Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: New York City Mayor Bill de Blasio can bar thousands
Speaker 1: of unvaccinated teachers and other public school workers from their
Speaker 1: jobs after the Second Circuit Court of Appeals lifted a
Speaker 1: temporary injunction preventing such a move. There is going to
Speaker 1: be a full procedure UH in the course of this week,
Speaker 1: and we're very, very confident that the city part education
Speaker 1: is going to prevail because we're trying to protect kids,
Speaker 1: We're trying to protect families, were trying to protect working
Speaker 1: people in our schools. We've been in court with this
Speaker 1: very same set information, very same argument at both the
Speaker 1: state and the federal level. We've won previously. We expect
Speaker 1: to win again and quickly. The Appellate Court gave no
Speaker 1: reason for the decision on Monday, other than saying the
Speaker 1: injunction that had been entered last Friday was for administrative purposes.
Speaker 1: This is all about the preliminary injunction. The underlying legal
Speaker 1: and constitutional challenges to the city policy are yet to
Speaker 1: be heard. The practical effect that the largest school district
Speaker 1: in the country may now insist that all school employees
Speaker 1: and contractors be vaccinated. The mandate will go into effect
Speaker 1: on Friday at day's end. Joining me is Dorrit Reese,
Speaker 1: a law professor at you see Hastings College of Law
Speaker 1: who specializes in vaccine policy. Were you surprised at the
Speaker 1: second Circuit is allowing the vaccine mandate to go into effect?
Speaker 1: Not really. My reading of the initial decision was the
Speaker 1: Second Circuit was coming in with the view that they
Speaker 1: needed a little more time to consider this. But these
Speaker 1: preliminary measures are unusual. Most of the time courts don't
Speaker 1: stay a measure well, gratification is going on, and the
Speaker 1: bark of them is pretty high, So I was not so.
Speaker 1: In this challenge, the public school teachers and aids claim
Speaker 1: the requirement for a vaccine violates their right to pursue
Speaker 1: their profession and discriminates against them. What's your take on
Speaker 1: that argument. Neither of those is a very good argument.
Speaker 1: The first part the valid their professions. They're trying to
Speaker 1: make a constitutional argument that it goes against the constitutional rights.
Speaker 1: The problem they have run into it that the standards
Speaker 1: for public health measures that limit individual rights is historically
Speaker 1: the standard set in Jacobson versus Massachusetts from nine five,
Speaker 1: and that's a very lenient center towards the policymakers. The
Speaker 1: policymakers can limit individual rights in the public health under
Speaker 1: it as long as the lives are reasonable, and teachers
Speaker 1: co vaccine mandates in the middle of a pandemic when
Speaker 1: many of the children can't be vaccimated, yet, it's probably
Speaker 1: going to be found in reasonable. The second argument, discrimination
Speaker 1: argument is even weaker, and here's why. First, unvaccinated workers
Speaker 1: are not situated similarly to vaccinated workers. Discrimination means treating
Speaker 1: the like case differently, but unvaccinated teachers the gnostages similarly
Speaker 1: to vaccinated features. Unvaccinated features are at higher bits of
Speaker 1: getting combinating the vaccinating features, and it's higher is of
Speaker 1: completing it to the students, so they're not in the
Speaker 1: same category. And it's not any more discriminations than given
Speaker 1: tickets for jaywalking just to jaywalkers and not to people
Speaker 1: who stand on the sidewalk. Second, even if their distinction
Speaker 1: wasn't as strong as it is, being an unvaccinated teature
Speaker 1: is not a protective category. Choosing not to vaccinate. It's
Speaker 1: not equivalent to being part of a racial groups, part
Speaker 1: of religious groups, et cetera. So that's Clay two isn't
Speaker 1: very strong. Is the most recent Supreme Court precedent that
Speaker 1: nineteen o five case that upheld in Massachusetts smallpox vaccination law.
