This is the third in a series of articles about the hearings before the murder trial of Robert Durst. You may click on the hyperlinked titles to read Two Hearings: Robert Durst and Armon Nelson and While Robert Durst Flips Through Photos.


Robert Durst seems to be fading away. In the first hearing in his trial for the murder of Susan Berman observed by our Crime Story reporters, Robert Durst yells about the wardrobe brought for him. In the second, he sits, virtually mute, and only becomes engaged by a series of evidentiary photographs, which he flips through, as if on some sort of neural loop. By the third, on May 15, 2019, he enters the court as frail as he has ever been and then seems to virtually disappear. He is asked no questions, utters very few words, and sits idly as his attorneys argue on his behalf.

By contrast, John Lewin is blooming. The Los Angeles Deputy District Attorney’s demeanor is marked by his evolving greetings for the defense team. 

At the first hearing he is adversarially cordial, saying “I’m surprised you all came out for this.” At the next, he playfully taunts the defense team’s exponential expansion with “Your team grew!” And finally, on May 15, his greeting is saturated with contempt and dismissal. “No stips! No stips!” he shouts with fury directly at Durst’s Las Vegas-based attorney Michael Chesnoff.

Chesnoff tries to respond, “Don’t get so excited, John. Nothing is controverted… It would save us an entire day.”

Lewin starts to leave the courtroom in theatrical disgust. “Several of them. ARE. NOT. ACCURATE,” he says, punctuating each word with his finger. As he passes Chesnoff, he concludes, “I’m tired of this.”

As Lewin leaves the courtroom, Chesnoff’s co-counsel Chip Lewis enters. “He just went crazy. Just crazy,” Chesnoff says to Lewis.

Apparently, Durst’s team tried to file certain documents with the court asserting that there were facts on which the defense and the prosecutors could agree. Lewin has clearly taken issue with that assertion, and in so doing has set the tone for what proves to be a dramatic and fascinating day of arguments.

Lewin’s emotional chafing seems to derive from the defense team’s attack on his handling of an interview of Durst in New Orleans. Lewin traveled to Louisiana with two LAPD officers after Durst was arrested there on gun and controlled substance charges. There was also evidence that Durst intended to leave the country to evade murder charges that seemed imminent as he and the rest of the country watched a six-part HBO documentary, The Jinx, present evidence that implicated him in Berman’s shooting. (Here is a link to a video of the entire Lewin interview with Durst in New Orleans.)

Durst’s attorneys, particularly Chesnoff, seek to advance the argument that Lewin knowingly engaged in prosecutorial violations of Durst’s Fourth (right to be free from unreasonable searches and seizures), Fifth (right to be free from self incrimination), Sixth (right to a lawyer) and even Fourteenth (right to be free from deprivation of liberty without due process) Amendment rights.  

Lewin cannot abide these insinuations in the Chesnoff filings and will later object strenuously when Chesnoff seeks to imply that the prosecution would stipulate to — which in legalese means “acknowledge without argument” — some of his assertions.

Mark E. Windham, an even-tempered judge who bears a vague resemblance to the late night talk show host Stephen Colbert, presides over the proceedings. Windham missed the pre-hearing drama between Lewin and Chesnoff. He enters the courtroom and immediately issues several rulings favorable to the prosecution. Windham will allow all of the incriminating evidence and statements collected by Lewin and his team in New Orleans with the exception of a couple of statements that Lewin made during the interview with Durst. For example: “I win my trials, and you know why I win my trials? Not because I’m such a great lawyer but because the defendant is guilty” which Windham says is “brilliant but not appropriate to give a jury.”

Chesnoff tries to explain to Windham that the judge is missing significant constitutional violations in Lewin’s handling of the Durst interview. Lewin, Chesnoff argues, knew that Durst would soon be arrested, and completely disregarded Durst’s right to have access to his attorneys. And then Windham bears witness to the tension between the two litigators —

CHESNOFF:

YOUR HONOR, THE RECORD IS THAT THE INVESTIGATORS WERE ALL AWARE THAT IN FACT CHARGES WERE GOING TO BE FILED… I THINK MR. LEWIN WOULD STIPULATE THAT HE HAD A CASE WITHOUT THIS INTERVIEW. THAT’S WHAT HE’S MAINTAINED AND STATED ALL ALONG. IN FACT —

LEWIN: 

YOUR HONOR, WE‘RE GOING TO OBJECT UNDER RELEVANCE. EVERYTHING THAT’S BEING STATED RIGHT NOW, YOUR HONOR, BASED ON THE COURT’S RULING — THIS IS IMPORTANT, YOUR HONOR. THE COURT MAKES A RULING AND SAYS —

WINDHAM: 

I’M SORRY. YOU’RE MAKING A RELEVANCE OBJECTION TO AN ARGUMENT?

