The initial pool of about 50 prospective jurors reports to Judge Mark E. Windham’s courtroom for voir dire a short two weeks before opening statements in the trial of Robert Durst. Eighteen are seated in the jury box, the rest in the gallery. They are a mix of male and female, predominantly professionals or retired professionals. Defense Attorney Chip Lewis, who hails from Texas, says “I do this a lot. And collectively, this is the most educated group of jurors I’ve seen.”
Many assume voir dire translates to “to see, to say,” when in fact, Judge Windham explains, the phrase is derived from Old French and means “to speak the truth.” It’s the process by which the lawyers and the court cull the jury pool based on individual questioning.
But in Department 81 of the Airport Courthouse this week in late February, it is more than just that. It is an intensive class in legal terminology and even more importantly, an opportunity to build relationships. Because of the nature of the crime and evidence to be presented, it also sometimes feels like a group therapy session – with Judge Windham as the skilled therapist, gently guiding the participants as they pick apart past traumas, hold them up to the light in a room of strangers, and together determine the impact they will have on any one person’s ability to be fair and impartial.
Through all this, what is most striking – given the outside world of politics and polarization and name calling – is the level of respect paid to these prospective jurors. When they enter the courtroom – in the morning, after breaks – the lawyers all stand until they have taken their seats in the box. Rarely, if ever, does a lawyer or the judge step on a prospective juror’s words. At the slightest suggestion that they have done so, they apologize sincerely and give the prospective juror space to complete their thought. The court is also careful not to waste their time. Sidebars are kept short. After prospective jurors are ushered in after one off-the-record discussion, Judge Windham jokes, “I’m always conscious of your time. It hurts me every minute I have to be away from you.”
The respect is returned, in particular towards Judge Windham. Engaged faces wearing studious expressions swivel toward him when he speaks. Repeatedly, prospective jurors proclaim some form of “I will follow Judge Windham’s instructions.” Or even “I will follow you.” Their trust is something Windham has earned — through years of experience on the bench and by his kind, collegial demeanor.
Part of Windham’s role is to reassure. When a prospective juror expresses feeling uncomfortable and terrified of murder, a concern shared by several over the course of jury selection, Judge Windham first acknowledges what a shock the facts of the case must present for them. Eager to calm prospective jurors afraid for their personal safety if they serve, Windham then explains that he and the rest of the staff have been working in this courtroom for years, overseeing many murder cases, all without incident. “The court takes extra precautions to make certain all of us are safe,” he says. “In any case. There is nothing special about this one.” Whether it’s his tone or his message, it’s comforting.
To the prospective jurors whose lives have been touched by violence, Windham offers sympathy, gives perspective, and explores how the experiences will affect their ability to be fair and impartial. In a room crowded with strangers, one woman shares that her father was convicted of molesting his children and grandchildren (presumably including her and her children); another describes the assassination of her uncle overseas. There are murders of relatives, friends and neighbors. A man’s brother was beaten to death. A child was kidnapped by an ex. Then there was an unpleasant incident in Germany in the 90’s. Judge Windham nods with understanding and leans in. “Let’s talk about that,” he says…
It’s a common misconception that a criminal trial begins with opening statements. In fact, it starts with jury selection. And that’s not just because choosing the right jurors influences the outcome of the trial. It’s also because it’s in these very early stages that lawyers begin trying their case — in subtle and not so subtle ways.
Deputy District Attorney John Lewin structures his voir dire like a fun pre-law class, defining legal terms such as “circumstantial evidence” and “reasonable doubt,” and then basically quizzing the prospective jurors on their understanding of those concepts. Using a large, mounted photo of a trashed kitchen, he asks the jury if they would conclude that a robbery had occurred. Jurors seem to enjoy the exercise, and Lewin is certainly in his element as they discuss the possibilities of what might have occurred. Lewin then holds up a picture of the same scene from a different angle – this one showing his late dog, Boomer, looking sheepish, surrounded by garbage. It seems reasonable to conclude Boomer (who Lewin says did not greet him when he returned home), is responsible for the mess. Is it possible that something else happened? That a wind blew through the chimney? Possible, yes. Probable, no.
Lewin polls the jury. On a scale of one to ten, with what degree of certainty do they believe Boomer is responsible? Most say 9 or 10, the lowest number is 7. All find Boomer guilty beyond a reasonable doubt. That’s based on circumstantial evidence, Lewin reminds them, which everyone comes to understand is not “fake evidence,” (as characterized in Perry Mason), but a different kind of evidence: indirect evidence, subject to different rules.
Lewin’s voir dire presentation falls into a steady rhythm, as he explains a term or concept, then asks for a show of hands.
Does anyone think there should be a statute of limitations on murder? The jurors are motionless. “Seeing there are no hands,” Lewin moves on to the next question.