Speaker 1: So we refer to Jacobson because it's been a help
Speaker 1: and relied on in many cases. Sees, it's still the
Speaker 1: case that's often cited in discussions of public health. So
Speaker 1: at it's a really old case. The conclusions are echoed
Speaker 1: in a lot of more recent cases, so it's the
Speaker 1: latest case directly on points, but it has a very
Speaker 1: strong progeny and a very strong history. Seat is there
Speaker 1: a difference when the vaccine mandate comes from the federal
Speaker 1: government as opposed to the state, your city, so federal
Speaker 1: versus locales there is a difference, but it's not in
Speaker 1: the sermon constitutional rights, the constitutional writers, students, and the
Speaker 1: different who applies to both state and face. However, the
Speaker 1: Special Government has to face additions constraints. The sedial government
Speaker 1: is one of limps with power, and it can only
Speaker 1: act within the sermy powers, the main part to regulates
Speaker 1: public health life with the state. The special government can
Speaker 1: do some of it under its other powers, such as
Speaker 1: the parts who regulates inter state commerce. The parts to
Speaker 1: regulate interstate trouble, the power to add conditions when it
Speaker 1: comes program. The federal government gives a lot of money
Speaker 1: to the state for variety of things, and when it
Speaker 1: gives money, it can do it with condition. So the
Speaker 1: secial government has limited parties to act in the public health,
Speaker 1: and you have to make sure any measority takes within
Speaker 1: those powers. The Supreme Court denied review of Indiana University's
Speaker 1: vaccine mandate for employees and students in the shadow docket,
Speaker 1: but we also saw COVID restrictions struck down when it
Speaker 1: was due to religious reasons. Do you have any doubt that,
Speaker 1: let's say, if that case came to the Supreme Court now,
Speaker 1: would they hold in the same way. I am very
Speaker 1: sure that if the nineteen o five Jacobsen case came
Speaker 1: to the Supreme Court now they would just help the
Speaker 1: same way. As you correctly say, there's a number of
Speaker 1: things that go under this, some of them are more
Speaker 1: complicated than others. First, Jacobson was eminently reasonable because it
Speaker 1: was a small poxman imposed in the middle of an
Speaker 1: outbreak against the very dangerous disease, and the function was moderate.
Speaker 1: It's fine, so has made it an eadicate in many
Speaker 1: ways to uphold you're correctly saying that there are different
Speaker 1: rubrics here. Jacobson was not addressed under religious freedom. Jakobson
Speaker 1: did not claim that he had religious objections to the vaccine.
Speaker 1: He was worried that the vaccine was unsafe. Religious freedom
Speaker 1: wasn't at the time protected against the state, only against
Speaker 1: the federal government, but today it is protected. Today is
Speaker 1: protected against state actions, and the Supreme Court has been
Speaker 1: a leverage student on religious freedom that separate from the
Speaker 1: discipline's injury student. And right now it's unclear whether that
Speaker 1: rest would require a religious exemption from a chteine mandate
Speaker 1: that also had a medical exemption. It's just unclear. I
Speaker 1: think a good reason to say no that you don't
Speaker 1: have to be a religious exemption from a vaccine mandate
Speaker 1: even if it has medical exemptions. First, because medical exemptions
Speaker 1: are part of the framework that creates the mandate. The
Speaker 1: goal of the mandate is to make sure that anyone
Speaker 1: who can be safety vascinated is the vascinated to increase
Speaker 1: rates of extination enough to prevent outbreaks. Medical exemptions are
Speaker 1: part of that because they are apply to people who
Speaker 1: cannot be safely back to me. Second, medical exemptions are
Speaker 1: probably contusionally necessary under and third there's good You need
Speaker 1: to think that mostly this exemputive excy are by people
Speaker 1: whose of the position of exciti is not religious, but
Speaker 1: most of them are instanced here, so requiring a religious
Speaker 1: exemption from a safety measure in a case to where
Speaker 1: we know there's going to be extensive abuse of the
Speaker 1: exemption by people whose reasons are not religions totally further
Speaker 1: than the Supreme courtile though, but that's an assessment. We
Speaker 1: have to see what the Supreme Court will do with
Speaker 1: a perfect A three judge federal panel is set to
Speaker 1: consider whether to delay a vaccine mandate affecting healthcare work
Speaker 1: or statewide in New York. That doesn't provide an exemption
Speaker 1: for religious grounds. So you think that from what you
Speaker 1: just said that that will pass muster that vaccine mandate
Speaker 1: even though it doesn't provide a religious exemption. I think
Speaker 1: it's unclear whether the fertile circuits will allow it. And
Speaker 1: the reason is that the Supreme Court you students created
Speaker 1: someone certainty. The Supreme Court basically provide us conflicting sources.
