Attorney Elizabeth Kase says law school classes could be designed around the legal issues raised by "The Jinx" and Robert Durst's apparent confession to several killings. Durst was arrested Saturday in New Orleans, the day before the finale of “The Jinx,” which is based on interviews with him. On the last day of shooting, Durst reportedly forgot he was wearing a wire and was recorded talking to himself.
“There will be a year of conversation around this," said Kase, a partner at Abrams Fensterman and co-founder of the firm’s mental health-criminal law hybrid practice. “You could design a law school class around this case alone or base an entire bar exam on these facts."
Durst waived extradition Monday and will be tried for murder in the death of close friend Susan Berman. On Sunday's "Jinx" finale, he seemed to confess: "What the hell did I do? Killed them all, of course."
Kase talked to International Business Times about the Durst case and the issues it raises: What constitutes admissible evidence, whether Durst had an expectation of privacy when he spoke into a wire in the bathroom when the interview was over, and whether “The Jinx” director and producer were required by law to hand over their evidence earlier.
International Business Times: Durst's "confession” is very ambiguous. In speaking to himself, he also seems to be speaking in the voice of others talking about him. Can defense lawyers use this ambiguity to their advantage?
Elizabeth Kase: Yes, they can. The first line of defense will be to move to have it suppressed. We don’t know if he had a contract regarding the ownership of the recorded material with HBO. We don't know if he signed a release giving up his rights to the material. Regardless, HBO is not a state actor working with law enforcement. They don’t have the same level of scrutiny in the logistics of how and why an individual was recorded as the police. Here you presumably have a consenting person who is aware that they are being recorded. Not only aware -- he’s part of a miniseries! But then by contrast, was there an allowance for privacy within their agreement? Did they need to take off the wire? If there was a contract, there might be something in it that may be an angle for suppression of his statements.
As a defense lawyer, I could ask, is it an authentic tape? Is that really him on the tape? There could be psychological analysis: Is what he said taken out of context? It sounds like he’s speaking in the voice of many people. Perhaps there is a psychological analysis that would refute its reliability for accuracy.
IBTimes: Is this “confession” caught on tape admissible in a court of law?
Kase: The next aspect to examine is whether the statement is admissible in criminal court as a statement against penal interests -- an exception to hearsay. We have to ask, what were the circumstances surrounding his statement? No one asked Durst a direct question prior to his statements. Maybe he's mentally ill. We're all watching this case very carefully.
There’s a similar case involving Etan Patz [who disappeared in 1979 at age 6] and Jose Ramos, a known pedophile, who has confessed to killing Patz. There’s a question about whether his confession has any legal weight because of his mental illness. But the Durst case is different. The prosecutor could say, He’s the puppeteer; he knows what he’s doing.
IBTimes: What is the statute of limitation in a murder case?
Kase: There is no statute of limitations for murder in New York.
IBTimes: If forensic evidence is gone, can the prosecution still build a case?
Kase: There can still be a circumstantial case. Law enforcement has been circling around him like buzzards for years. Arguably they did not want to bring the case too soon without enough evidence of guilt as jeopardy would attach.
IBTimes: What would be considered powerful circumstantial evidence?
Kase: Let’s look at the circumstantial evidence in the Texas case [in which Durst was acquitted of murder in the dismemberment death of elderly neighbor Morris Black but served time for jumping bond and evidence tampering]. They looked at the actions of the defendant, how he was dressed. He was hiding out as a mute woman. He killed a neighbor.
IBTimes: There’s speculation that director Jarecki and producer Smerling withheld damning information against Durst from the authorities for their finale. What would you say about the legality or ethics of that?
Kase: They said that they wanted to protect their sources. There was the financial element [they had a documentary to produce for HBO]. But you have to ask, was it all breaking news for the finale? The ending is a bit too Hollywood -- even Shakespearean -- or perhaps law enforcement was wary that Durst would flee and arrested him out of an abundance of caution.
IBTimes: But does that affect the substance of what was eventually revealed?
Kase: If I’m a defense attorney, it’s suspicious. I could ask, is it a fabrication? Grandstanding? A case built for the finale? I’d go through each allegation, motive, look at each piece of evidence to see if it made for great TV but not admissible evidence. HBO can't unring that bell. They are now potential witnesses. However, they are not trained law enforcement. Certainly, law enforcement will subpoena HBO's documents and records surrounding the Durst production. It will be interesting to see how HBO responds to those requests.