With no weapon or witness, a California prosecutor who has won more than a dozen cold cases must prove that Mr. Durst killed a confidante 17 years ago.
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| © Los Angeles Times John Lewin of the Los Angeles County district attorney’s office has won convictions in over a dozen cold cases. Now he has Robert Durst in his sights. |
By CHARLES V. BAGLI, The New York Times
LOS ANGELES
When Robert A. Durst was asked why he had talked to the makers of “The Jinx” — the 2015 HBO documentary about the suspicions that had dogged him for years over the untimely deaths of his first wife, a close confidante and a cantankerous neighbor in Texas — he said he had thought it was low risk.
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It was unlikely, he said, that any prosecutor would “commence a major, budget-busting investigation” for a couple of cold cases.
But shortly before the last episode was broadcast, John Lewin, a deputy district attorney in Los Angeles, proved Mr. Durst wrong. Mr. Lewin, who has a long record of winning guilty verdicts in cold murder cases, had him arrested in New Orleans.
Mr. Lewin would eventually charge Mr. Durst with the execution-style murder in Los Angeles in 2000 of his confidante, Susan Berman. Preliminary hearings in the case were held in a courtroom here last week.
The prosecution contends that Mr. Durst, the alienated scion of a New York real estate family, killed Ms. Berman with a gunshot to the back of the head to prevent her from revealing her role in helping him cover up the murder of his first wife, Kathie Durst, to investigators who had reopened that case.
In a sense, Mr. Lewin must prove two cold cases, not just one. “It is important to understand that all of the defendant’s subsequent criminal conduct can be traced back to his original killing of his wife Kathie decades earlier, and his subsequent efforts to avoid criminal culpability for her death,” he said in court papers.
Mr. Lewin, who declined to be interviewed for this story, has talked to virtually every witness in the case, which covers 40 years and has a cast of dozens. During court hearings over the past year, he has displayed an encyclopedic knowledge of Mr. Durst, his history, his friends and his alleged victims.
Mr. Lewin has conducted punishing examinations of Mr. Durst’s friends and even of the now-retired detective who first looked into the disappearance of Ms. Durst.
“He’s a pit bull,” said Kathie Durst’s brother, Jim McCormack.
There is little doubt by either side that the hearings, which adjourned after four days of testimony and argument, will conclude in October with Judge Mark Windham binding Mr. Durst over for trial, starting probably early next year.
But that does not mean that Mr. Lewin has a clear path to another guilty verdict. Mr. Lewin and his colleagues will still have to contend with hazy, in some cases 40-year-old memories; the lack of the weapon in Ms. Berman’s shooting; and the absence of a body or even a crime scene in the disappearance and presumed death of Ms. Durst, for which no one has ever been charged.
Mr. Durst, 75, frail and worth $100 million, has said repeatedly that he did not kill his first wife, nor does he know who killed Ms. Berman. And despite the certainty of a trial, Dick DeGuerin, the Texas lawyer who leads Mr. Durst’s defense team, insists that the prosecution has still not proven that Mr. Durst killed either woman.
As for the hard-charging prosecutor with whom he has repeatedly clashed, “He’s a bully, but that’s not unusual for prosecutors,” Mr. DeGuerin said of Mr. Lewin. “And he’s not used to people standing up to him.”
Both sides have already invested an enormous amount of time and money in the case. Mr. Durst’s defense is expected to cost well in excess of $10 million, according to two people briefed on the matter who requested anonymity because they were not authorized to discuss it publicly.
Mr. Lewin, 54, looks like an out-of-shape football lineman with a modified crew cut. He tells jokes at his own expense one minute and rails at the defense the next. But he is always about the case.
“I’m like the sloth,” he told Los Angeles Magazine, referring to the mammal that spend most of its time hanging upside down in trees. “I have this one skill.”
Since he won his first cold case in 2002, Mr. Lewin has stacked up 16 guilty verdicts or pleas, the magazine said.
