Get Even More Visitors To Your Blog, Upgrade To A Business Listing >>

Robert Durst Case, Pretrial Hearing 1

UPDATE NOTE 2:15 PM - Editing of entry for spelling/clarity later tonight. Sprocket.

Friday January 6, 2017

8:25 AM

I'm here at the Airport Courthouse for a pretrial hearing in the Robert Durst case. Robert Durst is charged with the December 2000 murder of his long time friend, Susan Berman. Berman was found dead in her Benedict Canyon home from a single gunshot wound to the back of her head. Durst was charged in her murder in March 2015 after the final episode of the HBO documentary, The Jinx.

Although I sent notice that I planned on attending the hearing, there is no guarantee I will get a seat.

8:33 AM
Security station has changed at the courthouse.

I see KFI's Eric Leonard enter the cafeteria and get a coffee or tea before he heads out.

10:03 AM
Waiting in the media line

DeGuerin arrived earlier. Huge prosecution team arrived at last minute. Waiting on courts other matters to finish. 20 reporters in line. We've been ordered to fill the first two rows.

Terri Keith is ther Miriam Hernandez is here from local ABC. Matissa Gerber from the LA Times, Andrew Blanksiein and Robert Dean from Datline, Reuters, Daily News, CNN, TMZ and others are here.

Fox News !! is here. Almost forgot, People Magazine's  Christine Pelisek, who broke the Grim Sleeper case is here. She's writing the book on that case.

The court's Public Information Officer is counting heads. The media cameras are already being set up inside. I think the LA Times has the pool still camera.

Inside Dept. 81W Judge is on the bench. We are crammed into tight folding down seats. There are about 22 reporters or more.

The Judge's bench is in the far left corner, the witness box is in the center and the jry box is on the right. Exactly like the courtroom in the Dawn DaLuise case that was held in this courthouse.

DeGuerin is at the defense table with another older gentleman. On the prosecution team is John Lewin, Habib Balian, and another prosecutor I recognize but I don't know his name.

Clerk asks, "Counsel ready?"  I hear "Yes."

The bailiff goes to retrieve Durst.

10:23 AM
The back row is filled with young fresh faces, most likely interns with the DA's office.

Case is called. Durst is wheeled in backwards in a wheelchair. Now turned around . He's in a suit.

Appearances please.
David Chesnoff {sp?}
Durst is

Lewin is naming his team. Dave Yesoosky and

Here today to discuss conditional examinations. People have asked that for two examins on Feb 14 and two more. Court want's to focus discussion.

Allows either party to have conditional examation if witniess is 65 years of age or if the witnesse life is in jeopardy. Law reqires the name of the witness and address.  There may be other circumstances but thsoe are the ones there.

Penal code calls for three days notice of the hearing. Court must set time and place.
Court reads the law governing conditional testimony.

The peole have field a single applicaiton for just one witness and that is Dr. Albert Cooperman and the applicaito  states that Dr. Cooperman is over the age of 65. People provided discovery for this sometime in November.

Defense is objection to any conditional examinations.
Court has read all moving papers.

Your honor, the ocurt has said that ... I thin that the prosecution has misinterpreted  the statute. .. He would like to have cocounsel to address the court. Mr. Cheznoff, is capable of speaking on his own.

Cheznoff. as experienced counseld we are not in thehabit of trying to cread issues that dontl exist. This is a unique situation ad that's . Just going to add a few things. in esses the St aof Calf has had over a ecade to prosecution this case. The inital statements of this case... the investigation was not done very well. Mentions The Jinx. We've had all these years and all the discovered and weve only recently received discovery i nthis case and it's volumunous.

These are provisional witneses for tiral and we havent even had a prelimnary hearing yet.
Why should we have a trial [of these witnesses] when we haven't even had a preliminary hearing yet.

Mentions the big media interest of the case balanced against the rights of the defendant. They don't understand the state's theory. They have a idea they are going to try three murder cases one which he's been acquitted of and one he's never been charged with.

Talks about witnesses being taken out of order... and bias. Suggest to the court that prelim be set and that we do preliminary hearing that we not have secret witnesses and secret hearings. We know that the witnesses are over 65 but we don't know what the alleged threat is.

