Search Expert in Durst Case Alleged to Have Conflict of Interest

Written on Monday, August 3rd, 2015 by T.C. Kelly
Filed under: ExpertWitness, In the News

Millionaire Robert Durst, having been acquitted in 2003 of murdering his Galveston neighbor and arrested this year for murdering crime writer Susan Berman, now faces federal charges of illegally possessing a pistol in a New Orleans hotel room. Durst has felony convictions from 2004 for skipping bail and tampering with evidence. It is a violation of federal law for anyone with a felony record to possess a firearm or ammunition.

Durst is challenging the search of the hotel room where the pistol was found. To that end, he wants to call Don DeGabrielle as an expert witness. DeGabrielle is a former U.S. Attorney for the Western District of Texas and a former FBI agent. His qualifications notwithstanding, federal prosecutors want to bar his testimony, claiming he has a conflict of interest.

The Robert Durst Story

Durst became a “celebrity defendant” when he was placed on trial for murder after shooting Morris Black and chopping up his body. The jury decided that the shooting occurred while Durst was struggling to defend himself and found him not guilty.

Durst acknowledged that after the shooting, he drank a fifth of Jack Daniels, chopped up Black’s body, and dumped the pieces into Galveston Bay — acts that, given his intoxicated state, he says he does not remember committing. When he was charged with Black’s murder, he posted bail and fled to Texas. After his acquittal, Durst entered a guilty plea to charges of concealing evidence and bail jumping.

According to Durst’s attorney, the 2003 trial was made more complicated by the fact that “Durst is rich, wore a wig, pretended to be a mute woman, and was suspected of killing his wife in 1982.” Durst’s murder trial and his suspected involvement in two other homicides was the subject of the HBO documentary The Jinx, not to mention countless stories in the tabloids.

Although Durst was never charged with the disappearance of his wife, Los Angeles prosecutors earlier this year charged Durst with murdering Susan Berman, a close friend who was found dead in her home in 2000. The charge is largely based on information revealed in the HBO documentary, including a statement that Durst made while he was being recorded without his knowledge. Durst’s muttered remark, apparently made to himself while using the bathroom — “What the hell did I do? Killed them all, of course” — is part of the new evidence that motivated Los Angeles prosecutors to charge Durst with Berman’s murder.

The Gun Prosecution

After the new murder charges were filed, the police in Los Angeles asked the FBI for assistance in locating Durst. FBI agents found Durst in a New Orleans hotel, where he was staying under an assumed name. Durst was arrested in the lobby as he was walking toward the elevator.

A subsequent search of Durst’s hotel room uncovered the .38 pistol, resulting in a “felon in possession of firearms” charge. The search took place after Durst was unable to produce identification in the hotel lobby. FBI agents claim they “escorted” Durst to his hotel room and conducted an “inventory search” of the room’s contents. In addition to finding the gun, the agents seized $44,000 in cash, a tracking number for a package with more cash, a mask, and an ID in the name of an alias.

Durst’s attorneys have asked the court to suppress the results of the hotel room search, including the gun. Because no arrest warrant had been issued prior to Durst’s arrest, they contend that the FBI agents lacked authority to search Durst’s room. They also contend that the agents lacked probable cause for Durst’s arrest.

The Expert’s Testimony

Don DeGabrielle, now in private practice, has been hired by the defense as “an expert witness on search warrants and practices.” The District Court judge who is hearing the case agreed that DeGabrielle could testify at the suppression hearing.

Prosecutors are now asking the court to reconsider its ruling. They argue that DeGabrielle has a conflict of interest. When Durst purchased the gun that was used in Black’s shooting, he checked “no” on a federal form that asked whether he used marijuana. Because Durst testified during the murder trial that he was a habitual user of marijuana, Texas police detectives wanted Durst charged with a federal crime for making a false statement on the form.

Federal prosecutors in the New Orleans prosecution point to a news story in which DeGabrielle, who was then the U.S. Attorney in the Texas district where Durst bought the gun, told reporters for a Galveston newspaper that he would not be filing charges. Federal prosecutors contend that his decision not to prosecute, and to inform reporters of that decision, “create an appearance of bias that should disqualify DeGabrielle from now profiting as an expert.”

The attempt to disqualify DeGabrielle seems a stretch. The initial decision not to prosecute Durst was made by DeGabrielle’s predecessor. When DeGabrielle took office two years later, he chose not to disturb that decision, in part because the decision had already been communicated to Durst’s attorneys. Talking to reporters is something that U.S. Attorneys routinely do. It is difficult to identify evidence of bias in DeGabrielle’s brief contact with Durst’s case.

In any event, experts are commonly accused of bias in favor of the party for whom they testify, simply because they are being paid for their testimony. Whether they are actually biased is a question for the trier of fact (in this case, the trial judge) to consider after listening to the expert testify. Allegations of bias are rarely a reason to disqualify an expert from testifying, particularly when those allegations are as weak as they appear to be in Durst’s case.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.