For a judge, maintaining courtroom control over unruly attorneys can be a daily challenge. According to one retired jurist, some judges have a knack for courtroom control; others do not. “The trick,” she notes, “is to maintain control without holding anyone in contempt.” In other words, it’s like corralling kindergartners hyped on juice boxes and unbridled joie-de-vivre… without resorting to timeouts. Throw in unpredictable personnel changes, as attorneys tag-team restlessly through pre-trial hearings, and you have a sure recipe for judicial irritability and chaos.
Three recent pre-trial hearings in The People vs. Robert Durst presented three varying iterations of the attorney pool. The People (Deputy DAs John Lewin, Habib Balian, Eugene Miyata and Ethan Milius) remain constant, but Durst’s defense team alternately drops members due to seasonal illness (Donald Re) or trial (Chip Lewis). Such are the exigencies of an odyssey of pre-trial proceedings that has stretched on since April, in anticipation of a trial that will not begin issuing jury questionnaires until January. There is a good chance opening arguments won’t begin until March.
The faces may change in The People vs. Robert Durst, but the defense’s aggressive posturing doesn’t. In previous pieces, Crime Story spotlighted the unique rhetorical styles and demeanors of Durst defenders Chip Lewis and David Z. Chesnoff. In this recent trio of hearings, however, it was lead counsel Dick DeGuerin who seized center stage. A dapper 78 year old, DeGuerin matches polished black cowboy boots with country-club sports jackets, tortoise-shell eyeglasses… and panache. When he gestures, DeGuerin’s jacket sleeve sometimes falls back, unveiling a right wrist busy with bracelets, including a strand of Buddhist prayer beads. DeGuerin exudes Houston high society, circa 2019: well-tailored, worldly, effortlessly au courant. On top of it all, he’s a man used to winning… and not breaking a sweat while doing so.
Which renders DeGuerin’s barely-concealed aggression especially noteworthy. It’s day two of the latest pre-trial hearing and defendant Robert Durst is late… again. Killing time, the assembled attorneys take phone calls and check emails. At one point, Deputy DA Lewin gets up and heads for the hallway, cell phone to his ear. He leaves his laptop open, and when he returns and sits, DeGuerin pounces.
“You have that thing backed up?” he asks Lewin, leaning over and pointing to the County-issued laptop.
Lewin says he sure does, “in seven different ways.” He lifts the device and bangs it on the table, proof that his computer (and files) are trauma-resistant.
DeGeurin nods. “So then spilling coffee all over it won’t work,” he sneers, turning away.
Durst finally arrives mid-morning, the bailiff alerts Judge Windham, and the random activity in Department 81 becomes more patterned, like stray metal filings organizing themselves around a magnetized center.
Judge Mark E. Windham takes his seat and recognizes the assembled. On any given day, Windham projects a preternatural calm. Today, he spikes that with an expression that looks a lot like glee. If it’s possible for a presiding judge to lick his or her chops in anticipation of the task ahead, Windham is doing just that this morning. At issue is a cluster of evidentiary objections raised by the defense. Having moved (and then lost) to have Durst’s “hot mic” confession excluded, DeGuerin & Co. are now zeroing in on their client’s March 15, 2015 interview with Deputy DA Lewin, recorded in the New Orleans Parish Jail after Durst’s arrest there. In their moving papers, the defense makes two points: first, that the content and style of Lewin’s questions during the interview comprised “factual assertions and opinions,” such that they amount to “unsworn testimony” by Lewin. By filling the transcript with qualifiers like “I believe” and “I think,” Lewin had made himself part of the evidentiary record, according to Durst’s team; they moved the court to exclude large segments of the interview under California’s Evidence Code Section 352, which holds that The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
The Durst team’s second tranche of objections center on their contention that Lewin’s demeanor during the interview, and Durst’s perception of its context, rendered it a “bona fide plea negotiation” and thus inadmissible as evidence. Under this Section 1153 argument, the defense claims that Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or to any other crime, made by the defendant in a criminal action is inadmissible in any action or in any proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.
Windham must also consider a third defense motion concerning the Durst team’s request to present third party culpability evidence. “These other parties,” Durst’s attorneys argue, “include 1) the mafia/organized crime, 2) [Susan] Berman’s former manager, Nyle Brenner, 3) Berman’s landlady, Dee Baskin Schiffer, and 4) any person who may have entered the home as a result of random crime.”