Mentions the defense experience with Federal work and Federal judges and how things go on in Federal court. Only ask this proceeding in a orderly way, so that we can examine these witnesses in an orderly way.  Now talking about future events and the potential make up of the jury.

Complains about inflammatory things being said in the pleadings. Complains about ex parte meetings with the judge. "If the purpose of the ex parte was to keep something secret, ...."
Mr. Durst is in custody .Mr Durst is in a whelchair. All his coversations have been lisnented to, and that somehow he poses a thread, witout knowing what it is that was  threat makes it imperative that you appproach most cauciously.

John Lewin.
Hope the court will indulge me me. I don't know what steps can we take. That the court ... I can barely hear Lewin.

We are her to dfor one reason to set the conditional examination. We're not here to bring up my interview with Mr. Durst. We/re not here to talk about other issues. We're here for one issue only.

Defense said lset set up preliminar hearing.  I have emailed them no less than 30 time.s I've asked for dates for preliminary hearing when they will be ready and the response I've gotten is, I don't know.

Lewin, a lot of logistics, a lot of information. If they can't be prepared in one month for one witness, how are they going to be prepared for a complete preliinary hearing.

Defense has talked about the rules of application. I'm not aware of any case that says when discovery is to be provided. ...

1335 would require that these intentional examinations could not be done prior to preliminary hearing. That's completely wrong. It can.

The defense is taking the approach that [they] can't be ready for anybody. Lewin argues for conditional examination.

Durst is wearing a blue striped shirt.

Dr. Cooperman. is basically talking about one issue in this case. They are well arware of Dr. Cooperman. The case in Galviston in 2003, .... The defense were intimately aware of the points od Kathey Dursts death. Dr. Cooperman allegedly received a phone call from Kathy Durst. That phone call took place in 1982.

We believe that call was made by Susan Berman. That man kills witnesses. That's what he does. That's what he did with Morris Black.  Back to Dr. Cooperman, that was his sole involvement in his case.

We have five, well paid, nationally known lawyers in this case. There are others that are working on this case that are not coming to court.

Lewin goes over the amount of material that the defense would have to go over, to prepare for Dr. Cooperman. He mentions a few documents. A one hour interview which was taped and the transcript. That's approximately the complete discovery. And we are told that they cannot be prepared. I'm going to describe this very charitably. The defense arguments have to have a distant relationship with the facts.

Lewin reads from a defense Email about questioning Dr. Cooperman. Lewin documents his communication with the defense about witness Dr. Cooperman. In December, he got a call from one of the defense lawyers, asking where the interview transcript of Dr. Cooperman was in discovery. The idea that we are hiding discovery ... they've been given 150,000 pages of discovery. The idea that we are somehow not turning over discovery, doesn't even pass a cursory review of the facts.

Dr. Cooperman is 85 or 86 years old. The defense is in no hurry to protect damaging discovery in this case.

In thier motion they mention that there are numerous "secret witnesses." There are two The court knows of both. We made an ex parte motion to the court, where we detailed the reasons why in the process and the manner reviewing it. The court found good cause and approved of what we were doing. Lewin states, I cannot tell them who the secret witnesses are but I can at least tell them the dates. We have bent over backwards in every way possible."

Lewin tells the court about helping the defense getting into the jail to see their client on a weekend.

We originally filed our motion regarding our special master, I only put in the transcript, the limited part, that Mr. Durst unequivocally waived. The defense responded to that, accusing me of improper and deceptive tactics. They did that, knowing they had that tape and transcript for months.

Lewin goes over the timeline of events of defense motions filed and the claims that the defense has made against Durst's frailty and not a threat to anyone.

Numerous conversations with defense about the admissibility of the Morris Black case and the standard for admissibility. Lewin states that they have evidence contrary to the [fact?] that it was murder and not self defense.


The defense is well aware of all these issues with respect to what we put in our motion because they know why he was arrested in the Galveston case. They knew before they filed their motion, they knew exactly why Robert Durst was a danger. They come back with, well, he's frail. I talk about Susan Berman, I talk about Morris Black.

And this was chilling. Lewin goes over the events where Durst was arrested for Black's murder. He tells the security guard that he has to go to his car to get money. Durst makes another request to go to his car. Worried, she calls the local police. When the local police get there, Mr. Durst asks to be taken to his car, so he could get his ID from the glove compartment. This was very suspicious. They would not do it. That was a good thing. What was waiting in the glove compartment, was loaded 38.

