Robert Durst Confession

Watching “the Jinx” on HBO was certainly on my list of things to do. Indeed, I knew about the story and I wanted to see it, but I kept putting it off for when I had more time. Then over the course of this weekend, Robert Durst got arrested for the California killing of Susan Berman and I got a news alert for quite possibly the biggest spoiler alert in recent history from the New York Times. So I sat down and plowed through the series. From a criminal law standpoint, it’s obviously fascinating. I am annoyed at myself for not watching it sooner. In any event, for those that don’t know (SPOILER ALERT), Robert Durst basically said he committed all three murders when he thought he was off camera. He was still on microphone though and the apparent confession was recorded. That recording aired last night during the documentary’s finale.

There are a couple legal issues associated with whether the statement is as damning as it is portrayed by the news media. First, the issue is whether the statement is admissible. Meaning, is there an argument that Durst’s lawyers could make that would get this statement suppressed? The answer, of course, is it depends. While Mr. Durst does have an expectation of privacy when he is in the bathroom making this statement, that legal doctrine is only applicable when governmental officials or those acting under their direction do the listening. So had the statement been obtained from a wiretap that was in place without a warrant, then the statement probably would be suppressed. Here, it seems that the statement was obtained by the documentary film makers. So for the “expectation of privacy” doctrine to come into play, his lawyers would have to convince a judge that the film makers were somehow working with the police to such a level that their actions might as well have been the actions of the police. This is probably not the case, but that’s a factual issue that will be resolved down the line. The next point is whether the giving of this statement violated Mr. Durst’s “Miranda” rights. The same analysis is applicable. In addition, there is nothing to really suggest that Mr. Durst was “in custody” when he made these statements. If a person isn’t in custody, there is no obligation for the police to Mirandize the suspect. A person is considered in custody when an innocent person in that person’s shoes feels like they are not free to leave the situation. Here, I just don’t see an argument to suppress the statement. But I guess you never know.

The second question is, to what extent is the statement that probative of Durst’s guilt anyway. I won’t speculate on this issue. While it sure seems like Durst confessed to killing these three people, a lawyer could always just argue that he was sarcastically muttering nonsense to himself after a grueling interview. While it seems like this is a long shot (certainly the media is already portraying it that way), let’s not forget that Durst’s lawyer already once convinced a jury that Durst was acting in “self-defense” when he killed his neighbor and then mutilated his body before dumping it into Galveston Bay to hide the fact that he killed him. So you really do never know what a jury will do.

I guess time will tell.