He Killed Them All Page 19

  On the witness stand, Robert described in detail the struggle over the gun that led to Black getting shot. But when the prosecution asked him about the details of the dismemberment, he said, repeatedly, “I don’t remember.”

  Asperger’s strikes again! Conveniently for the defense, the condition, they claimed, affected his memory, too. Ramsey, who must’ve spent many a night around the campfire studying the Diagnostic and Statistical Manual of Mental Disorders, claimed he fell into a “dissociative state” after the murder that “amounts to an out-of-body experience. A fog descends upon the mind. You’re able to pick up parts of things that occurred.” Where the hell did that come from?

  Strike it! Since they never called a doctor to say anything about Robert’s susceptibility to a dissociative state, I would have stricken from the testimony the lawyer’s explanation for Durst’s spotty memory. The jury should have been instructed that there was no evidence that his memory was faulty due to any specific psychiatric condition. Translation: His stream of “I don’t remember”s on cross-examination was nothing but obfuscation.

  • And the victim, Morris Black, aka violent cranky-pants.

  Did the defense offer a witness to say that Black was prone to fits of rage? No.

  Police reports about violent attacks? No.

  The defense said that the guy was a schemer and a cheap bastard. In truth, he was a charitable man who had his own program to give away free glasses to the needy! Ironically, it was Durst’s return to Galveston to retrieve a pair of discounted eyeglasses—in spite of his wealth—that led to Cody making his arrest. So, Mike, who’s the cheap bastard?

  Any decent judge would have told the jury, “You cannot consider any unproven claims about Black’s character.”

  Meanwhile, Robert got to sit in the courtroom in his oversize suits, acting innocent and sad.

  Yes, the system is always stacked against the victim. The jury gets to see the defendant every day. If it’s hot in the courtroom, they feel the heat together. If it’s cold, they shiver together. They share some emotions and experiences. They might laugh together at something funny. There’s an inevitable human connection. The defendant is always seated and submissive. The jury might get to like the guy, despite knowing what he’d done.

  When Durst testified about buying a woman’s blouse and handbag for his Dorothy Ciner disguise, the jury laughed. In any courtroom, in any extended trial, there will be moments of humor that everyone shares, moments of sadness that everyone shares. All kinds of human emotions filter through the facts. The fact that Durst wore a wig and a blouse struck the jury as funny, and they liked him for it.

  Meanwhile, Morris Black was not in the courtroom. He was not able to defend himself or amuse the jury. His suffering, his humanity, was lost on them. He became a two-dimensional character, a “cantankerous, dangerous, threatening, unpredictable old man,” as the defense defined him.

  No photos of Morris Black in the courtroom—just gruesome photos of something akin to what you would see at your local meat market. Certainly nothing to connect with. It was inevitable that the jury connected with Durst and not Black.

  One story the jury heard about Morris Black was that, back in 1997, he had a problem with his electricity. He called to complain and didn’t like the attitude of the company rep on the phone. He flew off the handle and said, “I’m going to come down there and blow the place up.” He never did it, of course.

  Now, my question is, “If the guy never did anything, why was this story allowed to come in at all?”

  Remember, the trial started in September 2003, two years after 9/11. The defense was allowed to say to the jury, “Morris Black made a terrorist threat” in their opening statement. In most states, the whole story wouldn’t be admissible. Unless the defendant knew the story, it was irrelevant. Did Robert know about Black’s phone-raging to the electric company? In Texas law, what Robert knew was relevant to his subjective beliefs. But honestly, did he read about Black’s fight with the electric company in the North Carolina news?

  The prosecution tried to turn it around. ADA Bennett reminded the jury that the defense never proved that Black yelled at kids, carried a stick, or attacked random strangers. As far as Black’s alleged fascination with guns and the claim that he and Durst were BFF? Robert was the only one who testified about that.

  The jury was allowed to take the word of a killer to characterize the victim.

