Judge Mark Windham planned to question jurors in Los Angeles County Superior Court to see if they can complete their assignment that was interrupted in March 2020 during the pandemic. If so, it could be a first for the U.S. legal system.
The length of the stoppage is unprecedented and it’s the highest-profile U.S. case postponed because of the pandemic, Durst’s lawyers say. They have repeatedly — and unsuccessfully — sought a mistrial because they argued the delay harmed his chance of a fair trial.
Windham denied a defense request Monday to suspend the case further because Durst has bladder cancer and myriad other health problems that require hospitalization.
“The question isn’t whether he can endure the rigors of the trial,” attorney Dick DeGuerin said. “It’s whether he can survive at all.”
Deputy District Attorney John Lewin scoffed at claims Durst needed to be released to a hospital for treatment, saying he was getting high-quality care at the jail.
“It’s a get out of jail free card,” Lewin said. “The goal here is simply to have this trial go away.”
Durst was not in court because he refused to leave his Los Angeles County jail cell, Windham said, though DeGuerin disputed that account.
Durst, 78, an heir to a New York commercial real estate empire, has pleaded not guilty in the killing of his best friend, Susan Berman, at her Los Angeles home in 2000.
DeGuerin said measures taken to prevent the spread of the coronavirus would harm Durst’s defense by keeping his lawyers scattered throughout the courtroom and unable to confer. Windham said the measures were required to keep everyone safe, though he and all the lawyers have been vaccinated.
Windham moved the case to a larger courtroom in Inglewood to accommodate the distancing needed to resume.
The lead lawyers were seated alone in the front of the courtroom and their co-counsel were spread throughout jury boxes on both sides of the courtroom. Plexiglas panels were placed between the lawyers and a court stenographer.
Jurors were handed zip-lock bags with note pads, a mask and tissues as they entered the courtroom and took seats in the gallery.
The panel had 12 jurors and 10 alternates, one fewer than when the case was recessed.
Windham rejected a defense motion to ask the jurors a list of questions. He said he would ask if they had read or heard about the case during the break and whether any extreme hardship would prevent them from serving four to five more months.
Prosecutors say Durst silenced Berman before she could tell police she helped him cover up the killing of his wife, Kathie, in New York in 1982.
Durst, who is worth more than an estimated $100 million, is being held without bail. He is only charged with Berman’s killing but prosecutors are using his wife’s disappearance and a neighbor’s slaying in Texas to build their case against him.
He was acquitted in the Texas case after he testified he shot the man in self-defense. He has never been charged in his wife’s suspected killing and has denied any role in her disappearance.
During opening statements in Los Angeles, defense lawyer Dick DeGuerin, who defended Durst in Texas, said Durst didn’t kill Berman and doesn’t know who did. But he said his client had found her body, panicked and bolted.
Durst sent police a cryptic note alerting them to a “cadaver” in the house only to ensure she would be found, DeGuerin said. Durst had long denied penning the note.
Durst was arrested in New Orleans in 2015 on the eve of the final episode of “The Jinx: The Life and Deaths of Robert Durst,” an HBO documentary in which he was confronted with the cadaver note and a letter he once sent Berman with the same block print handwriting and the city of Beverly Hills similarly misspelled “Beverley.”
Before being shown the letter he had written to Berman, Durst told the filmmakers that only the killer could have written the cadaver note.
After the “gotcha” moment on camera, he was caught on a hot mic saying to himself in a bathroom, “You’re caught! What the hell did I do? Killed them all, of course.”