Speaker 1: On one hand, in a series of shadow doctor cases
Speaker 1: that we're not actually reason that didn't have the storic explanations.
Speaker 1: The Supreme Court said, we don't want you to put
Speaker 1: in place measures of treats religious house of worships. Differently,
Speaker 1: on the other hand, in Cooken versus Study of Philadelphia case,
Speaker 1: where the court directly asked, do you have to give
Speaker 1: a religious exemption from a general law? A majority of
Speaker 1: the Supreme Court said, we're keeping the old law for now,
Speaker 1: the laws that says that you don't have to be
Speaker 1: a religious exemption from a generally applicable laws. But there
Speaker 1: was a very very strompt descent going the other way.
Speaker 1: Not discent because everybody agree on the result in that case,
Speaker 1: but there was a very strong set of judges that
Speaker 1: would have liked to overturn that movie. So right now,
Speaker 1: where is the Supreme Court will go? If it's directly
Speaker 1: effects with the question here is a vaccine man, it
Speaker 1: doesn't give a religious sugestion is a little bit unclear
Speaker 1: and the second circuit to be acting to this and
Speaker 1: certainty could go either way. More and more workers are
Speaker 1: applying for religious exemptions. For example, in l A, about
Speaker 1: a quarter of the police department is expected to seek
Speaker 1: religious exemptions from vaccine mandates. Just explain what a worker
Speaker 1: has to show in order to again a religious exemption.
Speaker 1: So there's two parts to the religious exemptions claim. One
Speaker 1: is it has to be religious and sweet has to
Speaker 1: be stence here for religious the specialities, Streten suggests a
Speaker 1: three part sept. First, a religious is about fundamental a
Speaker 1: high level questions such as the meaning of life, things
Speaker 1: like that, So it has to address those kinds of
Speaker 1: high level ethical issues. Second, you can't just grab into
Speaker 1: one religious birth. Your religious objection has to be part
Speaker 1: of the comprehensive belief system. And Third, usually but not always,
Speaker 1: religious is a companied by external science and right maybe
Speaker 1: something you were, maybe something you do. Again, this is
Speaker 1: not required. You can have very personal belief, but if
Speaker 1: you have those help What is sest Is trying to
Speaker 1: do is draw the line between things that are religious
Speaker 1: and things that are strongly help believe but not religious,
Speaker 1: without limiting religions to believe in a deity or multiple deities.
Speaker 1: So that's the test for ISAs it's religions. The second
Speaker 1: partion is since here and that's what think gets really hard,
Speaker 1: and that's one of the reasons by the way against
Speaker 1: inquiring religious subsemption. The problem is that the test for
Speaker 1: sincereity does the person called the sinecure religious belief, not
Speaker 1: does the religion object to the excins. So you can't
Speaker 1: require a letter from ecourergy. You can't say if your
Speaker 1: relieving support bos so, for example, if you're a Catholic
Speaker 1: or a Jew, you don't have it will claim here.
Speaker 1: You can't say your beliefy irrational. We're not going to
Speaker 1: allow it because it's not about judging the rationality. That
Speaker 1: makes it's really hard to police. And since we have
Speaker 1: good reasons to think that most of these people are
Speaker 1: opposing the vaccine not because of religiousisms, but because they've
Speaker 1: read online misinformation that scared them off the vaccine, we
Speaker 1: can't expect extensive views of this. And that means that
Speaker 1: it's this exemption for our treats, which is why, as
Speaker 1: you said, some states are saying we won't give it
Speaker 1: any to them, and we know it's very vulnerable to abuse,
Speaker 1: and we'll have to see where the court stands in
Speaker 1: the with a vaccine mandate, when there's an option to
Speaker 1: get vaccinated or to take regular coronavirus tests, that seems
Speaker 1: to defeat the point of the mandate. Do you think
Speaker 1: it still would require that there be that option. Mhm. So,
Speaker 1: first of all, whether it decreads the point of the man,
Speaker 1: that depends what the point of the man. That is.