His first cold case resurfaced this year when a state panel ruled that William Bradford, whom Mr. Lewin successfully tried for the murder of his wife after the case lay dormant for 12 years, and who is now 84, deserved parole, a move that Mr. Lewin vehemently opposed.
Mr. Lewin’s decision to pick up the Berman case was propelled, in part, by the producers of “The Jinx,” Andrew Jarecki and Marc Smerling, who brought the authorities what they believed was new evidence about Ms. Berman’s murder and the disappearance of Ms. Durst.
On Dec. 24, 2000, the police found the body of Ms. Berman, a sometime screenwriter, in her Benedict Canyon home in Los Angeles, shot in the back of the head. Someone had sent a note to the Beverly Hills Police Department alerting them to a “cadaver” at the address.
Suspicion quickly passed from Ms. Berman’s landlady to her manager before landing on Mr. Durst. But once again, little came of it.
In interviews with “The Jinx” producers, Mr. Durst admitted that he had lied to police in 1982 about his whereabouts at the time his wife disappeared and described how his marriage had become a series of “half arguments, fighting, slapping, pushing, wrestling.”
In a scene depicted in “The Jinx,” Mr. Durst could not distinguish between the handwriting on the envelope of the “cadaver” note, which misspelled Beverly Hills as “Beverley,” and a note he had sent to Ms. Berman with the same misspelling.
The documentary ended famously with Mr. Durst muttering off camera, “What the hell did I do? Killed them all of course.”
Mr. DeGuerin has dismissed the documentary as a Hollywood concoction.
After having Mr. Durst arrested on a murder warrant and gun charges, Mr. Lewin hopped a plane to New Orleans and managed to interview him for three hours before he was arraigned. In the interview, Mr. Lewin complimented and cajoled Mr. Durst, suggesting he would never be a free man, although he might be able to negotiate a plea.
The defense challenged the interrogation as “improper and deceptive.” Mr. Lewin responded angrily in a brief to what he described as “baseless allegations,” along with a video and transcript of the entire encounter.
With no witnesses and no murder weapon, Mr. Lewin has been building a case out of tiny puzzle pieces. He may have set a record for the use of what are known as conditional hearings, in which a prosecutor can question witnesses 65 or older who could die or become ill before trial — he brought 20 witnesses to the stand for them. A judge must determine whether any of the testimony is admissible at trial.
In response to a 12-page motion from the defense to exclude any statements Ms. Berman allegedly made to her friends as hearsay, Mr. Lewin responded in March with what has become known as “Big Boy”: a 77-page brief accompanied by 316 pages of exhibits.
At times, the space between the defense and prosecution tables has crackled. Mr. Lewin once made a remark about “these lawyers being paid millions of dollars.” It was not long before Mr. DeGuerin bounced back with a crack about Mr. Lewin driving a Porsche.
Mr. Lewin’s full-court press has occasionally rankled Judge Windham, particularly when he continues to argue a motion after the judge has ruled in his favor. “You’re interrupting my thinking,” the normally Zen-like judge said at one point last Thursday. “Please be quiet.”
The prosecution scored two victories last week when Judge Windham ruled that he would accept testimony from 13 friends who say Ms. Berman confided to them that she assisted Mr. Durst in the cover-up and had been expecting him to visit her around the time of her murder. The judge also accepted testimony and records concerning incidents of domestic violence in the Durst marriage, pending challenges by the defense.
Karen Minutello, the former manager of the Manhattan building where the Dursts had an apartment in 1982, testified during last week’s hearing that Ms. Durst had called her shortly before her disappearance, saying that she was looking for another apartment in the building because “she needed to get away” from her husband.
A week after Ms. Durst disappeared, Ms. Minutello said, she saw the porters pulling her notebooks, textbooks, makeup and clothing from a jammed trash compactor in the basement of the building. Ms. Minutello determined that it had all been shoved down the chute from the Dursts’ 15th-floor apartment.
“Who does that?” Ms. Minutello said. “Their loved one missing and you throw out their stuff.”
She said she expected to be questioned by the police. She “always expected them to” call, she went on, “and they never did.”
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