Robert Durst would have a tough time convincing a judge that his mumbling open-mic moment in the bathroom should be inadmissible as evidence, legal experts said Monday.
In the finale of an HBO documentary, Durst — the real estate heir linked to the killings of two people close to him and the disappearance of a third — was captured muttering to himself: “What the hell did I do? Killed them all, of course.”
On Saturday, the day before the finale aired, he was arrested at a hotel in New Orleans and charged with murder. The recording could emerge as a key piece of evidence against him.
A claim under the Fourth Amendment, which prohibits unreasonable search, would probably lose because Durst had no reasonable expectation of privacy, said Adina Schwartz, an expert on criminal procedure at John Jay College in New York.
“I don’t think it’s a close call because he’s wearing the microphone. He voluntarily wore the microphone,” she told NBC News in a phone interview. “It’s not like writing in your diary and locking it away somewhere.”
The evidence in question was gathered not by law enforcement agents but by private citizens — the crew of the HBO documentary, which was called “The Jinx: The Life and Deaths of Robert Durst.”
But the law assumes that evidence gathered by citizens and taken to the police is fair game, said Erin Murphy, a law professor at New York University with expertise in criminal procedure and forensic evidence.
She likened it to finding a discarded gun on your front porch, or reporting it to the police when a friend confesses a crime.
“It strikes me as likely admissible,” she said in an email to NBC News.
Durst was questioned but never charged in the 1982 disappearance of his wife, Kathleen. He also shot and dismembered a neighbor in Texas in 2001, but he was acquitted after claiming that he had fired in self-defense.
His arrest on Saturday came on a warrant from Los Angeles for the 2000 murder of Susan Berman, the daughter of a Las Vegas mob associate and a former spokeswoman for Durst.
One of his lawyers, Chip Lewis, told The Associated Press that nothing he said in the bathroom changes his innocence. Durst agreed on Monday to travel to Los Angeles to face the charge.
Both legal experts suggested a possible angle for having the bathroom recording excluded from evidence — if Durst’s lawyers could somehow show that the tape had been edited or Durst’s voice altered, or that the recording was otherwise tampered with.
Absent that, Durst would be left to argue that he was joking — or out of his mind.
He could say that “I’m an exhibitionist guy, I’m playing a role, I don’t have much of a grip on reality, this is part of my role-playing,” Schwartz said. “I think that’s it. Otherwise I don’t see a way out.”
Lisa Bloom, an NBC News legal analyst, said on Twitter that the recording isn’t even the most damaging piece of evidence against him.
She said that was a newly revealed letter from Durst to Berman in which the handwriting on the envelope appears to match that on an anonymous note to police, on the day Berman was killed, alerting them to a “cadaver” in her home.
In both documents, the “Beverly” in Beverly Hills is misspelled as “Beverley.”
“Game over,” Bloom wrote.