Speaker 1: If you can get to a point where the tests
Speaker 1: are good enough that you can be reasonably sure the
Speaker 1: person probably doesn't have coronavirus, the testing might be a
Speaker 1: reasonable alternative. And the reason we are seeing a lot
Speaker 1: of places of the testing is that it gives them
Speaker 1: out to people who have very strong feeling against the
Speaker 1: vaccine whilst putting in place something that makes refusing the
Speaker 1: vaccine harder. It's a reasonable option. I don't think course
Speaker 1: will require it, though, and that's because in some places
Speaker 1: testing is not a good enough for options. First, it's
Speaker 1: not clear that we have good enough testing to reliably
Speaker 1: tell us who is inspecting who is not. Some people
Speaker 1: don't test positive until a little into their inspections, but
Speaker 1: they can be contagious before second vaccines and testing together,
Speaker 1: as in LAS Latter proscurity. And I think court will
Speaker 1: say this time of uncertainty, we will defer to the
Speaker 1: decision maker, and if the decision makers it doesn't want
Speaker 1: to allow testing options. They don't have to. They can
Speaker 1: conclude reasonably that it's not a good enough options. Vaccine
Speaker 1: mandates are being challenging state courts and federal courts all
Speaker 1: across the country. Do you think that they're likely to
Speaker 1: survive the court challenges? I think, but sine Mandy will
Speaker 1: survive godly in the sense that mostly will be upheld.
Speaker 1: I express there will be losses on an individual basis,
Speaker 1: on refusing an individual religious extensions, or maybe on the
Speaker 1: question of a religious freedom. But I expect the court
Speaker 1: to give employers, states, the federal government quite a bit
Speaker 1: of latitude in requiring but sin as long as so
Speaker 1: for the federal governments of the question, are they overstepping
Speaker 1: their parts? But other than that, I explained the course
Speaker 1: to give quite a bit of latitudes. Because judges live
Speaker 1: in this country as well, they see what's going on.
Speaker 1: There are words as coven nights seems killed hundreds of
Speaker 1: thousands Americans in the last two years, and they're likely
Speaker 1: to understand why health authorities, why public health authorities and
Speaker 1: other officials are doing. Are reaching for mandates as a
Speaker 1: way to prove mandates aren't your ideal first option. I
Speaker 1: hoped we wouldn't be where we are, and I think
Speaker 1: a few of us are happy that we're still dealing
Speaker 1: with coronavirus in plates. But when the diseases raising mandates
Speaker 1: are in some ways the least worst options are better
Speaker 1: than letting people die. Thanks for being on the Bloomberg
Speaker 1: Law Show. That's dort Rees, a professor at you See
Speaker 1: Hastings College of Law who specializes in vaccine policy. On
Speaker 1: October eighteenth, Robert Durst will be returning to the Los
Speaker 1: Angeles courtroom where a jury convicted him of the execution
Speaker 1: style murder of a close friend, to be sentenced for decades.
Speaker 1: Mysteries surrounded the millionaire real estate science who was suspected
Speaker 1: not only of the murder of his friend, but also
Speaker 1: in the disappearance of his first wife, and was actually
Speaker 1: tried and acquitted of the shooting of his next door neighbor.
Speaker 1: But there's no mystery about his sentence. The seventy eight
Speaker 1: year old Durst must be sentenced to life in prison
Speaker 1: without the possibility of parole, joining me as former federal
Speaker 1: prosecutor Robert Mint's a partner McCarter and English. The jury
Speaker 1: deliberated only about seven and a half hours in a
Speaker 1: trial where the prosecution presented eighty witnesses and introduced nearly
Speaker 1: three hundred exhibits. They also came back with special circumstances
Speaker 1: on a twenty year old murder. How surprising is that, Well,
Speaker 1: it was an incredibly lengthy trial, and there were quite
Speaker 1: a few witnesses and a lot of evidence that was
Speaker 1: presented over the course of the eleven week presentation by
Speaker 1: the prosecution, and that was of course followed by weeks
Speaker 1: of testimony by Mr Durst himself. But at the end
Speaker 1: of the day, prosecutors used Durst's own words against him,
Speaker 1: and in many ways he was the best witness for
Speaker 1: the prosecution because they had all of this recorded testimony
Speaker 1: from him. They had his own statements made to prosecutors
Speaker 1: when he was arrested, They had the recordings they had
Speaker 1: made while he was in jail, and perhaps most damning,
Speaker 1: they had his recorded testimony that he made an HBO
Speaker 1: documentary where he made statements that prosecutors argued were essentially
Speaker 1: a confession to this crime. Was it a mistake to
Speaker 1: put him on the stand. He testified to chopping up
Speaker 1: the body of a Texas neighbor he killed in self defense.
