He Killed Them All Read online

  Opening arguments started on September 22, 2003, almost two years to the day after Morris Black was shot in the head and his body chopped up into pieces and thrown into the bay in your big black plastic everyday garbage bags. I have always believed that opening statements are critical. Although they are not evidence, they set the tone, send a message, and give that jury, fresh and anxious to hear what the case is about, a road map to their conclusion.

  Trial attorneys know this, no one more so than DeGuerin and company. When they opened, the die was cast. Their case depended on the jury believing that Morris Black was a violent, terroristic man who posed a dangerous threat to poor Bobby, that I was the Wicked Witch on a hunt to destroy an innocent man for my own gain, and that poor Bobby was a harmless lamb about to be slaughtered by me.

  That afternoon, Ro buzzed that David and Anne Marie needed to see me.

  “Judge, you’re not going to believe this one,” said David, walking in. “The defense’s opening statement was all about you.”

  “What? How?” What on earth did I have to do with Morris Black?

  I got my hands on a transcript of DeGuerin’s opening.

  It started with classic blame-the-victim stuff. Morris Black as a “violent, dangerous, threatening, unpredictable old man” who “frightened children” and “carried a stick.”

  Then he characterized Robert as the guy who got the short end of the stick, the scion of a wealthy New York real-estate family “worth billions—that’s with a ‘B’—of dollars” that gave his crown to his duplicitous younger brother, and the victim of an investigation after his wife fell off the face of the earth. “The investigation went nowhere, although there was a lot of press about it,” DeGuerin said.

  Not true, I thought. An astonishing lack of press in 1982 was more like it.

  And then, the truly, mind-bendingly surreal part. And I quote:

  Twenty years later, almost twenty years later, an ambitious, politically ambitious lady, district attorney from Westchester County, announced to the public that she was reopening the disappearance of Kathie Durst and that Bob Durst was the person they were centering on. The media went into a frenzy.

  The New York tabloids carried front-page articles. These are the same kind of newspapers that report when Elvis is sighted. That report when some movie star has a baby by space aliens. That’s the kind of news they report. That’s the kind of sensationalism. But what it did to Bob Durst was it caused him to want to get away and not be Bob Durst, to hide from that horrible investigation based on no evidence whatsoever. And a lawyer hired by the Durst Organization told Bob Durst that Janine [sic] Pirro, the politically ambitious DA who you may have seen on one of the talk shows—we call them “scream shows” where everyone screams at each other and everyone takes positions. She is on Larry King Live probably tonight.

  The lawyer hired by the Durst Organization told Bob, “With no evidence whatsoever, Bob, she can have you indicted and thrown in jail with a million-dollar bond placed on you.” And it so scared him that he left New York and he came to Galveston, and he disguised himself as a woman. And he took the name Dorothy Ciner, the girl that he had gone to the high school with. And he bought a wig and signed the lease. And that’s all true. And he began living in Galveston across the hall from Morris Black, out of the frying pan and into the fire.

  Bob liked Galveston. His life began to return to normal from having paparazzi follow him around in New York and taking his picture every time you walked out of his apartment building, with banner headlines screaming that he was guilty of Kathie Durst’s disappearance.

  Let’s deconstruct this opening statement bit by bit.

  “Politically ambitious LADY”? He might as well have said “Dragon LADY.” It’s sexist bait. Pure woman hate.

  “Announced to the public that she was reopening the disappearance of Kathie Durst and that Bob Durst was the person they were centering on.” Really, Dick? I was never mentioned in any of the articles that first broke the reopening of the case, let alone had I announced that I was centering on Robert Durst. In fact, I didn’t speak to the press until after Susan Berman was killed.

  “The New York tabloids carried front-page articles.” Well, that’s not true, either.

  The kind of papers that “report when some movie star has a baby by space aliens.” There were stories about the case in the New York Times and the Daily News. Do you really believe that the New York Times is on a par with supermarket tabloids? I was not even mentioned in those articles!

