilege, Superior Court Judge Mark Windham held that Durst had waived the privilege by sharing the boxes with the creators of a 2015 documentary about him.
Durst faces trial next year on charges that he shot Berman in the back of the head in December 2000 to keep her from disclosing what she knew about the disappearance and presumed murder of Durst’s first wife, Kathleen, nearly two decades earlier.
The documentary, a six-part HBO series called “The Jinx: The Life and Deaths of Robert Durst,” examined Kathleen Durst’s disappearance, Berman’s death and the 2001 killing and dismemberment of a neighbor of Durst’s in Galveston, Texas. Durst was charged but acquitted of that death on self-defense grounds.
Against the advice of friends and attorneys, Durst cooperated extensively in making “The Jinx,” giving interviews and granting the filmmakers access to the 60 boxes of documents.
Windham said he was persuaded that Durst waived attorney-client privilege in the documents based on testimony this year from Durst friend Susan Giordano, who had stored the boxes in her suburban New York home. He also considered Durst’s statements in a March 2015 interview of Durst by Deputy District Attorney John Lewin, who is leading the current prosecution.
In a second ruling, however, Windham refused to give prosecutors access to other boxes of documents collected from Durst’s residences in Galveston and New Orleans. The judge appointed a special master to go through those boxes to cull out privileged documents, but the process is taking a long time.
Lewin proposed that the district attorney’s office set up a “dirty team” of lawyers and investigators, kept separate from the prosecution team, to go through the boxes, but Windham said Thursday he could not allow that.
Under a 2001 state Supreme Court decision, he said, the “mere disclosure” of privileged documents to anyone in the prosecution office would violate Durst’s rights.
The judge issued his rulings at the end of a special hearing this week in which two friends of Berman gave testimony supporting prosecutors’ theory about Durst’s motive to silence her.
They claim that the day after Kathleen Durst died, Robert Durst persuaded Berman to make a phone call posing as Kathleen to hide the fact that his wife was already dead.
On Tuesday, Miriam Barnes testified that the week Kathleen vanished, her neighbor Berman nervously confided that she “did something today for Bobby” Durst and that if anything ever happened to her, “Bobby did it.”
On Wednesday, prominent Hollywood producer Lynda Obst said Berman had mentioned that Durst once had her pretend to be Kathleen Durst in a call to the medical school where Kathleen was a student.
That comment came out when Obst and Berman were working on turning Berman’s autobiography into a movie in the early 1980s. But Obst told Deputy District Attorney John Lewin, the lead prosecutor, she recalled it more than 30 years later when she saw the documentary on Durst.
On cross-examination Thursday, lead defense attorney Dick DeGuerin of Houston tried to shake Obst’s memory of Berman’s phone-call statement, asking if it could have come from an article she’d read or have been a suggested or a false memory.
“Memories play tricks on us,” he said.
She repeatedly said she was certain.
Obst appears in the HBO documentary. She told DeGuerin that being interviewed for the film about the murder of her friend was traumatic, and that she blocked the experience from her mind.
When the film was televised a few years later, she was shocked by a segment in which a detective questioned the puzzling phone call supposedly from Kathleen Durst to the Albert Einstein Medical Center.
“I think it was hearing ‘Albert Einstein Medical Center’ that triggered [the memory],” she said. “It was blood-curling.”
She said she was afraid to get involved in the murder case against Durst but that she wants to see “justice for Susan.”
On redirect examination, Lewin asked why she had delayed contacting authorities once the memory resurfaced.
“I really did not want to get involved in this case,” she said. “I was really scared of Mr. Durst. … He was known to kill witnesses.”
Obst and Barnes were among seven who have taken the stand so far to give advance testimony in conditional examinations, in case they cannot appear when trial starts.
Lewin said Thursday he plans to call four more advance witnesses in late July, and the defense may call a fifth, a New York police detective who investigated Kathleen Durst’s disappearance.
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