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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight an analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com, Slash Podcasts, Real Estate Air.

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Speaker 1: Robert Durst has been investigated for the murders of three people,

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Speaker 1: including his first wife, who disappeared in two in New York.

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Speaker 1: Durst was the subject of books, movies, Law and Order episodes,

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Speaker 1: and the award winning HBO documentary The Jinks The Life

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Speaker 1: and Deaths of Robert Durst, in which Durst spoke to

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Speaker 1: the filmmakers he belongs to one of the richest families

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Speaker 1: in New York City, might be a little eccentric. I

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Speaker 1: think Bob is very smart. I mean, he's managed to

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Speaker 1: get away with three murders. Why did he do this?

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Speaker 1: No one knows. Why was he dressed like a woman?

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Speaker 1: No one knows. Only witness left alive to even talk

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Speaker 1: about it? Is Robert Durst not tell the whole truth?

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Speaker 1: Nobody tells the whole truth. That documentary series not only

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Speaker 1: told the story of durst past, it's having a profound

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Speaker 1: effect on his future. The FBI arrested Durst for the

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Speaker 1: murder of his longtime friends Susan Burman on the night

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Speaker 1: before the last episode of The Jinks aired. In that episode,

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Speaker 1: Durst is confronted with a crucial piece of evidence, a

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Speaker 1: letter he'd sent to Burman, a letter the filmmakers had

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Speaker 1: obtained and turned over to police because of its similarity

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Speaker 1: to an anonymous letter about the murder. Durst murder trial

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Speaker 1: is set for January, but in pre trial maneuvers. His

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Speaker 1: lawyers tried to convince the Los Angeles judge that the

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Speaker 1: case against him is tainted by corrupt ties between police

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Speaker 1: and the filmmakers, saying the filmmakers collaborated with investigators more

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Speaker 1: than thirty times, but the judge ruled against them on Wednesday,

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Speaker 1: joining me as former federal prosecutor Laurie Levinson, a professor

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Speaker 1: at Loyala Law School. Laurie the judge said this was

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Speaker 1: an issue of first impression. Will you explain the argument

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Speaker 1: that Durst lawyers made, Well, this is the first time

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Speaker 1: a judge is seen exactly this type of argument. Durst

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Speaker 1: lawyers are arguing that basically the producers of the show

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Speaker 1: we're working for the police, and that they don't have

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Speaker 1: a separate journalist privilege for being an independent journalists, and

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Speaker 1: therefore that they should be able to give all of

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Speaker 1: the research material and background and out takes that the

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Speaker 1: producers have. The producers are saying, no way, we didn't

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Speaker 1: work for the police. We may have cooperated, but that

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Speaker 1: doesn't mean we lose our news reporter privilege. So I've

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Speaker 1: been involved in making documentaries about crimes and murder trials

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Speaker 1: and you often interview police or even get information that

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Speaker 1: couldn't be presented at trial. But was the making of

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Speaker 1: the Jinks different from that? Did they go a little further? Well,

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Speaker 1: the defense is claiming Durst lawyer claiming that this was

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Speaker 1: all basically collaborative between the police and the producers, that

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Speaker 1: the filmmakers in order to make and you know, a

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Speaker 1: winning document, unery or movie, needed the police's cooperation, and

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Speaker 1: the police will relying on them to get information that

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Speaker 1: they could use in the investigation and prosecution. Judge Mark

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Speaker 1: Wyndham said that Durst had not shown that the production

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Speaker 1: company became so entangled with l A law enforcement that

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Speaker 1: they should be treated like government agents. But can they

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Speaker 1: still use that theory at trial to challenge evidence like

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Speaker 1: the letter that the filmmakers found from Durst to Berman.

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Speaker 1: I don't think that they'll be able to use it

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Speaker 1: to challenge the admissibility of the evidence like the letter.

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Speaker 1: What they will be able to use it is in

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Speaker 1: cross examining anybody who takes the stand to see what

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Speaker 1: their relationship was with the filmmakers and what their motive was,

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Speaker 1: and whether they might have actually taken things out of

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Speaker 1: control or even created evidence in order to promote both

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Speaker 1: the film and the police effort. In the final episode

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Speaker 1: of the documentary, Durst goes into a bathroom, apparently unaware

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Speaker 1: that he's still wearing a microphone, and he appears to

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Speaker 1: confessed to murder. Here's part of that. You're all right

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Speaker 1: it is that confession admissible in this case? Are there

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Speaker 1: any problems with it? Well, it's you know, probably admissible

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Speaker 1: because nobody forced him to make that statement. He wasn't

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Speaker 1: being interrogated. He made an off hand remark. He just

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Speaker 1: doesn't realize or he didn't realize at the time that

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Speaker 1: he was might it wasn't wise, but it doesn't make

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Speaker 1: it illegal. My big question, however, is how much is

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Speaker 1: it worth because there's is an odd fellow to put

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Speaker 1: it mildly, and he could be just saying, look, I

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Speaker 1: was saying things. They didn't mean anything. This wasn't a

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Speaker 1: confession where I sat down and said here's who I

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Speaker 1: killed and here's how I killed them, and that it's

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Speaker 1: just being taken out of context. So he didn't realize