  Detective Cody Cazalas testified that these two were not the best of friends, that no one had seen them together, palling around. In all the places that were referenced by Durst as their hangouts, no one could attest to their friendship.

  • During summation, the lawyers’ final argument to the jury, objections were made. Most judges would allow “objections” during summation, and then counsel would approach the bench to argue. The idea is not to pollute jurors’ minds with their version of the facts. Judges would normally remind jurors that their recollection of the testimony and not the lawyers’ was what they should rely on. If there was a question, they could have any testimony reread.

  Perhaps it was just Criss’s personal philosophy on the bench. I don’t share that philosophy. Summations are a critical point when each side gets to make final arguments without interruptions.

  • Not giving proper instructions to the jury. During her instructions, Susan Criss made two questionable calls that benefited the defense.

  One, she did not charge the jury on “consciousness of guilt.” Dismembering the body, dumping the body parts, moving away, and then jumping bail were proof that Durst knew that he was guilty of committing a crime. She repeatedly instructed the jury to consider “the relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the alleged crime”—the shooting. She never charged them to consider the relevant facts and circumstances and his condition of mind immediately after the time of the crime. It seems a rather large part of the instructions to leave out. The idiot jury did as instructed and fixated on the shooting itself, not the undeniable consciousness of guilt Durst demonstrated in abundance afterward.

  Two, she didn’t charge the jury that the lack of motive could be considered, but that motive was not required to convict. In all criminal cases, the burden of proof is on the prosecution to prove, beyond a reasonable doubt, to the unanimous satisfaction of twelve jurors, that the defendant did it. Not why he did it, but that he did it. So, of course, in their jaded playbook, the defense harped on “there was no motive.” Motive, boys, is not an element of the case. They don’t have to prove it or talk about it. Despite this, the defense kept saying that if there was no known reason for Durst to kill Black, the jury should be in doubt that he did. If they were in doubt, they couldn’t convict.

  There are many theories about Durst’s motive for killing Morris. Cody believes Morris threatened Robert’s freedom. But, as Cody said of Durst in The Jinx, “If he’s cornered, he’ll kill you.” Perhaps Black figured out who Robert really was and asked for money in exchange for keeping his identity a secret. As we know, Durst kills when he needs to. Something made him need to silence Black. Shooting him and cutting off his head would do it.

  As ADA Bennett told the jury in his final argument, motive didn’t matter! “The defense wants you to believe the lack of logical objective motive is a reason for doubt in this case,” he said. But motive is not essential to convict “in a case where the defendant has demonstrated the ability and the willingness to commit horrid, indescribable acts of butchery to another human being.”

  The jury should have been instructed, “Motive is not an element of the crime and need not be proven by the prosecution. We’re here to decide the facts. Did he commit murder or did he not?” The questions were, “Did he intend to kill?” and “Did he kill?” and “If so, was it self-defense or an accident?” Nothing more is required. The question, “What was his reason?” is irrelevant. Does anyone really know why John Wayne Gacy put on a clown suit and killed boys? He kille
d them. Who knows why people kill. The only ones who give a damn why are the shrinks.

  DA Kurt Sistrunk said in his summation, “If the sole fact that Robert Durst severed Morris Black’s head at the sixth vertebra convinces you beyond a reasonable doubt that he intentionally and knowingly murdered him, and it was no accident and it was not self-defense, that’s it. If the facts of dismemberment and flight together convince you he’s guilty of murder, that’s all it takes.”

  But the defense countered that if Robert Durst didn’t have a reason to kill Morris Black then it couldn’t not be self-defense. It was a negative upon a negative upon a negative. Brilliant!

  The prosecution didn’t have the head. They couldn’t prove it wasn’t an accident.

  So, if Black wasn’t murdered, according to trusty Bob, then the dismemberment didn’t matter.

  All those negatives were a disturbing echo and reminder of Michael Struk and the NYPD’s attitude about Kathie. They couldn’t prove she didn’t run away. Therefore, she did.

