LOS ANGELES (CN) — A Los Angeles judge on Tuesday rejected an attempt by defense attorneys for accused murderer Robert Durst to strip the producers of an Emmy-winning documentary series about Durst’s alleged crimes of protection under California’s journalist shield law by having them declared “government agents.”
Had his attorneys succeeded, they presumably could have forced the filmmakers to turn over raw footage, documents and other material they gathered while making the six-part HBO series “Jinx: The Life and Deaths of Robert Durst.”
Ruling on what he said was an issue of first impression, Superior Court Judge Mark E. Windham found that Durst’s defense team had not succeeded in showing that the filmmakers and their production company, Hit The Ground Running, became so entangled with Los Angeles law enforcement while investigating the case that they should be treated as government agents.
The issue was one of several to go against Durst during the daylong hearing in Windham’s court, including a defense motion to kick the chief prosecutor, Deputy District Attorney John Lewin, off the case for being so deeply involved in the years-long investigation that he might have to be called as a witness.
Durst is to go to trial in January for the execution-style murder of his best friend, Los Angeles writer Susan Berman. Lewin and his team believe Durst killed Berman to keep her from giving New York investigators evidence that he had murdered his first wife, Kathie Durst, back in early 1982.
The “Jinx” series delved into both cases, as well as a third in which Durst was acquitted on self-defense grounds of killing a neighbor in Galveston, Texas. He did serve time for dismembering the body and dumping it in the bay.
Durst was arrested in connection with Berman’s death on July 15, 2015 — just one day after the final episode of “The Jinx” aired on HBO. At the end of that final episode, Durst is heard muttering to himself on an accidentally open microphone that he had “killed them all, of course.”
The filmmakers — Andrew Jarecki, Marc Smerling and Zac Stuart-Pontier — started developing “The Jinx” in early 2011. By August that year, they were talking with Los Angeles police and prosecutors.
In a motion, Durst’s defense team, led by Dick DeGuerin of Houston, argued that the filmmakers and the police “consulted, coordinated and collaborated” so closely that they formed a “symbiotic relationship,” converting the filmmakers into government agents. The producers not only gave the police and prosecutors multiple advance screenings of their work, they even put together a PowerPoint presentation for them — at prosecutors’ suggestion — about why Durst should be charged with Berman’s death, the motion states.
Windham initially said on Tuesday that he did not have the authority to “declare” the filmmakers to be government agents absent the context of a specific discovery dispute. But he relented after Lewin and the filmmakers’ attorney, Victor Kovner of New York, argued that a decision now would save time later in the case.
Windham then said he could rule by treating the motion and Kovner’s response as early discovery motions.
Arguing in Durst’s defense, Chip Lewis of Houston said the question of whether a third party has become a government agent turns on whether the third party is acting with the intent to assist law enforcement. For the filmmakers, several statements from Jarecki and others showed just that, he said.
“It went from being a movie to being more of a mission, the mission being seeing Mr. Durst charged in this case,” Lewis said.
In one crucial example, Jarecki and Smerling came upon evidence tying Durst to an anonymous letter that alerted Beverly Hills police to the location of Susan Berman’s body. Printed in block letters, the note and envelope misspelled Beverly as “Beverley.” The filmmakers found a letter Durst had earlier sent Berman printed in matching block letters and addressed to her in “Beverley Hills.”
Lewis complained that the filmmakers not only gave the letter to police but pointed prosecutors to their handwriting expert.
But Kovner and Lewin countered that all Lewis had shown was that the filmmakers communicated with law enforcement and that they passed on certain information in hopes of getting information in return.
To show that Jarecki and his team were government agents required showing that the police and prosecutors “directed and controlled” the filmmakers, they said.
“Has he come up with any evidence of government control?” Kovner asked. “There isn’t any.”
And, he said, the communication between the filmmakers and police was appropriate. “California policy is to encourage people to talk to law enforcement when they have any evidence of criminal activity,” Kovner said. That policy includes journalists, he added.
Lewin said the defense simply “wants a chance to go fishing” for information in Hit The Ground Running’s files.
Windham said that even though the question of an alleged government agent’s privilege as a journalist was a new one, he could use the reasoning and standards laid out in cases dealing with whether alleged agents violated suspects’ constitutional rights. Under those standards, he ruled, the defense motion failed.
In another portion of the day’s hearing, a second judge, Superior Court Judge Upinder S. Kalra, affirmed Windham’s decision after a preliminary hearing to bind Durst over for trial on the murder charge and on allegations of special circumstances for lying in wait and killing a witness.
The prosecution is not planning to seek the death penalty against Durst, who is 76 years old and frail from cancer and other health problems.
Lewin set another hearing on discovery and other matters for Oct. 28.