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Speaker 1: that he was still might, which has happened to a

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Speaker 1: lot of people. But he seems so care full in

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Speaker 1: this that it seemed odd that he wouldn't know that. Well,

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Speaker 1: it does seem odd. I mean, he didn't realize it

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Speaker 1: was a hot bike and he sort of muttered, there

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Speaker 1: it is. You're caught killed them all of course, and

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Speaker 1: again he will try to say, you know, this was

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Speaker 1: just sort of play acting, or I was frustrated, or

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Speaker 1: I was confused. They'll be up to the jury to

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Speaker 1: interpret it. I think for Durst, one of the hardest

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Speaker 1: things is actually Durst. Different people react to just his presence,

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Speaker 1: and some people get a very cold feeling by seeing

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Speaker 1: him and others don't. Now that shouldn't determine a murder case,

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Speaker 1: but the courtroom is theater and he's part of that theater.

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Speaker 1: Do you think Durst is likely to take the stand

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Speaker 1: in his own defense. Since he's already said so much

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Speaker 1: to filmmakers on tape, and he testified in his own

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Speaker 1: defense at his last trial. It's hard to say it's

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Speaker 1: absolutely his choice. I could imagine that his lawyers saying,

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Speaker 1: this is very risky for you to take the witness stand.

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Speaker 1: They have so much ammunition, including those taped the statements

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Speaker 1: during the taping, to use against you. But Durst will

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Speaker 1: do what Durst wants to do. He was acquitted in

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Speaker 1: two thousand three of the murder of his neighbor in Galveston, Texas.

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Speaker 1: Does that indicate that he might actually be believable to

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Speaker 1: a jury. Well, he might be. In fact, a lot

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Speaker 1: of people shake their head and say, how do you

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Speaker 1: get acquitted in a case where you admit you've chopped

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Speaker 1: up the body? Um? But he argued that he acted

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Speaker 1: in self defense. So obviously he has a compelling story

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Speaker 1: when he gives it, and he has a very very

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Speaker 1: good lawyer. Tell me a little bit about his lawyer. Well,

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Speaker 1: his lawyer, Mr Jan Garon is known as somebody who

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Speaker 1: goes all out very zealous for his client, and even

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Speaker 1: if his client is not that credible. The garon believes

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Speaker 1: that he will be in front of the jury. How

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Speaker 1: difficult will the case be for the prosecution? Some up

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Speaker 1: the evidence they have. They have to trace events dating

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Speaker 1: back to the days of disco. Right, this isn't a

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Speaker 1: slam case. The prosecution does have a compelling, you know,

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Speaker 1: a circumstantial evidence, which is every bit as admissible and

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Speaker 1: useful in the courtroom. But what they have that is

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Speaker 1: particularly compelling are the letters where you have the same

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Speaker 1: misspelling on the Beverly Hills. They have again durst statement

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Speaker 1: during the filming, we have his motive, and then they

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Speaker 1: traced all of his actions to show that he likely

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Speaker 1: was in Los Angeles when the death occurred. This has

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Speaker 1: been described as an execution style killing. Will Durst pass

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Speaker 1: come up to show that he's capable of that? The

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Speaker 1: prosecutors will try very hard to get his passed in

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Speaker 1: to sort of say this lays the groundwork for why

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Speaker 1: he would commit this crime. We're not simply saying that

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Speaker 1: because he might have done bad things before, even if

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Speaker 1: not convicted of him, he did him again. But here

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Speaker 1: is somebody who has a pattern of behavior, and so

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Speaker 1: I think they'll try to get it in how much

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Speaker 1: the court will allow. We'll have to wait and see.

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Speaker 1: Did you watch the series yourself. I watched portions of it.

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Speaker 1: I certainly watched the portion where they had this outtake

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Speaker 1: of him making these remarks. And you know, again, I

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Speaker 1: think that in itself will not win the case for

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Speaker 1: the prosecutor. I think that it's less than the misspelling

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Speaker 1: of Beverly on the envelope, But every single part matters.

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Speaker 1: So looking at this, and I know this is a

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Speaker 1: hard call, but which side do you think has the

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Speaker 1: advantage in this case? I think the prosecutor has a

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Speaker 1: lot of strong evidence, but they also have the burden,

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Speaker 1: and the burden is proof beyond a resonable doubt. And

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Speaker 1: especially here in Los Angeles, we have seen cases and

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Speaker 1: I need I remind anybody of the famous o J

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Speaker 1: one where people had DNA and it came back with

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Speaker 1: an acquittal. So even though I think the prosecutors have

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Speaker 1: done a tremendous job of investigating and interviewing and finding

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Speaker 1: everything they can, in the end, they don't have a

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Speaker 1: video of this crime occurring. And some jurors might demand

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Speaker 1: that it's going to be a fascinating trial and we'll

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Speaker 1: talk more about it. Thanks so much for coming on again. Laurie.

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Speaker 1: That's Laurie Levin since she's a former federal prosecutor and

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Speaker 1: she is a professor at Loyola Law School. Thanks for

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Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and

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Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on

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Speaker 1: bloomberg dot com slash podcast. I'm June Bosso. This is

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Speaker 1: Bloomberg