  Trusty trooper Joe Becerra’s name and quotes, however, were all over them. November 11 Daily News, November 11 New York Times. And People magazine on December 4, again, with not a mention of me but repeated quotes from Becerra. I know you do your homework, Dick. So when the facts didn’t fit into your make-believe narrative, you just substituted my name for the trooper’s.

  And “scream shows”? Talk about trashing! I appeared on network news shows—48 Hours, Nightline, 60 Minutes, Today, Good Morning America—never Jerry Springer.

  “Paparazzi following him . . . banner headlines.” Dick, a teaser on the front page is not a banner headline.

  DeGuerin’s first act was a classic “the victim deserved to die” defense. After all, he had it coming. Morris Black was a vicious, violent old man, who yelled at children and assaulted a man twice his size for no reason. Hey, Dick? It’s because the larger man was threatening your client, who was mumbling and twitching. And, as is always the case in this kind of defense, the unlucky, dead, chopped-up senior citizen was six feet under with no way to respond. No corroborating witnesses would be called by the defense. Could it be there were none to call?

  I was stunned. I hounded Durst out of New York and forced him to kill a man and chop him up? But it wasn’t just the words. It was the venom, the way DeGuerin mentioned my name, emphasizing the first syllable—Py-ro—with his southern accent that made it clear I was despicable. He insinuated to those Texan jurors that I was Eye-talian. (FYI: I’m actually of Lebanese descent, although at the time I was married to an Italian.)

  I always heard, “The Devil made me do it.” Never “The DA made me do it”!

  It had to be the nuttiest, gutsiest defense in the history of crazy.

  “Oh, my God!” I said. I remember saying to David and Anne Marie, “Call the DA to let him know that he could easily rebut the claim.” But, having tried many murder cases, I told them to wait until the end of the day when prosecutors had gotten out of court and regrouped a bit. I then suggested that John O’Donnell call Cody, since he was the lead investigator, to tell him about the misrepresentations that were being made.

  I knew it was not my place to get involved in that trial, but did DA Kurt Sistrunk and ADA Joel Bennett know that Durst was not hounded out of New York, that, in fact, he flew back and forth to New York several times during this period when he wanted to “disappear”? And the paparazzi chasing him? Where were those photos?

  Clem Patti theorized that the Texas prosecutors probably assumed that it was nothing more than rhetoric, that it was collateral, meaning not something that they’d need to rebut because it had no bearing on whether Durst killed Black and would make no difference to the jury. Of course he was right.

  But, in my gut, I knew it went to the heart of their defense. Because I chased him out of New York, no one would believe he killed in self-defense, and that he had no choice but to chop up the body.

  DeGuerin was actually creating a pattern of behavior for Durst. He fled to Texas because he was hounded by me. He had to then flee Texas, not because he wanted to get away with murder, but because this is his pattern.

  I was unaccustomed to taking a punch without hitting back, or at least defending myself. I called Sistrunk later that night, and said, “I understand they made me an issue down there. What the defense is saying can be contradicted by newspapers and airline tickets. I don’t want to be a distraction, but, with your permission, I’d like to send my investigators to present the facts.”
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  John O’Donnell was champing at the bit to go. He wanted to set the record straight also.

  DA Sistrunk declined the offer.

  I understood. These guys were in the middle of a trial. Plus, you don’t second-guess another DA. They were in the courtroom every day. I wasn’t. But, given the calls seeking responses from my office based on the goings-on in that Texas courtroom, it sure didn’t feel that way.

  Stepping back, most prosecutors would see the case as a “slam dunk”—open and shut. Why wouldn’t they? Cody had more than just done his homework. He lived this case. He knew everything about the case, meticulously cataloguing every piece of evidence and recording every interview.

  But, then again, Durst admitted to butchering the body, dumping the parts, and fleeing using Morris Black’s ID. So maybe all the drama and Durst’s defense carping about Dragon Lady Jeanine was irrelevant. It was irrelevant, to the prosecutors. But they had brains.

  But to the jurors? They ate it up.

