Judge rejects Robert Durst bid for murder mistrial

INGLEWOOD >> A judge on Monday rejected the defense's emergency motion for a mistrial in Robert Durst's murder trial based on the New York real estate scion's health conditions.

Superior Court Judge Mark Windham ruled there is “no basis for a delay,” marking the third time within recent months that he has denied the defense's bid for either a mistrial or an indefinite delay because of health conditions affecting Durst, who is charged with the December 2000 killing of Susan Berman at her home in the Benedict Canyon neighborhood near Beverly Hills.

“He has endured 11 weeks of trial but remains mentally present,” the judge said of Durst shortly before denying a defense motion that alleged the 78-year-old defendant is “physically incompetent to proceed with trial, including with testifying in his own defense.”

A doctor privately retained on Durst's behalf “embellishes by describing a situation he has not even observed as if Mr. Durst every day were sitting in a pool of urine and feces,” the judge said, calling that “just false” and saying “this falsehood reveals the witness' bias.”

Dr. Keith Klein — who examined Durst twice and reviewed his medical records — testified last week that he believed that Durst should be immediately hospitalized and that his medical conditions are affecting his cognitive abilities.

“The histrionics are contradicted by the medical records which, in fact, support his treating physician's determination that Mr. Durst is fit to come to court,” the judge said. “The mistrial motion suggests a due process claim that Mr. Durst is physically unable to testify, but the evidence does not show he is unable.”

The judge said “the gravity of the crime dwarfs the significance of Mr. Durst's illness” and the law “does not support ending proceedings, suspending proceedings or releasing the defendant prior to a verdict.”

The judge noted that the court will take “measures to mitigate Mr. Durst's discomfort,” including taking breaks as needed.

At a hearing last Thursday, Durst's lead attorney, Dick DeGuerin, had urged the judge to “put a stop” to the trial, saying his client is “too sick to continue.”

“He's too sick to make the decision whether to testify,” Durst's lawyer said then. “It's cruel and unusual for Mr. Durst to be put through this in his condition. You should put a stop to this.”

Durst was subsequently taken to a clinic Friday in which doctors re-inserted a catheter, DeGuerin said, telling the judge on Monday that his client's health condition is “declining.”

Deputy District Attorney John Lewin countered last week that “what is very clear is Mr. Durst wants a mistrial any way he can get it.”

“… What this is is not a request for a mistrial. What this really is is a request for Mr. Durst to get a ‘go home, get out of jail free' card and never be tried again …,” Lewin said.

The prosecutor noted that Durst had “very serious cancer in 2005” and “he's still here.”

“He will probably outlive us all,” Lewin added.

Jurors are due back in the Inglewood courtroom on today, when the prosecution is scheduled to wrap up its case-in-chief and the defense is expected to begin presenting its portion of the case.

In his opening statement last year, DeGuerin had told jurors that they would hear testimony from his client. He reminded the panel again in June that they would hear from Durst after the trial resumed following a delay of more than a year as a result of the COVID-19 pandemic.

But defense attorneys wrote in their motion for a mistrial that “Mr. Durst is in an impossible situation in that he cannot physically testify in his own defense at trial, and if he attempted to, he risks suffering further damage to his health or death.”

Durst is charged with murder for the shooting death of Berman, a 55-yearold writer with whom he had been close friends for years after the two met at UCLA.

The murder charge includes the special circumstance allegation that she was killed because she was a witness to a crime.

The prosecutor told jurors when the trial resumed this year that the evidence would show that Durst shot and killed Berman “out of survival” because he feared she would tell authorities about his involvement in the disappearance of his first wife, Kathie.

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