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Robert Durst’s fate will rest with 12 jurors, the only audience that matters now

Robert Durst
Robert Durst, 76, is accused of murdering his close friend Susan Berman in 2000.
(Gerald Herbert / Associated Press)

The story of New York real estate heir Robert Durst has been chronicled for the masses in lurid and often gory detail.

There was the mysterious disappearance of his wife in 1982, which sparked a frenzy of tabloid coverage and a movie on Lifetime. National media converged on Galveston, Texas, in 2003 when Durst was acquitted of murdering his neighbor, even though he admitted to chopping up the man’s body and disposing the pieces into the Gulf of Mexico. And in 2015, millions watched HBO’s “The Jinx: The Life and Deaths of Robert Durst,” a six-part series that explored Durst’s close bond to people who’ve met early demises, including his close friend Susan Berman, who was shot execution-style in Los Angeles in 2000.

Now only one audience matters, and they’ll decide the fate of the 76-year-old Durst as he defends against the charge that he killed Berman.

On Wednesday, the L.A. County district attorney’s office is expected to begin presenting its painstakingly researched case to 12 jurors and offering evidence for the theory that Durst shot Berman in the back of the head to prevent her from ever speaking to law enforcement about the disappearance of Kathleen McCormack Durst.

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The eight-woman, four-man panel was seated and sworn in last week. Attorneys are midway through the task of choosing a dozen alternates for a trial that’s anticipated to last well into the summer.

The process has played out in the Airport Courthouse near LAX, in a cross between a casting call and a group interrogation. Prospective jurors have faced questioning in open court about their deepest beliefs and shared some of their most painful memories while lawyers try to pinpoint biases and weed out those they guess will be unfavorable to their case.

The retired FBI special agent who golfs weekly with friends from the California Highway Patrol and the LAPD made it onto the panel. So did the financial analyst whose mother was a victim of domestic abuse.

Most did not. An assistant U.S. attorney was booted, as was the Russian emigre who acknowledged she was prejudiced against the justice system. Also removed from the pool: a man who said he worked for HBO, donned a T-shirt with the network’s logo and said his job involved ensuring “The Jinx” was available for viewers in the network’s carousel of top programs.

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“Each side has its own story it’s going to tell,” said John G. McCabe, a cognitive psychologist and trial consultant who is not involved in the case. “The question for the lawyers has been: Is this a person who will go with our story or not?”

Durst has faced the uncertainty of trial before. In 2003, jurors acquitted him of murdering his neighbor Morris Black despite a set of unflattering facts: Durst admitted to shooting Black, slicing up his body and cleaning up the bloody scene. He claimed he shot his neighbor in the head in self-defense.

“It was an amazing case that was won in jury selection,” said Robert Hirschhorn, a lawyer who worked as the defense team’s jury consultant in Galveston. He was upfront about liking Durst, saying, “I’d let Bob babysit my kids.”

In evaluating a panel, Hirschhorn said he dwells less on demographics — age, gender and race — than on life experience and values. For jurors, he said he preferred the naturally inquisitive and skeptical. He also looked for “CSI jurors,” nicknamed for the CBS police procedural “CSI: Crime Scene Investigation,” and said those jurors will scrutinize evidence in detail and make sure it is sound.

“If you have a murder case that hinges primarily on circumstantial evidence — there’s no fingerprints, no weapon — those ‘CSI jurors’ will really question the state’s case,” Hirschhorn said.

The district attorney’s office declined to comment about their pretrial process. In court before would-be jurors, the prosecution belabored the point about ignoring the noise outside and instead focusing on the testimony presented in court.

Deputy Dist. Atty. John Lewin, the lead prosecutor, also asked potential jurors whether they’d view Durst differently just because he was aged and infirm.

“Its OK to want to see the good in people,” Lewin said. “Do you understand that as jurors, you have to look at the evidence, and if the evidence points to not-so-good, you have to accept that?”

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At trial, both sides have tactics at their disposal to gain an advantage before the jury. Lawyers can convene focus groups or mock juries to test arguments, and McCabe said he’d be “totally surprised” if Durst’s lawyers weren’t refining their defense before a mock panel.

Mock juries may meet in hotels or conference rooms and sign non-disclosure agreements or protective orders. During a run-through, attorneys will ask for feedback as they tweak arguments, McCabe said.

“These are super skilled lawyers,” he said, “but you get an echo chamber when you are preparing for a trial like this.”

Some defense teams with ample resources may even have a “shadow jury,” where a group is hired that resembles the general makeup of the panel in court and attends each day of the case as a member of the public. Lawyers get real-time commentary from the “shadow” group.

It’s unclear whether Durst’s attorneys were using any sort of mock panel. And it was doubtful that any shadow jurors could covertly fill the compact courtroom: Only two members of the public will be allowed to view the case each day on a first-come, first-serve basis.

In Los Angeles, the jury selection for Durst’s second trial began in January, when 414 potential jurors received a 28-page questionnaire. Along with name, age and occupation, the lawyers sought answers about a potential juror’s parents and children, inquired about attitudes toward wealth and law enforcement and membership in groups like the National Rifle Assn. or American Civil Liberties Union. The form also gauged familiarity with autism or Asperger’s syndrome.

Many questions probed what potential jurors knew about the man at the center of the case. Have you formed an opinion about Robert Durst? Would you expect the defendant to testify in his own defense?

“I think in any high-publicity case, the goal is to determine which people have such a strong preconception that they can’t perform their jury function,” said David Chesnoff, a veteran Las Vegas attorney who is on Durst’s defense team.

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Prospective jurors have responded with candor. “Charming psychopath,” said one woman. “It doesn’t look good,” said a driver for Ralphs who lives in Windsor Hills. Another said Durst “is dangerous and should not be free.” An L.A. attorney opined that Durst was flat-out guilty.

A Santa Monica resident who worked in accounting for a health and wellness business said he did not see “The Jinx,” but read about the case and watched clips online.

“Do you believe he’s guilty,” asked Chip Lewis, one of the defense attorneys.

“I believe he’s guilty of all three murders,” the man said, his arms folded.

He was later excused from the courtroom.

Durst’s lawyers have used such responses — 60% of potential jurors said they were already aware of the case — to bolster a last-ditch effort to move the trial out of Los Angeles County, filing a motion that claimed the torrent of publicity rendered a trial here unfair.

“Well over half of these have expressed opinions that the defendant is guilty,” said a declaration from Lois Heaney, a jury consultant for Durst who also worked on defense teams for Robert Blake and the Menendez brothers.

Prosecutors noted, however, that the defense included in the questionnaire a detailed, 235-word summary of accusations against Durst that could have influences juror opinions about him.

The motion to move the trial out of L.A. appeared unlikely to succeed, and Judge Mark E. Windham seemed miffed at the effort. Citing court procedure, the judge scheduled the motion to be heard on March 6, after opening arguments were expected to begin.

Prosecutors have not filed a response, and a spokesman for the district attorney’s office declined to comment.

Windham has seemed to take it as a given that jurors already know about the famous defendant whom the courtroom bailiff addresses as “Bobby.”

The judge and attorneys for both sides have harped on the panel to wait for the evidence over the next five months.

“If you’ve seen the stories,” Windham said, “it’s all going to be here, and you’re going to see it live.”


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