Durst Aims to Take on ‘Jinx’ Filmmakers as Police ‘Bedfellows’
Durst Aims to Take on ‘Jinx’ Filmmakers as Police ‘Bedfellows’
(Bloomberg) -- Even before his murder trial in January, New York real-estate heir Robert Durst is attempting to hamstring prosecutors with claims that the case against him is tainted by corrupt ties between police and the creators of the 2015 HBO documentary that triggered his arrest.
The first test of that argument is set to come at a hearing Tuesday in Los Angeles, where Durst plans to ask a judge to declare the three filmmakers “agents” of the government for the purposes of the trial over the 2000 slaying of his longtime confidante Susan Berman.
If he succeeds, the trio behind “The Jinx: The Life and Deaths of Robert Durst,” could lose their so-called journalist’s privilege. That could force them to hand over evidence to the defense, such as raw footage of interviews and other research materials. It also could block some evidence -- such as their taped interviews with Durst -- from being used by the prosecution.
The Jinx aired in six episodes and won the 2015 Primetime Emmy for Outstanding Documentary or Nonfiction Series. Police arrested Durst on the eve of the airing of the blockbuster final episode, in which he appeared to confess to murder.
Durst claims in court filings that the filmmakers -- Andrew Jarecki, Marc Smerling and Zac Stuart-Pontier -- collaborated with investigators more than 30 times starting in August 2011. That’s when they began sharing recorded interviews, crime scene photos, expert reports, prosecution theories “and much more,” according to Durst’s laywers.
“Not a single reported case even approaches such an extensive level of government participation” with filmmakers, Durst’s lawyer, Dick DeGuerin, said in one filing. Durst was unaware that the filmmakers and the investigators “were deeply engaged in this joint investigation for years prior to his arrest in this case,” he said.
Prosecutors say that claim is a weak distraction from the overwhelming evidence they have that Durst shot Berman in the back of the head in her Beverly Hills home. He did it to prevent her from telling police what she knew about the disappearance of Durst’s wife, Kathie, in 1982, according to the prosecutors.
Durst was a suspect in Kathie’s disappearance, but was never charged. He managed to dodge a murder conviction in Galveston, Texas, despite admitting he dismembered the body of a friend and dumped it into Galveston Bay. A jury acquitted Durst in 2003, finding the friend’s death was accidental.
While the government concedes for the Berman case that investigators sat for interviews with the producers of The Jinx and met with them repeatedly over the years, they say the filmmakers’ overriding goal was making a successful series and that they waited years to give police crucial evidence they’d uncovered.
DeGuerin portrayed the filmmakers as fanatics obsessed with engineering Durst’s downfall so they could use it to their own advantage.
“Their burning desire to see Mr. Durst prosecuted dovetailed into their goal of enhancing the cinematic appeal of their production,” DeGuerin said in a court filing.
Laurie Levenson, a professor at Loyola Law School in Los Angeles, said Durst faces an “uphill battle” in his effort to strip the filmmakers of their reporter’s privilege because of the “general deference” to First Amendment rights in court.
“If the court were to do that, it would be a disincentive for journalists to cooperate with investigators,” she said in a phone interview. “He would really have to show that they were working under the direction of the government.”
Victor Kovner, the filmmakers’ longtime lawyer, said he’ll “vigorously” oppose Durst’s theory at the hearing. He said Durst is wrongfully trying to undermine the trio’s journalist’s privilege before he can even assert it on their behalf at hearings set for November.
“We were not operating under the direction or the control of the government,“ Kovner said in a phone interview. “They are independent journalists with complete control over what they did. Once they had this deeply inculpatory information about Mr. Durst, they took it to law enforcement. It was a one-way street.”
Crucially, Kovner says, the filmmakers didn’t reach out to police until months after they’d already completed their interviews with Durst. He also said the men had no idea about the timing of Durst’s arrest and weren’t involved with the police plan to detain him.
Durst was arrested on March 14, 2015, the night before the last episode of The Jinx aired. In that episode, Durst is confronted with a crucial piece of evidence -- an envelope that contained a letter he’d sent to Berman. The handwriting on the envelope, and the misspelling of the word “Beverley” -- as in Beverly Hills -- appears to be the same as that on a note sent to police anonymously, which led to the discovery of Berman’s body. (The filmmakers got the letter from Sareb Kaufman, who was raised by Berman and considered her to be his mother.)
In the most dramatic moment of the series, Durst then goes into a bathroom and, apparently unaware that he’s still wearing a hot mic, mutters to himself “there it is, you’re caught.” The episode ends with Durst saying: “killed them all, of course.”
Durst has claimed since his arrest that the filmmakers put together a false narrative to frame him, in the interest of shock value and ratings. According to the raw audio played in court, the words shown on the screen were out of sequence.
The prosecutors argue Durst’s lawyers are misconstruing the history of the production of the documentary. For starters, they say the evidence is clear that the filmmakers waited to hand over the evidence they uncovered, initially planning to give it to police after the 2012 Sundance Film Festival, though that was pushed back.
“They were also definitive that they were not going to be sharing the crucial evidence they had just reviewed from Sareb with law enforcement prior to that time,” the prosecutors said in their filing.
Rather than help the police, the prosecutors say, the filmmakers used their knowledge of the Sareb letter as leverage to try to get an LAPD detective to give them access to the anonymous letter tipping off the location of Berman’s body, as well as the shell casing, as part of their “independent goal of making an interesting film.”
DeGuerin rejects that characterization, noting the timing of Durst’s arrest just before the last episode aired -- timing that prosecutors say was a coincidence.
”This case was brought because of a TV program that was designed to win an Emmy, and it did,” DeGuerin said in a phone interview. “It wasn’t designed to get the truth.“
The case is People v. Durst, SA089983, Los Angeles County Superior Court.
To contact the reporter on this story: Erik Larson in New York at elarson4@bloomberg.net
To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Joe Schneider, Peter Blumberg
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