Speaker 1: To abandoning the body of his best friend after discovering
Speaker 1: her dead, and he admitted that he would lie to
Speaker 1: get out of trouble, and that he had lied during
Speaker 1: sworn testimony in the past. Why put him on the stand.
Speaker 1: That's a great question, and one of the biggest challenges
Speaker 1: that defense lawyer's face in a criminal trial is whether
Speaker 1: or not to put their client on the stand to
Speaker 1: testify in their own defense. Generally, when defendants testify at
Speaker 1: their own trial, it does not end well for them.
Speaker 1: It gives prosecutors a chance to essentially retry their case
Speaker 1: and to cross examine the defendant with all of the
Speaker 1: evidence that prosecutors had already presented as part of their
Speaker 1: case in chief. In this case, Mr Durst had testified
Speaker 1: in his own defense in the trial in Galvesta where
Speaker 1: he essentially beat back the charges of murdering a man
Speaker 1: who was his roommate in Texas, and ultimately it was
Speaker 1: the decision of Mr Durst to testify in his own
Speaker 1: defense in this trial. We don't really know whether that
Speaker 1: was over the objections of his own lawyers or not.
Speaker 1: But this is a case where you had a witness
Speaker 1: who was compelled to testify. He's obviously someone who longed
Speaker 1: for the spotlight, and it seemed out of character for
Speaker 1: him to sit by and not try to convince jurors
Speaker 1: that he, in fact had not killed Susan Burman. Bob.
Speaker 1: This was a twenty year old murder, and how often
Speaker 1: are prosecutors able to bring cases in murder trials that
Speaker 1: happened decades ago. Is this unusual? It's a highly unusual
Speaker 1: case because not only did prosecutors have to prove that
Speaker 1: Mr Durst was the murderer of Susan Burman, but they
Speaker 1: essentially also had to try to prove that he had
Speaker 1: killed his first wife, Katie McCormick, because the theory of
Speaker 1: the prostitution's case was that Susan Burman was killed because
Speaker 1: she had damning evidence against him about the fact that
Speaker 1: he had killed his first wife. So prosecutors really had
Speaker 1: to lay out the proof that he was involved and
Speaker 1: responsible for both murders, not only the murder of Susan Berman,
Speaker 1: which occurred in two thousand, but also the murder of
Speaker 1: his wife, a case in which he had never been
Speaker 1: charged and who disappeared in So this was a very
Speaker 1: old case going back decades and decades, and were it
Speaker 1: not for the unusual circumstances where Mr Durst had gone
Speaker 1: on camera and made state and during that HBO documentary,
Speaker 1: it's unlikely that he ever would have been charged and
Speaker 1: convicted for Susan Burman's death. Durst was not in the
Speaker 1: courtroom when the jury's verdict was read, and much was
Speaker 1: made of it at the time. Does a defendant have
Speaker 1: to be in the courtroom? Usually the defendant is in
Speaker 1: the courtroom unless they are acting in a way that's
Speaker 1: disruptive to the trial. But here, because of the very
Speaker 1: unusual COVID protocols, we had a situation where people were
Speaker 1: spread out throughout the courtroom. Very unusual steps were taken,
Speaker 1: and in this case Mr Durst had been exposed to
Speaker 1: somebody who had COVID and therefore was not president in
Speaker 1: the courtroom when the verdict was read. Durst is appealing
Speaker 1: on several grounds. One ground is that there was insufficient
Speaker 1: evidence to convict him because no murder weapon was ever
Speaker 1: recovered and there was no forensic evidence to prove that
Speaker 1: he killed his wife or Burman. Does that prove insufficient,
Speaker 1: ever sense to convict well. That will be up for
Speaker 1: an appeals court to decide. But we did have a