  • Did the jurors not hear Durst’s lies? There’s a Latin expression, falsus in uno, falsus in omnibus, meaning “false in one, false in all.” As a judge, I repeatedly charged jurors to consider the credibility of the witness. Did they consider:

  • How Robert said he was a disengaged loner in high school, but actually he’d been on the soccer club, the aviation club, the camera club.

  • How he told a landlord he was a botanist, a writer, a lumber worker, that he had a Ph.D.

  • How he told police he was visiting his daughter at college.

  • How he lied about his sex, his age, his name, his ability to speak.

  In his final argument, Bennett listed all the aliases he’d discovered:

  • Dorothy Ciner

  • James Klosty

  • Jim Turst

  • Robert Klosty

  • Morris Black

  • Maury Blauch

  • Emilio Vignoni

  • G. Paren

  • Diane Winn

  • Everett Ward

  • James Cordis

  The most offensive of his lies was using Kathie Durst’s Social Security number to get an American Express card.

  Then there was the blatantly ridiculous story about Durst running down the street, banging on doors after the murder, begging people to call 911, and that he tried to call it himself from a pay phone (again, with the pay phone?) but the woman using it turned her back on him.

  Are you kidding me? A frantic man, covered in blood, screaming, “Call 911!” was ignored? It never happened.

  Or how about the falsehood about the two gunshots heard by witnesses that night? If the shooting was an accident, the gun would go off only once, people. To explain the second shot, Durst came up with the story about Black shooting an eviction letter he’d been sent by the landlord. The cops found that eviction notice—without a bullet hole in it. The defense argued, “Black shot at the notice and missed.” In a small room? The guy they say was obsessed with guns and went target shooting with Robert? It was all a charade to show that there was only one gunshot, even though people heard two. How best to cover it up? By saying the previous gunshot was already there.

  Or this huge credibility issue: There was dramatic evidence of a cleanup. No fingerprints in the apartment at all, not even in Durst’s apartment. What did that tell you? Why was he cleaning his own fingerprints in his own apartment? Why? So he could say he never lived there. And why pay Morris Black’s rent for the next month? Why? So that no one would know that Morris was missing or even that he left there.

  How about the obvious lie that Robert didn’t remember anything, like cleaning up the apartment or dismembering the body? Really? “If you don’t remember the cleanup how can you get up there and testify that you didn’t clean the blood off the gun? You can’t, it’s a lie, he does remember, he remembers everything,” said ADA Bennett.

  The biggest lie of all was the defense’s claim that Durst didn’t know what he was doing when he dismembered Morris. Bennett described it in detail: “It’s clear that he was not cut up with an axe. An axe is not going to do this. [The weapon of choice had to be] a knife or some sharp instrument where he could cut the skin, cut all the muscle all the way to the bone, pull the tissue and muscle, and get to the bone, and saw it off so he could dump the body.”

  The prosecution brought in a medical examiner who said whoever dismembered Morris Black knew what he was doing. “Smooth cuts with a sharp object through skin and muscle,” testified the doctor. “The bones appeared to be sawed.” The head was severed cleanly at the sixth vertebra.

  What? Durst claimed he was wasted on Jack Daniel’s and pot and in an Asperger’s dissociative state. How could he have cut so precisely? I remember Cody saying the same thing during my Galveston tour. When he saw Black’s torso and limbs, he instantly thought it was a clean cut and not a panicked hack job.

  None of this is relevant to his guilt?

  It was all relevant to guilt.

  What about the bruises on Morris’s body? He had marks on his left side, the right side, his shoulders, the middle of the back, the inside and outside of his arm, the elbow, and the top of the shoulders from multiple blows. The medical examiner testified that the bruises were fresh and dark purple. There was also aspirated blood in the lungs, consistent with a man’s being beaten about the head and neck while he was alive, before he was shot.

