The Robert Durst Case: A Prosecutor’s Perspective on Murder, Evidence, and Civil Suits

The Robert Durst case has captured public attention for years, revealing a strange and complex legal saga involving accusations of multiple murders, “cold cases,” and the significant impact of civil litigation on a criminal defendant’s legal strategy. Drawing from our experience as New Jersey Prosecutors and New Jersey Criminal Defense Attorneys, here is a breakdown of the key legal issues and turning points in the Durst proceedings.

The Power of the Recorded Admission: A Violations of the “Golden Rule”

During his extensive interviews for a cable TV show about the “cold cases,” Robert Durst made a critical error that may have breathed new life into an otherwise unprovable case. Durst made a connection to evidence from years ago that placed him at the scene of the crime.

After making this mistake, he went into the bathroom and, while his audio mike was on, made some damning statements regarding his responsibility for the murders.

As a Former New Jersey Prosecutor and now New Jersey Criminal Defense Attorney all I can say is that Durst violated the “Golden Rule”—i.e., keep your mouth shut. He may have now talked his way into a conviction. Once again, vanity and arrogance can be a prosecutor’s greatest investigative tool.

The ultimate objective of the defense team in the criminal case would be to not allow Durst’s statement he made on the show to be admitted as evidence during the trial.

The Murder Charge and the Need for Evidence

Robert Durst was charged with the 2000 murder of his best friend, Susan Berman, who was killed execution style in her Hollywood home.

The case against Durst, like many homicide cases we have tried, hinges on a critical distinction: the fact that someone knows of a murder does not mean that they were the person that murdered the victim.

In this case, there is very powerful direct and circumstantial evidence that Durst knew of the murder. However, this is not the end of the inquiry. Prosecutors must be very careful to fill the gap with solid evidence that ties Durst directly to the actual killing.

• The Prosecution’s Challenge: Working investigations and putting a case together that will withstand the rigors of proof beyond a reasonable doubt is difficult. Prosecutors must be careful not to jump to conclusions or stop pursuing continued leads.
• The Defense’s Strategy: The defense attorneys will assuredly be hammering this point, especially if the envelopes (a key piece of evidence) are the only connection the prosecution has to tie Durst into the murder. If the evidence is only circumstantial, the likelihood of a conviction is in great peril.

The $100 Million Civil Lawsuit and the Fifth Amendment Dilemma

The complexity of Durst’s situation was compounded by a civil suit brought by his former wife’s family, seeking monetary damages for not being able to give her a proper burial—a legally recognized cause of action in civil law. The family alleges that Durst killed his wife and thereby deprived them of a burial since her body was never recovered.

This civil suit introduced a nuanced, complex, and dangerous scenario for Durst.

The Conflict Between Civil and Criminal Law

1. Criminal Law: A defendant is entitled to exercise their 5th Amendment right to remain silent when questioned by law enforcement about a crime.
2. Civil Law: While the individual still has the right to remain silent in the civil case, a civil judge may enter a “default judgment” against that person for failing to answer questions. This means that by exercising their right to remain silent, the person essentially loses the civil case by default.

Tactically, a civil suit following an allegation of a crime puts any criminal defendant on shaky legal ground. Anything they say in the civil case may very well lead to evidence that can be used by prosecutors to convict them of a crime.

It was clear from the outset that this civil case would significantly affect Durst’s criminal case as it moved forward.