Judge Windham squares his shoulders and scrutinizes the papers before him. First up, the 352 matter. The defense’s objections require the careful redaction of selected segments of Lewin’s interrogation, the painstaking separation of Durst’s admissions from what Windham terms “Mr. Lewin’s charm offensive.” Windham vows to wield a “scalpel” to achieve this dissection. The resulting operation is time-consuming and scholarly, more graduate seminar exegesis than criminal court hurly-burly. At one point, Windham notes that a particular conversational ploy of Lewin’s is an “enthymeme” (a syllogism in which one of the premises is left unstated, to be inferred by the listener). This observation seems to sail over the heads of the defense — Chesnoff has his eyes locked onto his cell phone and DeGuerin’s posture reads: preoccupied. Lewin and his team, however, seem to lean into the editorial task at hand, revealing an unexpected attention to detail. Deputy DA Balian tracks the agreed-upon redactions.
One of which is emblematic of what Judge Windham calls Lewin’s “reasonable talk with an unreasonable man.” Early in the New Orleans interview, Lewin questions Durst about his damining admissions in THE JINX. Durst explains to Lewin that he was “on meth. The whole time I was on meth.” But Lewin’s having none of it.
LEWIN:… YOU SEEM LIKE A STRAIGHT SHOOTER. I ASSUME YOU WOULD PREFER THAT I BE A STRAIGHT-SHOOTER AND NOT A BULL-SHITTER, RIGHT?
LEWIN: OKAY. I’M A STRAIGHT-SHOOTER.
LEWIN: WHAT YOU JUST TOLD ME IS BULLSHIT.
In accordance with EC 352, is Lewin’s assertion probative or prejudicial? The seconds-in-command rise to present their respective theories. Chesnoff argues that Lewin confronted their client with an “inference,” that he essentially called Durst a liar and that they should be allowed to cross-examine Lewin on this point. Balian swats this aside: Durst had been Mirandized and this was an interview, not a court proceeding. He’s only just re-taken his seat when Lewin informs Windham that he agrees to redact the line in question. Tactically, it’s a timely concession, demonstrating not only the People’s reasonableness but also their understanding that Durst’s interview admissions are all the more striking when isolated, stripped of Lewin’s sometimes meandering, Columbo-esque lead-ups. This edit sets off a chain of similar elisions, as the People agree to redactions that in the end only highlight Durst’s damning statements. As the People note in their opposition papers, “Amazingly, Defendant does not appear to have reviewed his requested redactions, as in many of them he appears to have inadvertently kept in the very information he argues should be excluded.” Lewin agrees to elision after elision… and still looks like the cat that ate the canary.
It’s late in the day when Deputy DA Balian rises to address the defense’s contention that Lewin’s interview with Durst amounted to a “bona fide plea negotiation” and should therefore be excluded as evidence under the terms of EC 1153. In contrast to the defense’s sometimes colorful behavior (audible sighs, eye-rolling and sotto voce snipes), the People project probity and purpose. Balian adds a hint of humility. Soft-spoken, exact in his language, he’s like Lewin’s relief pitcher — tactical, technical, brutally efficient. Balian argues that there can be no mistake that in New Orleans, Lewin wanted a confession. No case had been filed, therefore any plea negotiations would be premature. Further, a plea negotiation, in order to be bona fide, requires that both parties be fully aware of its intended outcome. Lewin, his lieutenant argues, was in New Orleans for a confession and nothing but. Overriding DeGuerin’s objection that the context of the interview (Durst’s arrest; the presence of LAPD and Lewin) made its nature perfectly clear, Windham rules for the People.
Day Two of the pre-trial hearings is wrapping up and with one eye on the courtroom clock, Judge Windham places a small bell on the bench before him. He’s back in kindergarten teacher mode and it’s time to put the crayons away.
“If there’s no other business…” He taps the bell with a miniature baton. “And with that, Department 81 is adjourned.”
Defense counsel Donald Re leaps to his feet. “Your Honor… on the record…”
But Windham only smiles. “I’m sorry, Mr. Re. But you can’t unring the bell.”
On Day Three, Windham will also deny the defense’s arguments concerning the introduction of third party culpability evidence. In Durst’s trial for the murder of Susan Berman, his recorded confessions will be the primary evidence against him.
Crime Story has previously published seven installments in a series of articles about the hearings leading up to the murder trial of Robert Durst. You may click on the hyperlinked titles to read Two Hearings: Robert Durst and Armon Nelson, While Robert Durst Flips Through Photos, Robert Durst Fades Away, Robert Durst and the Inequity of Judicial Time, Robert Durst’s Warrior in Court, Robert Durst Stares into the Camera, and Robert Durst’s Lawyer Gets a Compliment. We also published a news story about Durst’s stipulation to key evidence (his authorship of the so-called “cadaver note” and “dig note”) here and presented a podcast discussion of the case here.