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Dismemberment and Doubt
How Could the Jury Have Acquitted Robert Durst?


Wednesday, Nov. 19, 2003

On November 11, Robert Durst was acquitted on the charge of murder. He admitted having shot, killed, and dismembered his seventy-one year old neighbor, Morris Black, and having dumped Black's body parts in Galveston Bay (where the parts, except for Black's head, later surfaced). Yet the jury found that the evidence did not rule out Durst's claim of self-defense and accident, beyond a reasonable doubt.

The verdict led to widespread public disbelief and astonishment. People could see no justification for the acquittal and wondered what the jury could have been thinking.

Yet if we look closely at what bothered the public most, we can see another side to this story -- a side from which one could reasonably conclude that the prosecution failed to disprove self-defense beyond any reasonable doubt.

Public Disdain for the Verdict

To most of the public, the Durst verdict represents yet another triumph of the absurd within the criminal justice system. Other such triumphs - by public estimation - include the acquittals of the four police officers who were videotaped beating Rodney King; of O.J. Simpson; and of the police officers who shot forty-one bullets at Amadou Diallo, an innocent and unarmed West African immigrant in New York City, killing him.

That acquittals, rather than convictions, should fall into this category is to be expected. If a jury convicts a defendant of a crime without sufficient evidence to support the conviction, the trial judge (or a panel of appellate judges) can set aside that verdict. But when it comes to acquittals, no matter how baseless, the jury has the last word. For that reason, though the public may express outrage and opposition in response to a set of bizarre, high-profile acquittals, the defendants will nonetheless enjoy the benefits of having been found not guilty by a jury of their peers.

Furthermore, it is not difficult to understand why Durst's acquittal, in particular, would attract such public bemusement. How could a jury find that a man who admits not only killing, but also dismembering another man acted in self-defense? On the day after the verdict was announced, an article in the New York Times observed that even in Texas, where juries are quite receptive to self-defense claims, Durst's acquittal was surprising.

It was apparently no less surprising to the defendant, who had reportedly told a friend, the night before, that the best he could hope for was a hung jury. (A "hung jury" is a jury that cannot agree on a verdict, and that results in the judge declaring a "mistrial," after which the prosecution may retry the defendant.)

Given that even the defendant was dubious about the apparent plausibility of his account of the facts, Durst's acquittal seems an appropriate candidate for membership in the country's most ridiculous criminal verdicts. But is that truly a fair characterization of the jury's actions?

Why Would An Innocent Man Dismember the Body?

To get at the heart of the issue, let us begin by asking this question: why does virtually everyone find Durst's story of self-defense to be so incredible? A friend of mine captured well the country's reaction to the verdict. She said: "I can see shooting a guy in self-defense but cutting him up? Please!!!"

And of course, she has a point. It is fair to ask, as she did, why one would have to cut up an assailant "in self-defense." In what way, exactly, does an intact corpse pose a greater threat of death or substantial bodily harm to the defendant than a mutilated one?

That is the question that I suspect most troubles those people who mock the verdict. As far as they are concerned, Durst's dismembering of his alleged victim's corpse bespeaks either depravity in the commission of the offense, or awareness of guilt afterward.

In a criminal case, as I have explained in a prior column elaborating the concept of jury nullification, we are stuck with the jury's verdict of acquittal, regardless of the evidence. There could be thirty credible witnesses who say "I saw the defendant spontaneously shoot at the victim, responding to neither threat nor provocation," and the jury could nonetheless acquit the defendant and have its verdict remain undisturbed.

In civil cases, by contrast, a judge has the power to issue a judgment notwithstanding the verdict (that is, to reject the jury's verdict openly) when no reasonable juror could have reached that jury's conclusion, given the evidence presented in the case.

Though this option is unavailable to criminal trial judges, it is nonetheless useful, in evaluating a jury's verdict of acquittal, to use the test that would apply if we were judges addressing a civil verdict: could a reasonable juror have acquitted Durst, given the evidence? The answer is yes.

