Andrew Jarecki and Marc Smerling’s HBO serial “The Jinx,” the story of suspected killer Robert Durst, made for thrilling television. It has ignited debates over journalistic ethics — whether interviewers should remind a source that he is being recorded (even in the bathroom), how soon to bring evidence to the police (even if it could spoil the denouement of your true-crime narrative). These issues we leave to the Media Crit Industrial Complex.
But “The Jinx” also offered some glimpses into the American criminal justice system, and what we saw did not always fit the version portrayed in popular culture. Here are a few things that struck us.
Police are not always as on it as they seem on TV. The 1982 disappearance of Durst’s first wife, Kathleen McCormack Durst, could hardly have been more suspicious. The couple had a history of domestic violence, and Kathleen, a fourth-year medical student, had recently rented her own apartment and hired a divorce lawyer. There were also several early inconsistencies in Durst’s account of what he had done the evening she disappeared. Yet the NYPD hardly investigated, choosing not to search the Dursts’ home in Westchester County, nor the woods and lake surrounding the property.
“The Jinx” implies that the power and influence of Seymour Durst, Robert’s real estate magnate father, was somehow behind the lax investigation. But the miniseries is vague on exactly how the Durst family may have wielded that power.
The absence of a body certainly contributed to the NYPD’s lethargic reaction to Kathleen’s disappearance. The detective in the case, Michael Struk, acknowledged on “The Jinx” that because there wasn’t a body, he was not under much pressure from his superiors to investigate aggressively.
Still, cases of “missing white women” are less likely to go totally cold. Former Westchester County District Attorney Jeanine Pirro reopened the Kathleen Durst case in 2000, around the same time her then-husband was convicted of tax fraud (an event “The Jinx” doesn’t mention). What would be more distracting to the media and public than the tragic case of a beautiful, wealthy, blonde wife gone missing?
Durst’s defense team was later able to use what they sneeringly called Pirro’s “ambition” to make him more sympathetic to a Galveston, Texas jury. And yet, it was Pirro’s investigation that uncovered several new leads in the case. Her team had planned to interview Robert Durst’s longtime friend and media spokesperson, Susan Berman, but before that could happen, Berman was murdered in her Los Angeles home on December 23, 2000.
On Tuesday, Durst was charged with first-degree murder in the Berman case, in part because of new evidence brought to light by “The Jinx” — including a Durst handwriting sample that appears identical to a note the likely killer mailed the Beverly Hills police, informing them a “cadaver” was at Berman’s address. Murder has no statute of limitations.
Money can buy a lot of defense. Durst spent $1.3 million on his 2003 trial in Texas, in which he was charged with the 2001 murder and dismemberment of Morris Black, his 71-year-old neighbor. At the time, Durst was on the run from investigators in New York and Los Angeles who were looking into the deaths of Kathleen and Susan Berman. He was hiding out in Galveston, Texas disguised as a woman named Dorothy Ciner. The prosecution’s theory was that Black, a down-on-his-luck loner, had discovered Durst’s true identity and had somehow tried to extort him.
Durst hired famous Texas defense attorney Dick DeGuerin, a showman who wore a cowboy hat and boots in court and had represented Kay Bailey Hutchison when she was indicted for ethics violations. But Durst didn’t stop there. He also purchased the talents of Michael Ramsey, who would go on to represent Enron CEO Kenneth Lay, and Chip Lewis, a former Texas prosecutor. “The Jinx” plays a tape of a prison phone call between Durst and his current wife, Debrah Lee Charatan. Durst tells her he hopes the gilded defense team would get him acquitted.
And it did. Footage from the trial shows the straight-shooting prosecutors were simply outmatched by Durst’s theatrical legal team, which contended he had shot Black in self-defense during a tussle over a gun. Durst’s lawyers staged reenactments of the supposed event. On the stand, Durst admitted to dismembering the body, packing it into black garbage bags and dumping them in Galveston Bay. (Unfortunately for Durst, the bags floated.) But jurors bought the self-defense story, telling Jarecki’s team in interviews that they understood why a man on the run from a zealous prosecutor — Pirro — would have been too scared to call the police after acting in self-defense.
Circumstantial evidence can be very powerful. On “Law and Order” and “CSI,” “circumstantial” is often synonymous with “weak.” But in real life, it is often enough to make a case. Circumstantial evidence, entirely unaccompanied by direct evidence, regularly results in convictions, especially when many pieces of circumstantial evidence corroborate one another. Fingerprints are circumstantial; testimony by a witness who saw the defendant “leaving with a bloody knife” is circumstantial; the testimony of expert witnesses is circumstantial; even blood analysis and DNA evidence are mostly circumstantial, because a defendant’s DNA at a crime scene only implies that he or she did the crime. Moreover, circumstantial evidence is almost always needed to prove motive and intent, because the perpetrators of crimes rarely write down why they did what they did.
So far, the emerging case against Durst in the Berman killing seems to rely in part on a very strong piece of circumstantial evidence: the handwriting samples. Judging by the HBO audience’s shocked reaction to this evidence, not to mention Durst’s own freakout when confronted with it, the fact that it is circumstantial may matter little to a jury. “Jinx” director Jarecki told The New York Times that when he heard Durst’s mutterings to himself in the bathroom after being shown the handwriting samples (“What the hell did I do? Killed them all, of course.”), he took it to be a “confession.” [Jarecki is on the advisory board of The Marshall Project.]
Mental illness might be the elephant in the room. As is true of many crimes in the United States, where approximately 50 percent of inmates in prisons and jails have struggled with mental illness, the three murders in this saga may have been committed by a mentally ill man. But “The Jinx,” like many courtrooms, addressed the subject of mental illness only implicitly.
Robert Durst’s history of bizarre behavior, if not diagnosed mental illness, is long. Back when he worked at the family office, he would regularly urinate in wastebaskets, despite the protestations of the cleaning staff, according to his brother Douglas Durst. (Robert was also arrested last year for urinating on a candy rack at a CVS in Texas, an act that Durst’s lawyer attributed to Asperger’s syndrome.) Douglas also claimed that during the time that Robert lived with his first wife, Kathleen, seven of their pet dogs mysteriously disappeared. Robert’s habit of talking to himself has accelerated over the years, according to family members. Robert is “obviously very disturbed,” Douglas told The New York Times. “He is a true psychopath, beyond any emotions. That’s why he does things, so he can experience the emotions that other people have vicariously.”
Of course, none of that establishes that Robert Durst is mentally ill, especially in the absence of testimony from his doctors. In fact, “The Jinx” tells us that Durst, along with his current wife, fired his original lawyer in the Texas murder case because they feared an insanity defense. But given the nature of his whispered “confession” on Sunday night’s episode — a soliloquy into an open microphone — insanity may be a plea that his high-powered lawyers now find hard to resist.
