Robert Durst Seeks New Trial After Murder Conviction
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Citing ‘The Jinx,’ Robert Durst Seeks New Trial After Murder Conviction in Killing of Friend Susan Berman

robert durst

Convicted murderer Robert Durst on Thursday filed court papers which ask a California superior court judge to order a new trial in the death of his friend Susan Berman.

A jury convicted Durst on Sept. 17 of killing Berman in the year 2000 in an execution-style shooting at her Beverly Hills home. Durst’s legal team is arguing that there wasn’t enough evidence to support the conviction and that the trial judge “erred in deciding questions of law during the trial.”

As to the sufficiency of the evidence, Durst’s team explained the law at length (citations omitted):

If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury’s verdict is “contrary to the . . . evidence.”

In doing so, the court acts as a 13th juror who is a “holdout” for acquittal. Thus, the grant of a section 1181(6) motion [for a new trial] is the equivalent of a mistrial caused by a hung jury.

Although the trial court is to be “guided” by a presumption in favor of the correctness of the jury’s verdict, this means only that the court may not arbitrarily reject a verdict which is supported by substantial evidence.

“Here, it is respectfully submitted that the verdict was contrary to the law and evidence, and there was insufficient evidence to prove each required element beyond a reasonable doubt,” Durst’s lawyers argued. “Specifically, there was insufficient evidence to establish that Mr. Durst committed First Degree Murder and that he shot and killed Susan Berman with a firearm.  Moreover, there was insufficient evidence to establish the special circumstance that Mr. Durst killed Susan Berman because she was a ‘witness.'”

“At trial, there was no forensic evidence to support that Mr. Durst allegedly killed Kathie Durst or that he killed Susan Berman,” Durst’s attorneys continued. “Moreover, it is respectfully submitted that there was insufficient evidence at trial to establish that Mr. Durst called Susan Berman to coordinate a staged call to Kathie’s medical school and Dean Kuperman.”

Durst’s legal team cited an entire page of trial testimony to articulate the point.

The defense team also suggested that the “lead detective in the reopened investigation” involving Durst’s wife Kathie’s disappearance “found no evidence to support that Mr. Durst killed Kathie Durst or that Susan Berman was a witness or assisted Mr. Durst in any criminal law.” The defense further argued that prosecutor John Lewin “presented no evidence at trial which connected any weapon used in the murder of Susan Berman to Mr. Durst.”

RELATED: Kathie Durst’s Family Demands Westchester ‘Do the Right Thing’ Now That Robert Durst Has Been Convicted of Murder. Here’s What the DA’s Office Had to Say.

“Specifically, the alleged murder weapon was never recovered, Mr. Durst was never found to possess the alleged murder weapon, and the shell casing found in Ms. Berman’s house did not match any other casing in the police system or any of Mr. Durst’s firearms,” the defense continued — placing a considerable emphasis on a type of evidence that is frequently attacked by defense attorneys in other cases as so-called “junk science.”

Yet the defense continued as follows: “as this Honorable Court will recall, there was no forensic evidence at trial which established that Mr. Durst shot and killed Susan Berman. Rather, the evidence at trial established that the crime scene investigation was incomplete and flawed.” Among the alleged flaws was that improper or unauthorized “individuals were able to access Ms. Berman’s home even after her body was found.”

The defense further alleged that Berman “made up stories for attention, had enemies” and “would open her door for a stranger.” Therefore, “rather than relying on forensic evidence at trial, the prosecution largely relied on witnesses who provided statements to law enforcement, many years after Susan Berman’s death,” the defense alleged.

After arguing the evidence was insufficient for the foregoing and similar reasons, the defense then presented a laundry list of errors the trial judge allegedly made during the lengthy trial proceedings. They say one of those alleged errors was allowing jurors to see footage from The Jinx, an HBO documentary about Durst:

1. The Court erred in not granting a mistrial due to the extended delay in the trial between March 2020 and May 2021.

2. The Court erred in permitting the prosecution to introduce evidence related to the Morris Black case, including admitting the numerous photographs of the severed body parts of Morris Black.

3. The Court erred in permitting the prosecution to introduce evidence related to Mr. Durst wanting Kathie Durst to have an abortion.

4. The Court erred in permitting the prosecution to introduce evidence related to the alleged incident involving Peter Schwarz.

5. The Court erred in not allowing Mr. Durst to introduce evidence of sightings of Kathie Durst in New York City, including in relation to Eddy Lopez.

6. The Court erred in permitting the prosecution to introduce evidence related to alleged incidents of domestic violence between Mr. Durst and Kathie Durst.

7. The Court erred in permitting the prosecution to introduce evidence that Mr. Durst allegedly threatened his brother, Douglas Durst.

8. The Court erred in permitting the prosecution to introduce evidence related to the interrogation in New Orleans after Mr. Durst was arrested.

9. The Court erred in permitting the prosecution to introduce evidence related to the search of Mr. Durst’s hotel room in New Orleans.

10. The Court erred in prohibiting Mr. Durst from presenting third party culpability evidence.

11. The Court erred in denying the request to recuse prosecutor Lewin as he was a witness related to evidence presented at trial.

12. The Court erred in showing the jury the movies All Good Things and the Jinx.

13. The Court erred in applying the journalist shield for Andrew Jarecki and his Hit the Ground Running Staff.

14. The Court erred in finding that Andrew Jarecki and his Hit the Ground Running Staff were not agents of the prosecution and law enforcement.

15. The court erred in denying Mr. Durst’s pre-trial request to exclude handwriting evidence.

The defense said the 15 errors listed above “individually, and cumulatively, prohibited Mr. Durst from having a fair trial.”

The defense hopes to hash out the matter during an Oct. 14 court hearing.

Read the document below:

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is a former anchor and executive producer for the Law&Crime Network and is now a Senior Editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.