  An ambitious, telegenic, ethnic New York woman with a powerful job? That turned out to be more terrifying to them than a serial murderer who dismembered his neighbor with an axe and bow saw and then casually went for dinner and a haircut.

  I couldn’t believe what was happening down there. I hit the ceiling every time they came in and gave me an update. There was talk of storing a scaffold in my office closet so they could peel me off the ceiling every time the press called with another shot.

  The trial was entertainment. The defense’s smoke-and-mirrors approach in that Texas courtroom had nothing to do with truth and justice. They pumped the smoke so thick, the jurors couldn’t see through it.

  Every aspect of the defense was staged.

  Defense production expenses included costumes—DeGuerin’s good old boy suit, boots; Durst’s extra baggy suit that made him look meek.

  The defense’s staging of the Durst/Black struggle for the gun—with the lawyers as understudies in court—was as dark, rehearsed, and choreographed as Shakespearean theater. So perfect. If you’ve ever been in an actual fight, an actual life-or-death struggle, with your adrenaline flowing, you couldn’t possibly remember every twist and turn. But then again, since the jurors and experts didn’t have Morris Black’s head to examine, thanks to Robert Durst, who could deny their version?

  I found it fascinating and infuriating that one of the jurors would later describe the defense as “[they] told us their story and stuck to it.”

  “Their story.” Damn right about that.

  The puppet makers put on the best theater Galveston had ever seen.

  Meanwhile, I saw much evidence that Judge Criss was completely out of her depth. According to ADA Joel Bennett, whom I spoke to recently, “A lot of our strategy was knowing the judge as well as we knew the law. We didn’t make objections that we knew were going to be overruled by the judge. Why object and call attention to disputed issues?”

  When the prosecution finished their case, the defense was asked if they intended to present their first witness. The name Robert Durst was spoken and a deafening silence befell the courtroom. For the record, most defendants do not take the stand, especially as the first witness. I know a bit about criminal law and procedure, having tried murder, rape, and violent felony cases as an assistant DA for more than a decade and then sitting on felony cases as a county judge for years in Westchester.

  Remember the scaffolding in my closet? They had to take it out—two, three times a week—to peel me off the ceiling.

  The scaffold takedowns occurred when:

  • Durst’s testimony began with his childhood. “Is your mother alive?” “Is your father alive?” “How old were you when your mother died?” “Were you present when she died?” “How did she die?”

  WHAT? Is this a courtroom or Robert Durst on This Is Your Life?

  Most judges are prepared for the “life story” line of questioning because all defendants want a sad story put before the jury. But it usually runs for a minute or two and then it’s on to the issues at hand. The defendant’s life story is not relevant, even if he is rich.

  Questions like these are irrelevant, immaterial, and superfluous. Okay, so he was a sixty-year-old orphan. His mother died fifty-three years earlier! What does that have to do with the killing and dismemberment on September 28, 2001?

  Sympathy for the butcher?

  Look, everybody’s got a story. The issue before that jury was not whether Durst’s mom jumped off a roof. The issue was, “What happened on the day that Morris Black died?” Can you imagine an inner-city defendant being allowed to say “My mom was a crack addict fifty-three years ago, so feel sorry for me because I chopped up my friend in the hood”?

  But it didn’t end there, Durst had a domineering father. “Even in the seventies, was the Durst family business, the Durst Organization, one of the most powerful entities in New York?” asked DeGuerin.

  Who gives a damn? Should the scales of justice tip based on the number of coins in your pocket?

  Poor Robert testified he wasn’t interested in his family’s business, but he was the obedient son who sold his health food store in Vermont to return to New York to go along with his father’s wishes. That the judge would allow this testimony about Mommy and Daddy, which had nothing to do with Morris Black, is mind-boggling.

  I thought to myself, Maybe the defendant will argue some psychological trauma that affected his actions in the case. Nowhere did DeGuerin make a connection between the violent death of the defendant’s mother and his behavior on the day that he killed Morris Black. More smoke and mirrors.

