Can Robert Durst beat the rap?

Lawyers discuss whether the RE scion’s Jinx ‘confession’ will </br>make the case

There it is, you’re caught.”

Thus began the muttering monologue Robert Durst recited as he washed his hands in the bathroom following taping for the HBO docu-series, “The Jinx: The Life and Deaths of Robert Durst.”

The words proved prescient, of course. A day before the finale of the six-part series aired, the 71-year-old Durst was arrested in New Orleans on charges related to the 2000 murder of his friend, Susan Berman, in Los Angeles. Berman is believed to have had knowledge about the 1982 disappearance of Durst’s first wife, Kathleen.

One key question is whether Durst’s now infamous mutterings — “What the hell did I do?” he asked himself. “Killed them all, of course.” — will be admissible as evidence in court, given that Durst appeared to be unaware his microphone was live, and that the meaning of private mumblings isn’t as straightforward as an answer to a question.

But attorney Benjamin Brafman, who in the past represented Michael Jackson, Sean “Diddy”’ Combs and real estate mogul Charles Kushner, pointed out a more technical issue that may stand in the way: the statement refers to multiple murders.

“They may have difficulty getting a judge to admit it in any one specific trial, because it implies involvement in crimes that he may never have been charged with,” Brafman said. “If you admit it in the Berman case, you would have to redact it and take out the words ‘them all.’ If you remove the words ‘them all,’ it has no meaning whatsoever.”

Despite these challenges, attorneys who discussed the case with The Real Deal agreed that the utterance will likely be admitted — or that the argument against admission will be an “uphill climb,” according to Gerald Shargel, who got mafioso John Gotti acquitted in 1990 on charges of shooting a labor union official.

If the statement is admitted, the focus will shift to the context in which it was said. Shargel believes that “The Jinx” and its creators Andrew Jarecki and Marc Smerling will play a central role in the trial.

“Jurors may be offended by the fact that the filmmakers played the role that they did… [and they] may find that the investigation was run in an underhanded way,” he said. But the potential for distaste, Shargel predicted, won’t do significant damage to the prosecution’s case.

Anthony Falangetti, who worked in the Los Angeles District Attorney’s office for 14 years and has represented troubled actress Lindsay Lohan, said that if he were the defense attorney, he would skewer the series as fictionalized and staged. That’s something Dick DeGuerin, the legendary Texas litigator who got Durst acquitted for the death of Morris Black in 2003, is already busy doing.

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Falangetti said he would also question exactly how the recording came about, and whether Jarecki and his crew made a habit of keeping the tape rolling while Durst believed his microphone was off.

“How much other footage or moments are there that were never actually aired?” he asked. “Then the question is, ‘is this something that the producers and directors did during the course of the show, more times than we know about, because they were looking for something juicy and didn’t tell him?’ That’s how you develop the foundations to exclude this evidence as ill-gotten.”

Even if the evidence is not excluded, Falangetti said arguments like these could serve to discredit the filmmakers in the jury’s eyes.

Los Angeles police detectives told the Los Angeles Times that two handwriting experts linked Durst to a letter alerting authorities to a “cadaver” at Berman’s home. The link between this letter and Durst was first brought up on “The Jinx.”

Brafman said the letter will prove far more problematic for Durst than the recording, but that his defense will claim the connection is tenuous and the evidence could easily have been fabricated.

Jarecki and Smerling said in a statement that it was “not appropriate” for them to comment, given that they will likely be witnesses in the trial.

DeGuerin could argue in court that media attention helped contribute to Durst’s arrest, the same argument he made in appearances last month. Media attention was a theme for Durst’s defense in the Black trial as well, with DeGuerin arguing back then that Jeanine Pirro, the Westchester County District Attorney at the time, drove Durst into hiding by vilifying him publicly.

But Brafman believes that this time, that argument is likely to fall flat, as Durst actively sought out that attention.

“A judge is not going to be particularly sympathetic about publicity that a defendant himself created, because he did not have to participate in this show,” Brafman said. “It was a terribly, terribly stupid thing for him to do, to agree to this interview.”

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