Prosecutors Demand That Robert Durst Be Tried for Murder

In this Dec. 21, 2016 photo, real estate heir Robert Durst is brought into a courtroom in a wheelchair for a hearing in Los Angeles. (AP file photo/Jae C. Hong)

LOS ANGELES (CN) — A hearing on whether New York real estate heir Robert Durst should stand trial for the December 2000 murder of his close friend got under way Monday with photos of the bullet wound in the back of the friend’s head and bruising to her body.

Prosecutors claim that Durst, now 75, killed his friend and confidant Susan Berman in her Beverly Hills-area home to prevent her from telling New York detectives that the eccentric multimillionaire had murdered his young wife, Kathleen Durst, who vanished in January 1982.

Durst and Berman had been friends since college, and Berman, a journalist and writer, acted as his press spokesperson in the crush of media interest after Kathie Durst’s disappearance.

But during special hearings before Los Angeles Superior Court Judge Mark E. Windham over the past year, witnesses have testified that Berman hinted that Robert Durst had killed his wife. Others said Berman, the daughter of a Las Vegas mobster, made statements suggesting she helped Durst cover up the crime. Windham allowed the prosecution team, led by L.A. Deputy District Attorney John Lewin, to take testimony from elderly witnesses early, in case they are not available for trial.

During the first day of the preliminary hearing, in which Windham must decide if there is probable cause to believe Durst murdered Berman, the former chief medical examiner for Los Angeles County described findings from Berman’s autopsy conducted more than 17 years ago.

Dr. Mark Fajardo, now the chief pathologist in Riverside County, ran the Los Angeles coroner’s office in 2015 when Durst was arrested in New Orleans. Fajardo testified that at that time he reviewed the report on Berman’s December 2000 autopsy. The pathologist who conducted that autopsy has retired.

Fajardo said he is certain that the gun that killed Berman was either pressed against the back of her head or was no more than an inch away. A photo of her head wound showed several tears in her skin raying out from the bullet hole, which Fajardo said were caused by the “gas effect,” produced when gases propelled from the gun along with the bullet enter the wound and rip the flesh.

He said the gas effect occurs only when the gun muzzle is touching or extremely close to the victim’s skin.

Another photo showed that Berman had a black eye. Fajardo said it was caused not by a blow but by the force of the bullet smashing into her head and shattering the thin bones near her eye.

Other photos showed a small bruise on her hand and livor mortis, or lividity, across the small of her back and her shoulders, indicating she had lain on her back after death.

Fajardo said Berman’s rigor mortis had dissipated by the time the investigating coroner examined her body on Dec. 24, 2000, suggesting she had died 18 to 36 hours before.

Another witness Monday testified that Kathie Durst was afraid of her husband in the days before her Jan. 31, 1982 disappearance.

Karen Minutello, 70, was the manager of the Upper East Side apartment building where the Dursts lived. She said that on Jan. 25 that year, Kathie Durst called her to ask if there were another apartment available she could move into.

Minutello said Kathie Durst seemed upset and nervous. “She was hesitant, quiet, not speaking in complete sentences,” Minutello recalled. Durst told her she wanted to move out “because she didn’t want to live with Robert anymore.”

Told no apartments were available, she asked if she could move in a roommate to live with her. “She didn’t want to be left by herself,” Minutello said.

A couple of weeks later, days after Kathie Durst vanished, maintenance workers told Minutello that the building’s trash compactor was jammed with the young woman’s possessions. She testified that among the clothes, books, notebooks, makeup and other personal items clogging the machine was a book with Kathie Durst’s name written inside.

“Who does that?” Minutello asked. “A loved one is missing, and you throw out their stuff?”

A third witness, former Los Angeles County forensic scientist Carl Matthies, said he found no saliva or DNA on an envelope containing an anonymous letter that prosecutors believe Robert Durst sent to police after killing Berman. The letter stated simply “cadaver” and gave Berman’s address.

Upcoming witnesses at the preliminary hearing are expected to recount statements from Berman linking Durst to his wife’s disappearance and Berman herself to an attempt to obscure when Kathie vanished.

Durst’s defense team is asking the judge to exclude those statements as hearsay.

Lewin counters that they should be admitted because the only reason Berman can’t testify herself is that Robert Durst killed her to prevent her from taking the stand.

Under the “forfeiture by wrongdoing” exception to the hearsay rule, under California Evidence Code Section 1390, a person cannot object to hearsay if the person intentionally “engaged … in wrongdoing” that prevented the witness who originally made the statements from testifying.

Defense attorney Donald M. Ré of Los Angeles told Windham that to admit the testimony in Durst’s murder case, the judge would first have to conclude that Durst did murder Berman. That would violate the Constitution’s due process and confrontation clauses, the defense contends.

Lewin countered that judges in other jurisdictions have applied the forfeiture by wrongdoing rule to allow hearsay statements from a murder victim, even when the defendant denies killing the victim.

Windham said he was willing to admit the 13 statements identified by prosecutors only for the limited purposes of supporting special-circumstances allegations that Durst killed a witness and that he lay in wait to do so, but not to prove the statements were true.

Lewin said the statements should come in without limitation, but Windham said he did not need to decide that issue for the preliminary hearing.

Further argument and additional witnesses will continue through this week. The preliminary hearing is then set to pick up again on Oct. 15.

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