Speaker 1: case here where there was no direct forensic evidence tying
Speaker 1: him to the murders, but there was other evidence, including
Speaker 1: not only the testimony of Durst himself, but the testimony
Speaker 1: of other witnesses for the prosecution. For example, there was
Speaker 1: a long time friend of both Mr Durst and miss
Speaker 1: Burman who testified that Mr Durst had told him it
Speaker 1: was her or me, referring to Burman, I had no choice,
Speaker 1: And prosecutors used that in their summation, saying that those
Speaker 1: nine words summed up the entire case that at that
Speaker 1: point Mr Durst felt that he had no choice but
Speaker 1: to kill Susan Burman, who was about to talk to
Speaker 1: police about the killing of his wife back in two
Speaker 1: But prosecutors don't need forensic evidence or a murder weapon
Speaker 1: to convict, do they. They could have a holy circumstantial
Speaker 1: case and get a conviction. No, that's absolutely right, And
Speaker 1: there are cases, of course, where people are convicted of
Speaker 1: asides where nobody is found, where there's no forensic evidence
Speaker 1: that ties them directly to the crime. For example, there's
Speaker 1: no murder weapons found, there's no DNA evidence that ties them,
Speaker 1: but prosecutors can still build a case circumstantially through other evidence,
Speaker 1: through testimony of witnesses, and at the end of the day,
Speaker 1: the standard that an appeals court will look at is
Speaker 1: whether or not a reasonable jury could have convicted him
Speaker 1: based on the evidence that was presented at the trial.
Speaker 1: This was a trial that was held during COVID and
Speaker 1: another one of the reasons for appeal is his attorneys
Speaker 1: say jurist was prevented from receiving a fair trial because
Speaker 1: of the lengthy delay of the proceedings. His lawyers had
Speaker 1: called the fourteen month delay the longest of German in
Speaker 1: US history featuring the same jury, and argued that the
Speaker 1: jurors could have forgotten information from the start of the trial,
Speaker 1: discussed the case with others, or watch television programs about
Speaker 1: the case. Is that valid the judge making the decision
Speaker 1: that after fourteen months he was going to go ahead
Speaker 1: with the same jury, Well, it's certainly an issue that
Speaker 1: you could expect the defense lawyers to raise, because any
Speaker 1: time you have an unusual circumstance, something that has not
Speaker 1: been typically seen in a criminal trial, defense lawyers will
Speaker 1: always argue that their client has been prejudiced by that.
Speaker 1: So in this case, you do have this very unusual
Speaker 1: circumstance where the trial was started and then it was
Speaker 1: paused for an extended period of time due to COVID,
Speaker 1: and they're going to argue that their client didn't get
Speaker 1: a fair trial because of that. What the appeals court
Speaker 1: is going to do is look at the entire transcript
Speaker 1: of the trial and determine whether or not the defend
Speaker 1: it was in fact prejudice, and even if he was,
Speaker 1: whether it was so severe that it would have changed
Speaker 1: the outcome of the trial. So these are the type
Speaker 1: of issues that you expect to be raised on appeal.
Speaker 1: These are the type of issues that I think, unless
Speaker 1: they're really extraordinary, unless they can point to a specific
Speaker 1: prejudice that resulted from the delay, I think it's unlikely
Speaker 1: to sway the Heels Court and unlikely that it will
Speaker 1: result in a new trial. From Mr Durst. Another point
Speaker 1: of appeals that the judge made an error in allowing
Speaker 1: jurors to see that HBO documentary. The jinks that's pretty
Speaker 1: unusual to allow them to see a documentary, isn't it.
