The murder trial of multi-millionaire Robert Durst resumed Monday without the defendant present and with arguments about whether the case should continue after a rare 14-month recess.
Judge Mark Windham questioned jurors in Los Angeles County Superior Court to see if they can complete their assignment that was interrupted in March 2020 during the pandemic. If so, it could be a first for the U.S. legal system.
“So, where did we leave off?” Windham said as jurors laughed.
The length of the stoppage is unprecedented and it’s the highest-profile U.S. case postponed because of the pandemic, Durst’s lawyers say. They have repeatedly – and unsuccessfully – sought a mistrial because they argued the delay harmed his chance of a fair trial.
Durst, 78, an heir to a New York commercial real estate empire, has pleaded not guilty in the killing of his best friend, Susan Berman, at her Los Angeles home in 2000.
Windham, wearing a black mask, approached the 22 jurors – one fewer than before the recess – and addressed the many losses of the pandemic.
“You’ve likely had losses or like me know people that have lost loved ones,” he said.
He asked jurors if they had seen stories about the case or discussed it with anyone during the break and if they had any health concerns or hardships that would prevent them from serving another four to five months.
After speaking in chambers with nine jurors, Windham dismissed one from service, leaving 21 on the panel that is scheduled to hear a new round of opening statements Tuesday.
Before the jurors returned to court, Windham denied a defence request to suspend the case further because Durst has bladder cancer and myriad other health problems that require hospitalization.
“The question isn’t whether he can endure the rigors of the trial,” attorney Dick DeGuerin said. “It’s whether he can survive at all.”
Deputy District Attorney John Lewin scoffed at claims Durst needed to be released to a hospital for treatment, saying he was getting high-quality care at the jail, where he is being held without bail.
“It’s a get out of jail free card,” Lewin said. “The goal here is simply to have this trial go away.”
Durst was not in court because he refused to leave the Los Angeles County jail, Windham said. DeGuerin questioned that account, saying jailers had previously failed to get Durst and inaccurately reported he was “wilfully absent.”
DeGuerin said measures taken to prevent the spread of the coronavirus would harm Durst’s defence by keeping his lawyers scattered throughout the courtroom and unable to confer. Windham said the measures were required to keep everyone safe, though he and all the lawyers have been vaccinated.
Windham moved the case to a larger courtroom in Inglewood to accommodate the distancing needed to resume.
The lead lawyers were seated alone in the front of the courtroom and their co-counsel were spread throughout jury boxes on both sides of the courtroom. Plexiglas panels were placed between the lawyers and a court stenographer.
Jurors were handed zip-lock bags with note pads, a mask and tissues as they entered the courtroom and took seats in the gallery.
Prosecutors say Durst silenced Berman before she could tell police she helped him cover up the killing of his wife, Kathie, in New York in 1982.
Durst, who is worth more than an estimated $100-million, is only charged with Berman’s killing but prosecutors are using his wife’s disappearance and a neighbour’s slaying in Texas to build their case against him.
He was acquitted in the Texas case after he testified he shot the man in self-defence. Prosecutors say he killed Morris Black because Durst was in hiding and the elderly neighbour discovered his identity.
He has never been charged in his wife’s suspected killing and has denied any role in her disappearance.
Prosecutors in Westchester County, New York, said Monday that they were reviewing the killing of Kathie Durst as one of several unsolved homicides.
During opening statements in Los Angeles last year, defence lawyer Dick DeGuerin, who defended Durst in Texas, said Durst didn’t kill Berman and doesn’t know who did. But he said his client had found her body, panicked and bolted.
Durst sent police a cryptic note alerting them to a “cadaver” in the house only to ensure she would be found, DeGuerin said. Durst had long denied penning the note.
Durst was arrested in New Orleans in 2015 on the eve of the final episode of The Jinx: The Life and Deaths of Robert Durst, an HBO documentary in which he was confronted with the cadaver note and a letter he once sent Berman with the same block print handwriting and the city of Beverly Hills similarly misspelled “Beverley.”
Before being shown the letter he had written to Berman, Durst told the filmmakers that only the killer could have written the cadaver note.
After the “gotcha” moment on camera, he was caught on a hot mic saying to himself in a bathroom, “You’re caught! What the hell did I do? Killed them all, of course.”
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