Lewin argues, why, did Durst, who had money on him, continually ask to be taken to his vehicle where there was a loaded gun. Now discussions about another witness who testified, now deceased, where Durst showed up on her street dressed as a woman. ... Vernon Lajame, is a person he hold responsible for pushing the investigation into his missing wife.

When the defense said that Durst wasn't a danger, the defense did not address any of these issues in their motion. This is a man who has shown the ability and the desire to harm any witness in his way. We have two secret witnesses. The court has heart this information. The idea that the defendant's rights is being infringed, is absurd. It doesn't become relevant until one of those witnesses doesn't become available.

Lewin continues to argue to get the witnesses statements on the record before preliminary hearing.  Lewin adds that they got the defendant's last motion, and he had to laugh, and it's talking about his interview with the defendant and that it was improper. That interview does need to be litigated as to be a part of the attorney client privilege. We filed our motion yesterday as to why that intervew was legal and proper. Need hearing dates for when those issues will be litigated.

Lewin states that the defense has everything regarding all witnesses that will testify at the preliminary hearing. Lewin then tells the court that they Miriam Barnes ... This was a witness they found out about when they read the article in the NY Times. they are also possibly wanting to conditionally interview her as well.

Rafael Prado, they are also requesting to conditionally interview him also. He is not 65, but he is being treated for cancer. His testimony is relevant as to whether Kathy Durst ever made it back to her [condo] in 1982. Lewin states they will disclose on January 31, on secret witnesses. After these witnesses testify, then if defense wants to set case for prelim, then we could do witnesses at preliminary hearing.

And I said this to the court when I asked ex parte. I never said they should be ready in two months. What I do expect, if you aren't ready and you know that you're not going to be ready, then notify the court and the defense.

Lewin states that if defense is ready by a particular date, then they would not need to do the conditional examinations. We need to calendar the attorney client waiver motion.

Lewin wraps up his arguments.

Mr. Cheznoff, you can reply.

We have 150,000 pages in documents, we can't possibly be ready for trial, we have secret witnesses, and that Mr. Lewin says his interview with Mr. Durst is okay. He's disparaged the Galveston law enforcement and DA ... Mr. Lewin's constant request that we fit his schedule or as to how he things things should go along ... except that we need to do this and this on this date.

Complains that they will go into the disappearance of his first wife. It's whether or not that Ms. Berman was going to be a witness or not. We can't be ... when I said Alice in Woderland, when we go down one rabbit hole we [come out another place]. ... You're honor I ask you, let's proceed in an orderly pace. He told you that they most likely will be available for trial.

Continues to argue for Durst for due process. There must be order. We have to be able to have time to share ideas and to study. Now asks that Mr. Deguerin to address the Galveston accusations.

DeGurein, I will try to address this without any ad hominen comments. I was there. We have something close to your 1101b. And that is, if you can't prove something, you can't present it. Prosecution conceeded that Mr. Durst had anything to do with the disappearance of Kathy Durst, much less that she had been killed. The prosecution also conceded, .... [explains who the prosecution atorneys were] ... They also conceeded there was absolutely no evidence that Robert Durst had anything to do with the disappearance of Kathy Durst. We actually went into that. We explain why Mr. Durst ended up in Galveston in disguise.  ... The other part about Galveston that I was there for, ....  is Mr. Durst's arrest in Pennsylvania at the Wegman's store. .... And that testimony doesn't amount to much.  We went through a hotly contested trial and 12 jurors ...  [concluded] that Mr. Durst was not guilty.

DeGuerin argues the 1101b compared to Texas 404 law. DeGuerin talks about conditionally examination of witnesses, when the purpose is to use that testimony at trial. ... Apparently they have everything in regards to Dr. Cooperman ... it's the other conditional, secret witnesses. They have withheld ... we don't know how much ... a number of files on these conditional witnesses.

And not to [?] another ad hominen, and we've been told, there are eight to ten, not two secret, conditional witnesses. So that's why we are opposing.

