Attorney-Client Privilege Debated in Durst Murder Pretrial

LOS ANGELES (CN) – As real estate scion Robert Durst sat in jail awaiting trial for murdering and dismembering a neighbor in Galveston, Texas, he practiced what he would say in court and how he would say it, according to a recording of a jailhouse phone call with his wife.

On the recording – played in a Los Angeles courtroom where he now faces a separate murder charge – Durst is heard asking Debrah Lee Charatan, his second wife, about tapes he’d made of his practice sessions.

“Do I sound 100 percent believable? The tone of my voice sounds sincere?” he asks Charatan on the jailhouse recording.

He tells her that he can only depend on her and Stewart for this help, referring to Stewart Altman, his former high school chum and sometime attorney.

On the stand in Superior Court Thursday, Altman said he listened to the practice tapes and then destroyed them. But he said that only after his own attorney raised his Fifth Amendment right against self-incrimination and the lead prosecutor accused him of perjury.

Deputy District Attorney John Lewin brought Altman to court this past week as part of building a case against Durst for allegedly murdering Susan Berman in her Los Angeles-area home in December 2000.

Prosecutors suspect Durst killed Berman – his close friend – to prevent her from revealing what she knew about the disappearance and suspected murder of Durst’s first wife, Kathleen, in January 1982.

They also believe he murdered his Galveston neighbor, Morris Black, in 2001 to silence him. However, a Texas jury acquitted Durst on self-defense grounds in 2003. Durst did serve time for evidence tampering.

In the Berman murder case, Lewin is examining some elderly potential witnesses – Altman is 74 – in advance of trial to preserve their testimony.

But because Altman is a longtime friend and lawyer for Durst, Lewin’s examination turned tense as it became tangled in disputes over attorney-client and attorney work-product privilege and, because Altman’s wife Emily is his legal secretary, marital privilege.

Regarding Durst’s practice tapes, Superior Court Judge Mark Windham ruled that the Fifth Amendment did not apply because the statute of limitations had run out on any possible crimes Altman might have committed by taking them from jail in 2001.

He held Altman’s reasons for destroying those tapes were protected as work product. And he ruled Lewin had not yet laid enough foundation to introduce the jailhouse recording between Durst on Charatan as evidence.

“Not now, maybe at trial,” Windham said. “That’s the way this thing has gone.” Trial is expected to begin sometime next year.

Like his wife’s time on the stand, Stewart Altman’s examination went slowly. One of his attorneys, Marilyn Bednarski of Kaye, McLane, Bednarski & Litt in Pasadena, complained Thursday that he had been subpoenaed from New York for one day of testimony but had been questioned for three.

Lewin and Durst’s defense attorneys, led by Dick DeGuerin of Houston, battled frequently over privileges and Lewin’s assertions that Altman is biased and shading his answers to protect his old friend.

Windham mildly chastised Lewin several times and tried to hurry him along. At one point on Thursday, the bewildered judge told the attorneys they were quibbling over a hypothetical.

Other times, Windham clearly was intrigued by some of the subtle privilege issues the hearing presented.

After one extended debate among the attorneys – dealing with whether attorney-client or marital privilege protects whether Stewart Altman did or did not instruct his wife/legal secretary about keeping certain Durst communications confidential – Windham said: “Such a rich legal question about such an insignificant factual question.”

The next step in the murder case may be the preliminary hearing, tentatively set for Oct. 16. Durst’s defense attorneys also are considering bringing out an elderly New York detective to testify about Kathleen’s disappearance.

But Hurricane Harvey may delay those events.

Three of Durst’s attorneys, including DeGuerin, are from Houston. Although their homes are safe, they told the judge they can’t use their offices yet.

One of the attorneys, Chip Lewis, said that he told his staff not to come to work this week and that floodwater has made its way into the elevators in DeGuerin’s building.

He also said another attorney, who oversees discovery and document management for the team, has been forced from her home and has not been able to access the internet to get to online files.

The team’s Los Angeles lawyer, Donald Re, said the judge has been very considerate of the attorneys’ problems and expressed concern for their families.

Windham set a hearing for Sept. 20 to discuss details about the preliminary hearing.


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