Speaker 1: Again another very unusual aspect of this case, and again
Speaker 1: an issue that defense lawyers will make a big deal
Speaker 1: about and try to suggest that their client was prejudiced
Speaker 1: by allowing jurists to sit through that documentary. It is
Speaker 1: highly unusual, but it's also highly unusual for the defendant
Speaker 1: to have made some of the statements that he made
Speaker 1: during that documentary that prosecutors say amounted essentially to a
Speaker 1: confession to those crimes. This point interested me. The judge
Speaker 1: excluded evidence of possible sightings of Kathy Durst in New
Speaker 1: York City while Mr Durst's first wife went missing back
Speaker 1: in nine two, and although prosecutors and legs during the
Speaker 1: trials he was responsible for her murder, he was never
Speaker 1: charged with that crime. So one of the strategies the
Speaker 1: defense was using here was to try to argue that,
Speaker 1: in fact, he may not have even been dead. Her
Speaker 1: body was never found, a murder weapon was never found,
Speaker 1: and the judge in this case so found the evidence
Speaker 1: to be so attenuated that you did not let it
Speaker 1: go in front of the jury. Whether or not ultimately
Speaker 1: that amounts to reversible error will be something for the
Speaker 1: appeals court to decide. It really would depend on, in
Speaker 1: my view, how credible that evidence was about a Cathy
Speaker 1: Durst sighting. Obviously, she had been declared legally dead many
Speaker 1: years ago, and there was very little evidence to suggest
Speaker 1: that she was still alive. But whether or not it
Speaker 1: is something that should have been placed before the jury
Speaker 1: so they could consider the possibility that she's missing all
Speaker 1: these years and not actually dead is something that the
Speaker 1: appeals court will have to look at and decide whether
Speaker 1: that evidence was credible enough that it should have gone
Speaker 1: to jurors for their consideration. As you mentioned, Durst was
Speaker 1: never charged in connection with his wife's disappearance, despite investigations
Speaker 1: by the New York Police Department, the State Police, the
Speaker 1: Westchester County District Attorney's office. After the verdict was announced,
Speaker 1: the family of Kathy Durst issued a statement calling on
Speaker 1: prosecutors to pursue a case in her death as well.
Speaker 1: Would that be an even more difficult case to bring
Speaker 1: at this point, It would be an even more difficult
Speaker 1: case because she went missing back in and at this point,
Speaker 1: based upon this conviction and assuming it's not overturned, Mr
Speaker 1: Durst will get a sentence of life without parole, So
Speaker 1: prosecutors would have to look at that decide whether or
Speaker 1: not there was a possibility of actually getting a conviction
Speaker 1: in the case that was that old, and also whether
Speaker 1: or not it warranted them spending the time and the money,
Speaker 1: on the resources to pursue a criminal case in which
Speaker 1: the defendant was already serving life without parole. Bob, before
Speaker 1: let you go, tell me what you think the defense
Speaker 1: is strategy is here and why it failed. The strategy
Speaker 1: of the defense here was to try to portray their
Speaker 1: client as a hapless, socially awkward man who just makes
Speaker 1: poor decisions and it was in the wrong place at
Speaker 1: the wrong time. He ran twice rather than contacting the police,
Speaker 1: and they tried to pain him a somewhat of the
Speaker 1: victim of ambitious prosecutors and deceptive filmmakers. But ultimately the
Speaker 1: jury seemed to reject that characterization of Mr Durst. He
Speaker 1: admitted to prosecutors that he lied, and he admitted, and
Speaker 1: perhaps one of the highest points of drama during the trial,
Speaker 1: that not only had he lied in the past, but
Speaker 1: he would lie today if he had to. He was
Speaker 1: asked by the prosecutor did you kill Susan Berman, and
Speaker 1: he answered that he didn't. The prosecutor then filed up
Speaker 1: and said, but if you did, you would lie about it, correct,
Speaker 1: to which Mr Durst replied correct. That was essentially the
Speaker 1: completion of the self destruction of Mr Durst on the stand.
Speaker 1: He really stealed his own fate first by talking to
Speaker 1: the HBO documentary makers and putting himself back in the spotlight,
Speaker 1: and then making that bathroom confession according to prosecutors, where
Speaker 1: he walked off of cameras, went into the bathroom, not
Speaker 1: knowing that his mic was still on, unaware that he's
Speaker 1: being recorded, and said, what the hell did I do?
Speaker 1: Killed them all? Of course, prosecutors used that as a
Speaker 1: confession by Mr Durst to the crying. The defense tried
Speaker 1: to argue that those statements were taken out of context
Speaker 1: and didn't mean what they appeared to mean, but ultimately
Speaker 1: that was a very difficult statement for the defense have
Speaker 1: to deal with, and ultimately the jury simply did not
Speaker 1: find him credible. Thanks Bob. That's Robert Mints of McCarter
Speaker 1: and English, and that's it for this edition of The
Speaker 1: Bloomberg Law Show. Remember you can always get the latest
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