  “We have evidence of multiple trauma, multiple contusion, multiple areas. He was beaten repeatedly. Those injuries are not consistent with someone falling on a flat, plane surface, these are deep-tissue bruises,” said Bennett in his argument. “Morris Black is speaking to you loud and clear. He is telling you, ‘I was beaten repeatedly before I was shot, before I was cut into pieces and dumped in the bay.’ ”

  But Durst told the courtroom that the bruising happened in the scuffle for the gun. And the judge did not charge the jury to consider his credibility, but to “place yourselves in the defendant’s position at the time and view this from his standpoint alone.”

  If Black’s body was speaking to the jury, they weren’t listening. Why? In effect, Judge Susan Criss told them not to.

  The only question was whether the gun went off on purpose or by accident. The only way to prove that was by examining the head. One juror said he had to acquit because the head was never found.

  Guess what, idiot? Who do you think got rid of the head? Why wasn’t it with the rest of the body?

  In my years as an ADA, I got convictions in murder cases on circumstantial evidence. Circumstantial evidence is no less reliable than direct evidence. Prosecutors rely on circumstantial evidence all the time, particularly in murder cases. Every day in courtrooms across the country jurors draw logical inferences from circumstantial evidence, inferences that can point indelibly toward guilt. It’s not like every thug waits for a video camera or eyewitnesses to commit his crime; it’s usually done in secret. So should we reward the guy who hides the evidence?

  If he bought a bow saw in advance, if he lied about everything, if he fled, if he chopped up the body, it was evidence. As far as I’m concerned, the prosecution met their burden. They did everything they could have done. They brought a lot of witnesses in. But between this judge, and this jury, and this defense team, the deck was stacked too high against them.

  • The defense’s manipulation of the jury. Mike Ramsey started the final argument for the defense and actually mentioned a juror by name, Joanne Gongora. He singled her out and complimented her copious note taking, making her feel important. In more than three decades in courtrooms, I have never heard counsel mention a juror by name, let alone flatter her.

  During Chip Lewis’s final argument for the defense, he told the court that he’d been keeping score of the prosecution’s word choice. “Eleven times, we heard the word ‘butchery.’ Seven times, we heard ‘cut up.’ We heard ‘run away’ repeatedly over and over again.”

  Well, I kept score, too. In their fina
l argument, defense attorneys Ramsey and Lewis mentioned Judge Criss fourteen times by name (as in, “As Judge Criss instructed you, a presumption of innocence alone is enough to acquit”), and ten more times by title (as in, “Thank you, Judge”). Saying her name over and over again was a ploy, another aspect of the show. It communicated to the jury that the defense and the judge were on the same side—and the jury was with them, too.

  “What you give us by being here is a window to the world because we all know each other,” Ramsey said, speaking directly to the jury, in his argument. “We are friends. We know the police officers. . . . The judge comes from our ranks. I hate to say that about the judge, but she does.” We’re all in this boat together, on the same level, and on the same side. “We are friends,” he said.

  It was pure pandering! They created an “us” against “them” mentality. And who was the “them”? Me.

  It was a kind of brainwashing, convincing the jury that Durst was their friend. The evidence that it worked? The jurors said after the verdict that they could relate to Robert.

  I never would have allowed it. And, because it was so blatant and improper, the judge should have corrected any misimpression the jury might have gotten.

  • The mischaracterization of yours truly. The defense attorneys acted like puppeteers, not officers of the court. They wrote a play and molded their client into a sympathetic character. They created an antagonist in an ethnic, ambitious New Yorker that simple Texan folk were sure to despise.

  Ramsey’s final argument:

  I get to finally talk about Ms. Jeanine Pirro. She’s a DA in Westchester County who took a case that is no case. There is no case pending involving Bob Durst and the disappearance of his wife Kathie. There is no indictment after over two and a half years of releasing poison into the media. No charges because there is no case there. No self-regarding district attorney is going to try a case by going to the New York Post and releasing to them the fact, “We have got a suspicion about an old case.” And unless you have seen your picture on the front page of the newspaper being accused of having something to do with the disappearance of a loved one, you don’t know what it feels like. You don’t know what it feels like, the person in the frame of mind that Bob Durst was in certainly.