Is anyone unwilling to judge or convict another person due to their religious beliefs? No takers.
“Seeing there are no hands”…
Does anyone believe all memories are created equal? Again, no takers. “Seeing there are no hands…”
The effect of Lewin’s patter is encouraging: They are making progress – things are moving ahead. Time is not being wasted.
Defense attorney Chip Lewis begins his voir dire with a lengthy, personal introduction, describing his upbringing in Texas, his life and family. When he begins questioning prospective jurors, he tends to repeat a question to make a point, and relies heavily on hypotheticals. His style appears to frustrate some.
Take a heated exchange between Lewis and a prospective juror in seat 4. “Mr. Lewis,” she says, “With respect, I think that there are mental calisthenics that…”
He demurs, “I’m sorry.”
The prospective juror continues, “Seriously. And that you have been asking a variation of the same thing to the point where I resent the shades of trying to get to a yes or no, and I feel that I have answered everything as closely as I could.”
“There are too many theoreticals, hypotheticals” she continues. And finally, she says “I have a question for you.”
“Yes Ma’am” Lewis responds.
“Every time you talk about Susan Berman, you say ‘Best friend Susan Berman. Best friend Susan Berman.’ You ask us all these hypotheticals, but you’re also sort of like kind of trying to inculcate in us that this is the best friend. How do we know it’s the best friend?”
It’s an astounding moment. For anyone in the room who isn’t paying attention, the prospective juror has just pointed out the subtext of voir dire – not only to define the terms of the trial but also to begin grooming the minds of the jurors. (Unsurprisingly, the defense team later uses one of their peremptory challenges to excuse this prospective juror from the jury.)
The defense must also determine the degree to which potential jurors have been influenced by the media. Have they seen the documentary series The Jinx, which ultimately led to Durst’s arrest for Susan Berman’s murder? Or have they seen television programs or movies based on Durst’s story? Have they read books about the case? How about footage of Durst on YouTube or Law and Crime Network? What About comedy sketches on Saturday Night Live?
For the prospective juror who has not seen The Jinx or heard about the case prior to their summons, there is the shocking narrative included in the 28 page juror questionnaire. Under the heading “Nature of Crimes Charged and Pretrial Publicity,” there is a brief summary of the events leading up to Mr. Durst’s arrest, the second paragraph of which reads:
“In 2001, Mr. Durst was charged with murder of his neighbor Morris Black in Galveston, Texas. Mr. Durst had been living in Texas disguised as a mute woman. Mr. Durst was arrested after a multi-state manhunt. On the basis of self-defense, a jury found Mr. Durst not guilty of murder but convicted him of charges related to the dismemberment and disposal of Mr. Black’s body.” And in case that description doesn’t resonate, there is a chilling coda: “Mr. Black’s head has never been found.” Question 70 of the questionnaire then asks, “Does the fact that Robert Durst was involved in the death of Morris Black, dismembered and disposed of his body automatically cause you to believe he is guilty of the murder of Susan Berman?”
What is an unwitting prospective juror to say? Understandably, this whole scenario is troubling, to say the least. But that is exactly why it needs to be explored – particularly by the defense, who wants jurors who can set this inconvenient piece of Durst’s past aside. Chip Lewis, in an effort to get prospective jurors past this gruesome admission, presents a hypothetical in which he murders Assistant DA Lewin in self-defense, then loads him into the back of his truck, drives to the ocean, dismembers him and throws him in the water. This intellectual exercise, grim as it is, does appear to win a few people over, for the moment at least.
But not everyone is swayed. Among the many prospective jurors who express disgust at dismemberment as well as a firm belief that someone capable of dismembering might also be capable of murder, there is the prospective juror in seat 3. An Asian American man with a youthful face and greying hair, he wears a faded burgundy tee shirt, and would fit in at Venice beach or next to you in line at your favorite food truck.
“If someone’s guilty of that, they’re capable of anything,” he says.
Then, choked up, he pauses and hangs his head, then raises it again. Silence. Ten seconds pass, then 15. The room is patient, waiting. Finally, he gathers himself and asks simply, voice cracking, “How could someone do such a thing?” Everyone catches their breath… and then the truth-speaking continues.
Voir dire in the People vs. Robert Durst takes eight days. By the time all 12 jurors and 11 alternates are finally sworn in, they will have completed their crash course in pre-law and settled back into in their rigid seats, resigned to the duty that lies before them. The out-of-town defense team now knows what a West LA jury looks like and how they think. In the words of one prospective juror, “Well, I feel that in Texas they had their case, they heard their testimony, they made their decision. And we’re going to do that in California.”
You can click here to read about the jury selected for The People vs. Robert Durst. Opening Arguments in the trial begin this morning.