I can see a smile on Balian's face as DeGuerin argues to the court. He now brings up the three hour interview of Mr. Durst. It happened when he was in the air, flying to meet with Mr. Durst. Mr. Durst called his lawyers from the jail, before that interview. The prosecuiton had copies of the telephone calls, to his lawyers, before they went to talk to him in the jail .We think that needs to be litigated. One party should not go talk to the other side when they know he's being represented. We think that needs to be litigated. ... That was also improper. ... But that doesn't need to be spread in the public before hand. It was filed and it was available. The video and audio were filed. The media had it immediately. ... What we learned and they disclosed it to it. The media office made copies of those videos and audio and supplied it to the media. And that's what happened. I don't think that needs to happen in the future. There's a lot of things that are very favorable to Mr. Durst, that's in the discovery. And we could do that. [But we refrain from doing that.] We don't think that what's out there in discovery should be spread out there. .... before we ever get to trial.

We've gone way beyond what we are here today which is conditional witnesses. We need to know the identity of those witnesses .... before we go to trial. .... And the discovery that goes with those witnesses. ... We don't want to be shadow boxed. We don't what to know without knowing the prosecutions position is.

To follow the prosecution's theory ... the danger here. ... The first presumption is Kathy Durst, and there's no evidence [Durst had anything to do with that]. Talks about what happened in Galveston when that was put to the court.

Next presumption is if Kathy Durst is dead and or he had anything to do with that, then he killed Susan Berman. Ther'es no evidence of that. Then next presumption of that is ... that he covered up. ... When Kathy Durst first disappeared, ... Susan, being a writer, took responsibility for answering press inquiries. .... Then the presumption that Susan Berman covered up something. Then the next presumption is that Susan Berman contacted authorities [regarding Kathy's disappearance] and covered up something. .... This is when the investigation heated up again. ... There's no one from [the NY investigation] ... no one contacted Susan Berman. That's a fact.

DeGuerin, continues with his list of presumptions of the prosecution's case. Now mention's Susan Berman's father and his supposed Mafia connections.

DeGuerin talks about the secret witnesses and the [objectie?] of fear.

Thank you so much for providing so much context. First let's talk about the application that's pending, conditonal examination of Dr. Cooperman. People have demonstrated that witness is over 65. Discovery was provided in November. Not unreasonalbe to sechedule examination for him.

As for the second, unidentified for him. I have no applicaiton regarding this witness. I think the suggesiton may be this witness may be in jeopardy. Although I don't have three days notive for that, it's in substantial compliance. It's a witness is a material informaiton about the case. And the people state that he is also over 65, and that Mr. Lewin states he is also over 65, won't get into whether his life in si jeopardy, he is over 65.

There is no case law on discovery, mentions case law People v. Herado, conditional exam done 2.5 years before trial. Reason for that was interragatory appeal. Court approved delay of discovery until seven days before that hearing.

People there argues the defense has not right to discovery.  Assumes there is a right ot discovery, and also assumes there should be limitations under 10.4.7. Here, I'm concerned with this idea of "secret" witnesses. Court mentions another case Alvarez, where witnesses remained secret throughout the trial. Mentions US vs. Edwards, witnesses could not remain unidentified throughout trial, but discovery was limited. ... I did receive a showing, exparte, of two additional witnesses. It's similar to what was described to people's the opposition. If you look at pages 3-7 and the declaration ... it all applies to other witnesses. That was the supplemental in camera.

The standard of 1054.7 is to possible danger to witnesses. Court mentions another statute regarding life in jeopardy, danger.

The problem is that the defense ability to contest [the evidence]. I don't easily allow a showing ex parte, I don't automatically accept it. There was a showing prima facia, .... the standard is possible danger, and it seems that it's only reasonable that there is a danger as described by Mr. Lewin in his moving papers.  ... there was evidence presented and there is evidence of a possibility of danger. And I need to balance the defendant's right ... with the safety of witnesses. And it's twofold. ...

The court continues to argue the weighing factor and cites the rulings he's relying on in his ruling.  Mentions one case as well as Alvarado.

This post first appeared on Trials & Tribulations, please read the originial post: here

Share the post

Robert Durst Case, Pretrial Hearing 1


Subscribe to Trials & Tribulations

Get updates delivered right to your inbox!

Thank you for your subscription