Los Angeles Superior Court Judge Mark Windham reviewed a report from a medical expert for the defense along with medical records before denying the motion, as he also did the previous day.
Durst's lead attorney, Dick DeGuerin, told the judge on Tuesday that his 78-year-old client is a “very ill person,'' and that Durst's ability to assist in his own defense is “severely'' impacted, and Deputy District Attorney John Lewin countered that the defense will do “anything they can'' to secure a mistrial or delay in the trial.
The judge noted then that the defendant's health is “very, very concerning,'' while noting that the case is “enormous in its impact on the community, on witnesses, on a huge number of people (who) are affected by how we proceed'' and saying that particular factor weighs against a delay.
Durst appears to be alert and able to communicate with his legal team, according to Lewin.
Another of Durst's attorneys, David Chesnoff, countered that there were at least two occasions during Tuesday's testimony in which Durst had “nodded off,'' with the judge saying that he noticed it at one point.
Jurors were sent home for the day last Thursday without hearing any testimony, with the judge saying outside the jury's presence then that Durst was being treated in a jail hospital. On Monday, DeGuerin told the judge that a doctor appointed by the defense said Durst was diagnosed with a urinary tract infection and sepsis as a complication of his bladder cancer and malnutrition.
Less than a month ago, the judge rejected an emergency motion from the defense seeking to postpone the trial indefinitely based on what Durst's lawyers said were the defendant's “life-threatening'' health issues.
In making the case then for a continuance, DeGuerin reeled off a list of Durst's serious health concerns, including severe malnourishment, a recurrence of esophageal cancer, atrial fibrillation, chronic kidney disease, coronary disease, chronic obstructive pulmonary disease and spinal disease. He said his client has gotten “much worse'' in the last year.
Durst is charged with murder for the December 2000 killing of Susan Berman, a writer with whom he had been close friends for years after the two met at UCLA. The murder charge includes the special circumstance allegation that she was killed because she was a witness to a crime.
The prosecutor told jurors last month that the evidence would show that Durst shot and killed the 55-year-old Berman “out of survival'' because he feared she would tell authorities about his involvement in the disappearance of his first wife, Kathie.
In testimony Monday, Berman's longtime friend, Susan Harmon, testified that Berman had told her that Durst and his wife Kathie had been involved in a fight and “something terrible had happened.'' Harmon said she was absolutely certain in her memory.
“She said that her friend Bobby had had a fight with his wife. She didn't know what she was going to do,'' Harmon said. “They'd had a fight, there was an accident on the stairs, and that she had to do something.''
At the time, Harmon said, she thought Berman meant she had to help the couple, rather than Robert Durst alone, but Berman never elaborated on what she planned to do.
“She intended to do something to help him,'' Harmon clarified during cross-examination.
Defense attorney David Chesnoff challenged Harmon's memory, citing conversations with police in which she asked if she could be hypnotized to better recall the facts. The lawyer also quoted Harmon telling investigators, “I've been influenced by what I've read.''
During an updated opening statement last month, Lewin called the cases of Kathie Durst and Susan Berman “interrelated,'' and told jurors they would hear evidence that Durst killed his wife and used Berman to help cover up his part in the crime, and that he subsequently had to kill another person, Morris Black, in Galveston, Texas, in 2001, because the man figured out who Durst was and was putting pressure on him.
The prosecutors painted a picture of the killing for the jurors.
“Susan Berman never saw what happened. She never knew it was going to happen. She turned around because she trusted him because he was her close friend. He was not someone to fear ... She took a few steps and he basically blew her brains out,'' Lewin said.
DeGuerin countered that his client had no motive to kill his longtime friend in her home in the Benedict Canyon area of Los Angeles and had nothing to gain from her shooting death.
“Bob Durst did not kill Susan Berman and he does not know who did,'' DeGuerin told the panel twice, reiterating his opening statement to jurors in March 2020 shortly before the trial was stalled for more than a year by the COVID-19 pandemic.
Durst -- who contended that Black was killed during a struggle over a gun before Durst dismembered his neighbor -- was acquitted in Texas of that killing.
Durst's attorney contends the disappearance of Kathie Durst and Berman's killing were “completely dissimilar'' to Black's shooting death.
“Whoever killed Susan Berman left no clues. Kathie Durst disappeared without a trace. After Morris Black's death, the police found hundreds of clues,'' the defense attorney told the jury.
He said Durst went to Berman's home in December 2000, found his close friend dead and “freaked out,'' then sent a note to Beverly Hills police about her body.
DeGuerin also told jurors that his client -- whom he said suffered from what has been known as Asperger's syndrome -- has “been considered a little bit weird'' and run away all of his life and “doesn't make what we would consider good decisions,'' reminding jurors that they will hear from the defendant during the trial.
He said Durst “had no motive and nothing to gain'' by Berman's death, noting later that there was no forensic evidence linking his client to that killing. He also disputed the prosecution's contention that Berman made a phone call posing as Kathie Durst and called Berman a “storyteller'' who had a “great imagination'' and “made things up.''
DeGuerin told the panel that a six-part HBO series “The Jinx: The Life and Deaths of Robert Durst,'' in which the defendant was recorded saying “There it is, you're caught'' and “killed them all, of course,'' was “heavily edited'' and “not a documentary.'' He said his client “wanted his story out,'' but chose the wrong people to tell that story and realized by the time the fifth episode aired that it was a “hatchet job.''
Durst has been behind bars since March 14, 2015, when he was taken into custody in a New Orleans hotel room hours before the airing of the final episode of the HBO series, which examined Kathie's disappearance and the killings of Berman and Black.
Durst has been long estranged from his real estate-rich family, which is known for ownership of a series of New York City skyscrapers -- including an investment in the World Trade Center. He split with the family when his younger brother was placed in charge of the family business, leading to a drawn-out legal battle, and ultimately reached a settlement under which the family reportedly paid him $60 million to $65 million.
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