A Criminal Defense Lawyer Told Us Robert Durst's 'The Jinx' Confession Is '100 Percent Admissible' in Court

By now, everyone knows that the subject of the HBO documentary series was caught on tape muttering what sounded like a confession—but it's not clear yet whether those remarks will count against him at a trial.

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Mar 16 2015, 6:35pm

Robert Durst's arrest mug shot courtesy Orleans Parish Sheriff's Office

By now, even if you've never seen a single episode of HBO's The Jinx, you know that creepy old guy Robert Durst said he "killed them all" after being interviewed by the show but while his mic was still on. Unlike just about every other TV show, social media denizens haven't even tried to conceal or couch the extraordinary spoiler with a warning. After all, given that this is a documentary that led to its protagonist getting arrested in real life this weekend, the agreed-upon rules about ruining plot lines don't apply.

For those catching up in wake of the explosive finale, Robert Durst is the son of Seymour Durst, one of the most powerful real estate moguls in New York City. Robert was long considered the (super) strange one of the family, with his younger brother Douglas telling the New York Times he used to piss in wastebaskets, lie constantly, and talk loudly to himself.

That last part is important.

Durst first popped on the radar of law enforcement when his wife, Kathie, disappeared in 1982. He drew further suspicion when his longtime confidante, Susan Berman, was killed execution-style in 2000. He was finally charged with murder in 2001, for killing and dismembering a neighbor in Galveston, Texas. But he was acquitted even though he confessed to chopping up the body because his (pricey) lawyers successfully made the case he acted in self-defense.

The Jinx is filmmaker Andrew Jarecki's investigation of those murders, and it's most notable for the inclusion of Durst himself. After all, it doesn't take a high-priced criminal defense lawyer to know that it's probably not in your best interest to participate in a documentary about murders you have been accused of committing. Case in point: After his final interview, Durst retreated into a bathroom and gave a bizarre sorta-confession. Without realizing his mic was hot, and keeping with his habit of talking to himself, he said, "What the hell did I do? Killed them all, of course." It was one of the most chilling moments ever broadcast by a mainstream cable channel, and Esquire has already suggested it will "likely be remembered as one of the most jaw-dropping moments in television history."

But besides making for captivating TV, The Jinx is part of an emerging genre of true-crime journalism—pioneered only a few months back by the hit podcast Serial—that is presenting people in the legal profession with a slew of tricky questions. Never before have audiences watched an investigation unfold in real time, and besides complicating the question of jury selection, this kind of popular programming is blurring the lines between journalists and law enforcement officers.

Indeed, one of the most vexing questions to come out of The Jinx is whether the accidentally-recorded confession is admissible in court.

Harvard legal historian Noah Feldman, writing for Bloomberg View, says the answer is no because "Durst's question and answer isn't at all the same as a positive statement that Durst committed the murders." According to the law professor, the so-called confession was more of a soliloquy in which Durst floated hypotheticals:

Even the question-and-answer form ("What the hell did I do? Killed them all, of course") is reminiscent of the untrustworthy soliloquies delivered by Hamlet. The soliloquist asks himself the big questions while alone on stage ("To be or not to be?"), and tries on different answers. Yes, Shakespeare's Richard III announces his plans for murder to the audience. But the better model here is Hamlet, who says both that he is mad and that he is mad north by northwest, meaning that he may not be mad after all. Ambiguity is the order of the day, and we accept the ambiguity in part because we know that talking to yourself isn't like talking to other people.

But criminal defense attorneys I spoke to disagree and think Durst's hot mic confession should be treated like any other piece of evidence. "It's 100 percent admissible," Dmitry Gorin, a criminal defense lawyer and UCLA professor, told me. "Miranda [rights, i.e., the right to remain silent after being arrested don't] apply here, because he wasn't in custody. But the fact that he was a voluntary subject in the documentary proves he wasn't coerced."

Jeffrey Jacobovitz, a seasoned criminal defense attorney with the firm Arnall Golden Gregory LLP in Washington DC, echoed that view. He says that intent is not important, but proving the authenticity of the tape is key: "I would think it's admissible unless they could prove somehow it's not him talking or it was somehow spliced together."

The producers of The Jinx are currently being scrutinized for the timeline of events they've dished to reporters. According to the New York Times, the audio confession was discovered "more than two years" after it was recorded. But as Gawker and others quickly pointed out, that's not really possible given the chronology of events, and Jarecki seemed to backtrack Monday, suggesting the tape was undiscovered for just a matter of months. Still, the likelihood that the audio was entirely fabricated or spliced together is pretty remote.

If anything, the confession was real. After all, in episode four of the show, Durst was warned about ad libbing with a hot mic. And as Jarecki told the New York Times before the filmmaker was advised to stop giving interviews: "[Durst] seems to like to put himself at risk. It may make him feel more vital. It may be something he's just compelled to grasp for. In this case, we felt he had a kind of compulsion to confess."

It would make sense that Durst has a problem with compulsive and irrational behavior. And in fact that might be the key to getting the so-called confession swept under the rug.

"If I was his defense lawyer, I would just say [his statement] wasn't linked to anything specific," says Jacobovitz. "And maybe that he needs a mental examination. Most people don't just blurt those kinds of things out."

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