  But then I thought, Well, maybe he wants to argue that he runs away from bad situations to explain his fleeing. But surely Susan Criss would never allow it. She would have to instruct the jury that flight after a crime indicated “consciousness of guilt”—a charge that is given to jurors across this country all the time.

  The trip down Durst’s silver-spooned memory lane didn’t stop there, either. Durst’s family photos came into evidence. Robert was such a sensitive, sweet, caring human being, as DeGuerin said, he carried around photos of when he was seven and eight years old in a bathing suit, pictures of his first girlfriend, his not-yet-dead wife and their not-yet-dead dog on their wedding day (yes, the dog was in the wedding picture). DeGuerin said those personal photos identified what mattered to Robert. Poor Robert, he had been dealt such a bad hand that his only solace was in the pictures he carried around.

  But put the photos in evidence? Really? Evidence of what? A wedding? You bozos. He killed them all! They weren’t “what mattered” to Robert. The dead wife and dead dog pictures were trophies, memorabilia. Like a pedophile, Robert carried them around to remember his conquests.

  Can you imagine a gangbanger from the projects charged with murdering and dismembering a neighbor being allowed to bring in family pictures of his youth and his family members, one of whom he probably killed?

  A trial is about evidence. The judge determines the admissibility of evidence. If the evidence is relevant and material, it comes in. If it’s not, it doesn’t. I would never allow any defendant on trial in my courtroom to bring in a photo of his wedding day thirty years earlier. Not even if he murdered his wife.

  When I was a judge, if I saw things that needed to be addressed, I wouldn’t wait for the prosecution or the defense to object. I would say, “You’re not doing that! That’s irrelevant. You cannot do that. Come up to the bench and explain your proffer and I might allow it, subject to connection.” If I had a slow DA or defense attorney, either way, it was my job to see justice done. It’s about fairness for both sides. Honestly, that was why I disliked being a judge. I preferred to take a side and fight for it. But, as a judge, you’re the ringleader of the circus. You have to control the clowns, even if the other side doesn’t object.

  • And Asperger’s? In the defense’s opening statement, co-counsel Mike Ramsey picked up where DeGuerin left off and talked about Durst’s “bizarre, strange behavior,” such
as renting a three-hundred-dollar dump in Galveston instead of escaping Py-ro by flying to Europe or China. “We will prove beyond a shadow of a doubt that he suffers from Asperger’s,” he said. “It means that he is susceptible to a kind of panic state, that trauma in and of itself brings on a panic state in that kind of personality. It’s the kind of personality that runs from trouble rather than trying to solve problems.”

  Hey, Mike. I’d say most people run from trouble. Does that mean we all have Asperger’s? Criminals in particular run from their crimes.

  “Panic state”? The guy killed somebody, chopped him up with experienced precision, and then calmly went out to get dinner and a haircut. That’s some panic. My guess, Mike? The only guy panicked was the old man who was beaten up before he was shot and dismembered.

  This mysterious condition, Asperger’s, turns you into Jack the Ripper? What law school did you go to?

  Maybe I’m wrong, but how about you prove it? Bring in a psychiatrist. Bring in a therapist. Hell, bring in Dorothy Ciner. Bring in anyone. You can’t throw out psychiatric theories without backing them up. Joel Bennett told me recently, “Actually, all three of Durst’s team of mental health doctors the jury was promised to hear from were in the courtroom to hear all of his testimony. After hearing it, none took the stand.” That says it all.

  As a judge, I would not have let that giant leap slip by. When testimony ended, I would have called up both sides and, directing my remarks to the defense, I would say, “You said in your opening statement that your client had Asperger’s, and, as a result of that condition, he was panicked and detached. You didn’t call a doctor to confirm that Durst has Asperger’s. You didn’t have a doctor explain the condition.” Then I’d look at the DA and say, “Counselor, would you like to make a motion to strike that from the jury’s consideration?”

  Joel Bennett recalls that Criss stated the opening was not evidence. There was nothing to strike.

  Wrong! If defense attorneys can say whatever they want and thread unsupported claims throughout the trial, then juries can acquit based on openings and not facts.