A look at HBO’s The Jinx, Robert Durst, and Texas Law

If you have been like me, then you have been glued to HBO’s new documentary “The Jinx” about real estate heir Robert Durst and how he has been linked, in one way or another, to the disappearance/death of his wife, the murder of his friend Susan Berman, and the death of a man in Galveston, Texas.  And if you watched the most recent episode or have been watching any major news outlet, then you know that Durst was arrested over the weekend for the 2000 murder of Susan Berman in Los Angeles, California.  In addition, you know that while being mic’d up during his documentary interview he can be heard saying,  “There it is. You’re caught.” and then “What the hell did I do? Killed them all, of course.”  Here is a quick look at how a statement like that is perceived under Texas law and whether or not a state prosecutor should use it.

ADMISSIBLE UNDER TEXAS LAW?

Was it a confession? Or was it something else (frustration, sarcasm, ramblings)? It this happened in Texas, would it be admissible under Texas Law? As a criminal defense lawyer and former prosecutor in Tarrant and Dallas County, Texas, the first question is whether the statement would be admissible at trial.  The Texas Code of Criminal Procedure 38.22 is the primary law that deals with the admissibility of statements in Texas.  And typically, a statement like the one Durst made would be admissible as long as the State could authenticate the recording (prove that it was, in fact, Durst who made those statements).  If authenticated (which seemingly would/should not be too hard to do), then the next question is if it’s a voluntary statement (the key requirement in whether the statement is admissible).  If the statement was made voluntarily, then it’s generally admissible.  Here, the statement was not made to a law enforcement official, it was not made during a custodial interview (he was not arrested or in custody), he was not being coerced or forced to make those statements (he volunteered to give the interview), and the statements appear to be legally recorded (again, Durst agreed to give the interviews, be recorded, and be mic’d up).  So it appears that the statements would be admissible during a Texas trial.

SHOULD THE STATE USE IT?

The next question turns to whether they should use it and that’s a much more complicated question. On the surface, it seems like Durst may have been confessing to “killing them all.” But as a former prosecutor, I would exercise caution in relying too much on a statement like this, if relying on it at all.  Durst and his criminal defense team will certainly have an explanation ready for the jury.  I know I would (i.e. Durst was merely frustrated and rambling about the constant accusations and was simply saying what everyone wants him to say, not what he actually did, which is strengthened by his actual denial when asked the questions during an interview).  And it’s important to note that Durst already testified at his previous trial and it proved extremely successful.  And if I were to use it, it would be a small piece in a much larger puzzle, a puzzle that must be backed by strong objective evidence that cannot be easily spun as misconstrued words.  A statement like that cannot be the backbone of the State’s case, but to date, authorities have not revealed what new evidence lead to his recent arrest for the 2000 murder.  To be continued…

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Bryan Hoeller, is a criminal defense lawyer in Fort Worth and is a former prosecutor in Tarrant County and Dallas County.  If you need help, he can be reached at 877-208-3382.