The Incriminating Evidence of Flight and Destruction of Evidence

Let me begin to make my case by acknowledging the obvious. The decision to dismember Morris Black's body and deposit the parts in Galveston Bay, is highly incriminating. Indeed, whenever a suspected criminal either flees from the police or attempts to conceal or destroy evidence, that behavior goes some distance toward proving that the suspect has something criminal to hide. Evidence of flight, concealment, and destruction of proof is therefore quite probative on the question of what a defendant himself thinks of his own actions.

As it says in Proverbs, "The wicked flee when no man pursueth; but the righteous are bold as a lion." This approach animates the law's willingness to admit such "flight" or evasion evidence against a criminal defendant. If a person has done nothing wrong, the theory goes, she has no reason to fear apprehension of herself or of any evidence bearing on the truth of what she has or has not done. And if one puts any stock in this theory, Robert Durst seems to exemplify it.

Durst not only cut up and disposed of his neighbor's body after killing him, but also subsequently rented a car using the victim's driver's license, a form of "flight" through the disguising of his identity. Durst also became an actual fugitive from justice after he was arrested for the killing, and he remained at large for six weeks (after which he was apprehended in Pennsylvania for shoplifting Band-Aids, a newspaper, and a sandwich from a supermarket).

Though the relevance of flight evidence in establishing guilt is powerful, however, it is not dispositive. Not all righteous people, in other words, are "bold as a lion."

Why would an innocent person fear police apprehension? One significant possibility is that the person in question could doubt the ability of the criminal justice system to discern accurately that he did nothing wrong, particularly if the person had previously engaged in misconduct.

The Alternative, Innocent Explanation That May Have Persuaded Durst's Jury

In Durst's case, the jury could have found the following alternative explanation for his flight especially compelling:

Before killing Morris Black, Durst, a millionaire, had lived in a one-bedroom apartment in Galveston, Texas, for which he paid $300 a month. For part of the time that he was living there, he had assumed the identity of a mute woman, using the name of a classmate with whom he had attended high school many years before.

Durst's account of this bizarre behavior was that he was afraid of being unfairly indicted by the Westchester District Attorney, who had recently re-opened an investigation into the suspicious disappearance in 1982 of Durst's wife of nine years, Kathie Durst, reportedly after a fight with her husband.

Almost twenty years after his wife's vanishing, moreover, Susan Berman, a friend of his - a journalist and an spokesperson for Durst in connection with the first missing spouse investigation - was killed, execution-style, with a 9 millimeter weapon, a type of weapon that the defendant owned.

These suspicious circumstances could, of course, contribute to the overall picture of Durst as a violent killer who dispatches the people with whom he becomes close, a picture that tends to throw doubt on the notion that Durst killed Black "accidentally."

Precisely because of how bad it looks, however, Durst could easily have concluded, after killing Black in self-defense and by accident, that no one would trust his version of what happened. Suppose he had thought of calling the police to report having shot an intruder by accident. He might reasonably have predicted that, if he did so, his past would make it impossible for anyone to take his claims of innocence seriously.

In other words, the position that Durst occupied - with both a wife, and close acquaintance, killed under suspicious circumstances - could have made him question, with good reason, the capacity of the criminal justice system to evaluate his innocence with anything but a jaundiced eye. And that question itself provides a plausible account of the lengths to which Durst went to conceal his actions.

The fact that Black himself showed signs of aggressive behavior, a point on which the defense understandably dwelled, only lends further support to the possibility that Durst really was acting in self-defense, despite his subsequent, suspicious behavior.

Having said all of this, I am still left thinking that Robert Durst murdered Morris Black. Had I been on the jury, I might well have voted for a conviction.

Notwithstanding that feeling, though, I cannot mock the jury's verdict as others have done. If I were the judge, I would not feel that the jury had reached an insupportable conclusion. Unlike verdicts of acquittal in some other cases, the jury's decision to acquit Durst can be read to reflect a sophisticated understanding of the shortcomings of "flight" evidence. And for that, the jury deserves our respect.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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