Robert Durst’s defense team has asked for a mistrial in the real estate scion’s Los Angeles murder case, arguing that delays in court proceedings caused by the coronavirus will make it impossible for him to receive a fair trial.
Durst was standing trial in the 2000 murder of his longtime confidant Susan Berman when the pandemic paralyzed most of the nation. Prosecutors contend that Durst killed Berman to prevent her from spilling incriminating information about the 1982 disappearance of his first wife, Kathleen, whose body was never found.
Durst, 77, was charged with Berman’s murder in 2015, around the same time an HBO documentary reignited national interest in the case. He has pleaded not guilty.
Trial testimony was suspended March 12 due to the virus.
“Even in the best case scenario, assuming it will be safe to resume trial in early June, more than eighty days will have elapsed before the jury reconvenes,” the 29-page motion said.
Durst’s defense team argued that the gap in time would make it “unrealistic” to believe jurors could retain important details from earlier testimony or avoid outside influences.
“The risk that jurors will not be accurately able to recall the evidence introduced prior to adjournment is heightened here. The trial is expected to be a long and complex one, lasting approximately four to five months,” the motion said. “The People’s witness list contains approximately 115 names.”
Durst’s attorneys also expressed concerns about health risks if the trial were to proceed: Five jurors are older than 65, and two members of the defense team are over 75, according to the motion. Durst also has a history of medical problems.
“At this time, forcing a relatively large group of trial participants, including several high-risk individuals, to congregate in facilities ‘ill-equipped’ for social distancing would create an unjustified risk of serious illness,” the motion said.
A spokesman for the Los Angeles County district attorney’s office declined to comment.
The coronavirus outbreak has frozen most court proceedings statewide. On Wednesday, California’s chief justice, Tani G. Cantil-Sakauye, extended a previous emergency order delaying trials up to 90 days. Other operations have been curtailed to limit the risk of spreading the coronavirus in the cramped confines of most courtrooms.
Concerns about the pandemic had been raised in the Durst trial before it was suspended.
Durst’s brother invoked the coronavirus to avoid answering a subpoena ordering him to travel from the Bay Area to Los Angeles to testify. Thomas Durst, 70, said he presented a note to prosecutors in which his personal doctor strongly advised “against any travel, particularly airplane travel,” citing unspecified medical issues. The younger Durst ultimately appeared and took the stand sporting latex gloves.
In a motion filed Wednesday, prosecutors sought to have Judge Mark E. Windham declare several witnesses unavailable to appear personally because of the pandemic. The four witnesses, all of whom are older than 65 and reside in New York or New Jersey, were questioned in Los Angeles in 2017 so their testimony could be preserved via videotape should they die or become unavailable before the trial.
Among those witnesses was Nick Chavin, a longtime friend of Durst who said the defendant admitted to killing Berman after they had dinner in New York City in 2014.
“We must not put these witnesses’ health in peril when there is prior sworn testimony that was memorialized precisely and in preparation for the situation we face today,” the prosecution’s motion said.
The next hearing in the case is scheduled for June 23 in the Airport Courthouse.