LEWIN: 

ABSOLUTELY.

WINDHAM: 

OKAY.

Windham seems genuinely vexed by Lewin’s brash interjections. And Lewin either is oblivious to his reaction or doesn’t care.

LEWIN:

YOUR HONOR, THE COURT HAS RULED AND THE DEFENSE COMES BACK — THE COURT JUST SAID IT DOESN’T MATTER. THE BRIGHT LINE IS THE FILING, AND HE MAKES AN ARGUMENT EXPLAINING WHY THE LAW SHOULD BE DIFFERENT. HOW IS THAT AN APPROPRIATE ARGUMENT?

WINDHAM: 

MR. LEWIN, YOU’RE OUT OF ORDER. LET HIM FINISH. 

Lewin bites his tongue for the moment as Chesnoff regroups and tries to make the case that Lewin choreographed his interrogation of Durst so that he could keep him away from his attorneys for as long as possible.

CHESNOFF:

THE FIRST OPPORTUNITY THAT [DURST] WOULD HAVE UNDER THE CONDITIONS OF THE JAIL TO SEE HIS LAWYERS WAS AS SOON AS THEY WENT INTO THE COURTROOM, WHICH MR. LEWIN ATTEMPTED TO DELAY, AND THEN MR. LEWIN ATTEMPTED TO TELL MR. DURST, “WELL, LET’S DO THIS AFTERWARDS.“ AND THE RECORD SHOWS FROM THE DECLARATIONS THAT WE FILED THAT MR. LEWIN WENT AS FAR AS TO INSIST THAT MR. DURST PERSONALLY TELL HIM THAT HE WAS INVOKING [HIS FIFTH AMENDMENT RIGHTS AGAINST SELF-INCRIMINATION] AS OPPOSED TO TAKING THE WORD OF THE LAWYERS WHO ARE THERE TO REPRESENT HIM.

Immediately, Lewin rushes in with another objection, seeking every possible detour around Windham’s calls for civility, patience, and decorum.

LEWIN: 

YOUR HONOR, THE ARGUMENT ABOUT —

WINDHAM: 

DON’T.

LEWIN:

THE DECLARATION IS NOT —

CHESNOFF: 

YOUR HONOR, CAN I —

LEWIN: 

YOUR HONOR, HE CANNOT ARGUE —

CHESNOFF: 

YOU CANNOT INTERRUPT ME.

WINDHAM: 

STOP.

CHESNOFF: 

SERIOUSLY, YOUR HONOR. I CANNOT —

LEWIN: 

WELL, YOUR HONOR, I WOULD LIKE TO KNOW —

WINDHAM: 

EXCUSE ME. THIS IS NOT YOUR COURTROOM, MR. LEWIN. PLEASE BE QUIET WHEN OTHER PEOPLE ARE SPEAKING.

LEWIN: 

I HAVE AN OBJECTION.

WINDHAM: 

YOU’LL HAVE YOUR TURN TO RESPOND WHEN MR. CHESNOFF HAS FINISHED HIS.

LEWIN: 

YOUR HONOR, I’M OBJECTING.

WINDHAM: 

ANYTHING HE SAYS THAT YOU DISAGREE WITH YOU CAN POINT OUT TO ME. I’LL REMEMBER WHAT MR. CHESNOFF SAID, AND I’LL TAKE INTO ACCOUNT YOUR REPLY.

LEWIN: 

SO, YOUR HONOR, IS THE COURT SAYING —

WINDHAM: 

YOU MAY NOT INTERRUPT.

LEWIN: 

SO YOU’RE SAYING YOU DON‘T WANT ME TO — ON THE ARGUMENTS YOU DON’T WANT ME TO OBJECT? YOU WANT ME TO —

WINDHAM: 

YES.

LEWIN: 

— ADDRESS IT WHEN —

WINDHAM: 

GOT IT. BINGO.

LEWIN: 

WILL DO.

Chesnoff then proceeds to make his arguments for Windham to reconsider his ruling. Windham respectfully listens and then denies all of Chesnoff’s requests. Lewin’s breaches of civility, patience, and decorum have had no adverse impact on Windham’s decisions, and, in fact seem to lead Windham to add details to his decisions that further limits the defense’s appeal options.

Lewin accepts Windham’s admonitions and the victories that come with them. And in retrospect, what initially seemed like Lewin’s tone-deaf antagonism of Windham and an obtuse focus on the details of his own arguments now seems to be part of an effective strategy to use the theater of the courtroom to shut down every argument that the defense might use to challenge to the evidence against Durst. Lewin is blooming.

And Robert Durst sits silently and expressionless until he is remanded back to the custody of the State of California.