By: Robert A. Bianchi, Esq.:
On April 4, 2015, I had the privilege of appearing to discuss the Robert Durst case on Fox’s Justice with Jeanine Show, starring host Jeanine Pirro.
I really enjoy Judge Jeanine. She is witty, smart, the show is fast, and she has a great personality. She is really a pleasure to be on with. Now admittedly, both of us being former lead County Prosecutors/District Attorneys makes us part of a small circle of professionals in the criminal justice field, so it is obvious that we share a lot in common. However, the bottom line is I very much enjoy being on set with Judge Jeanine.
As for the Robert Durst case, the prosecution needs to reset and start getting on its game. A little strategy will pay huge dividends down the road. But so far, there have been some basic mistakes.
Durst has two cases pending: a murder in California and the other, a drug and gun case in Louisiana. Currently, he is being held in Louisiana on the gun case. Louisiana needs to try their case first because it is much easier to win a conviction there. In addition, the sentence he would receive at 71 years of age is tantamount to a life sentence.
Then, when the “heat dies down” and the prosecution in California knows that Durst is already serving a life sentence in Louisiana, it makes its more complex murder case easier to try. It gives the prosecution time to prepare their case in California and also takes a lot of pressure off of them if he is already serving a 10-20 year sentence in Louisiana for the drug/gun charges.
Prosecutors and police have already made unnecessary problems for themselves in the Louisiana case:
1. Search and seizure – Here, a simple warrant would have ensured that the gun and drugs found in the hotel room were admissible evidence in this case. That is because it would eliminate that argument that the evidence police seized should be suppressed for violating the warrant requirement of the Fourth Amendment of the United States Constitution, which makes searches without a warrant are “per-se illegal.” Here, the officers jumped too impetuously and made a basis mistake by searching Durst’s hotel room before getting a warrant. This mistake will actually cause this case to be dismissed if that evidence is disallowed in court at trial for a violation of the warrant requirement. As a former lead County Prosecutor and now Criminal Defense Attorney for over 26 years, I have seen this problem between police and prosecutors time and time again. A case is not about just making an arrest, but also about being able to prove your case in court. This warrantless search makes the prosecution’s job far more difficult and that is a needless shame;
2. Probable Cause Hearing – At the hearing to establish probable cause, the prosecution was not ready and, as a result, the “government told the police agents under to subpoena to disregard the court authorized subpoenas, and not to show up at the hearing. Consequently, the judge was angry at the prosecution and has scheduled a hearing this week to determine if they should be held in contempt of court. This is a very unneeded and unnecessary distraction for the prosecution that was easily avoidable.
3. This is an easy prosecution if done correctly. All the prosecution has to do is present this case to the Grand Jury in a 10 minute presentation with one witness and secure an indictment; as opposed to a probable cause hearing where several of the State’s witnesses take the stand and provides the defense all kinds of opportunities to cross examine each witness which can later be used by the defense to attack those same witnesses at the time of trial. An indictment gives the prosecution complete control eliminates the courtroom spectacle, witnesses having to appear, and the drama that has already been caused in this case due to prosecution missteps. It is trial law 101 and the prosecutors better go back to class and get back to the basics.
As former New Jersey Prosecutors, and now New Jersey Criminal Defense Attorneys, the attorneys at The Bianchi Law Group continually advise, train, and lecture attorneys on the “art” of trial work. The best attorneys know how a case progresses, how to maneuver the case so that it is not damaged along the way, and trial tactics that increase the chance of being more likely to win the case.
On this all important score, the defense attorneys for Robert Durst are clearly winning at this point. Hopefully, the prosecutors will reset and gain their courtroom composure and not make any more damaging mistakes.