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Nick Ray Harris

Audio of killers confession captured during HBO documentary reopens case

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I wonder if the defense will try to get the recordings thrown out..

They have already floated the trial balloon that when he was in the bathroom he had some expectation of privacy.

 

However it was not a secret to him (Durst) that he was wearing a wireless mic that could record any utterance he made.  So it will be an interesting court test of legal admissibility of material recorded over a wireless mic when the wearer is not on camera..

 

Hope they have enough other evidence to convict or Durst comes clean and confesses in court.  They guy is defiantly a case of spoiled rich kid (now old man)  considering himself above the law.

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CNN is having a field day with this, mainly because nobody is sure if the jury will hear the confessions. It's an interesting debate. I would think there is also some sate-by-state differences here. The "expectation of privacy" rules are set by the state. We had to learn them, for my state, on a law enforcement doc-reality show I worked on. Our camera ops had previously working in NY etc and the rules are different. 

They definitely need an update for the digital age. A lot of it is very confusing, and we called a lawyer from the field a few times. The network wanted us to act on the side of caution, rather than do something wrong and face the headaches later. 

 

Just one that I remember... Philadelphia has a tax website where you can look up a property. you can deduce from that if the property is abandoned. If it's abandoned, or "owned by the city", we were cleared to follow officers inside. If we go to the second floor and find evidence of somebody squatting, we had to shut off the cameras because that's an expectation of privacy.... even being a squatter in an abandoned house. 

In that Pennsylvania thinking, I can see how a lawyer says he "presumed" the mic was off while he was in the bathroom, and definitely didn't think somebody recorded that audio. 

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Susan, my wife, is hooked on the series so I have actually viewed several of the episodes twice. That experience inclines me to think that the argument of an "expectation of privacy" in the bathroom may be a difficult case to make. There was a previous interview where the questioning was paused for awhile but the camera and audio continued to roll as Robert Durst muttered to himself. The attorney representing Durst was present and came over to alert him that his microphone was still on and people could hear everything he said even while only talking to himself. Durst understood the admonition and immediately fell silent. That previous experience provided a clear warning that recording gear could capture anything he might say until he was completely disengaged.

 

But, it's all a little silly anyway as the audio recorded in the bathroom falls considerably short of a confession. He was talking to himself, not delivering complete declarations, so the context of the phrases was entirely unclear. When he asks, “What the hell did I do?” he may well have meant [they think I] “killed them all, of course.”

 

The whole affair is a comedy of questions not asked rather than of evasive answers. The prosecuting attorney in Galveston, facing a defendant who claimed self defense after dismembering a body, failed to ask where the still-missing head was. (Or so it appears in the documentary) Since Durst admitted dismembering the body, and since only the torso and limbs were recovered, asking Durst to identify where he left the head was a reasonable question. If the head were recovered, an autopsy might reveal whether he had been shot in the face, as Durst testified, or in the back of the head as others suspected. And, if he refused to provide that information, the prosecutor might have used that failure in his summation, advising the jury to interpret that failure as a guilty omission.

 

Andrew Jarecki and Marc Smerling, producers of The Jinx, also seemed to curiously omit obvious questions in their early interviews. A number of people have observed that Durst seemed resentful that he had been passed over in the selection of a senior executive for the family business. He resented the promotion of his brother, Douglas, who felt so threatened that he had to take out a restraining order against Robert. In the course of their interviews, Robert Durst admitted that he took scant interest in the real estate business and, somewhere around 1994, moved his office to another building. None of the questions in the interview (at least as incorporated into the finished film) seem to address the possibility that he was passed over because he wasn't taking any interest, wasn't even coming to work. Or was he shirking the office because he had already been passed over and the assignments he was being given were unsatisfying? We'll never know from this documentary. And, by the way, what business did he conduct in that Wall Street office that he rented after splitting from the Durst Corporation? No one asked.

 

The enigma of the central figure makes this an intriguing soap opera but the tendency of the documentary investigators to follow only the most obvious leads makes it essentially unsatisfying.

 

(One is reminded of Paul Bauer, the central character of All Quiet on the Western Front, observing with disdain that an earthen mound had to be fully twelve inches high before the dumb new recruits would think to take cover behind it.)

 

David

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"Expectation of privacy" might be a civil thing. My understanding is when it comes to criminal investigations only police and lawyers have constraints regarding privacy.

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Zax TRX's record backup audio internally. If it took post months to discover the files, it may be because it was on a backup that may rarely get listened to. If they were on break or something like that and the mixer wasn't rolling, the tx may have been rolling itself.

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I feel like "talking to oneself" by its nature qualifies any kind of admission as hearsay, even if it's been recorded. Durst was the only one in the room when the admission was made, and he can't be forced to incriminate himself. I think the defense has a good shot of getting the recording thrown out.

Sent from my iPad using Tapatalk

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Anything said outside of the courtroom is hearsay. But turns out one of the many exceptions to the rule is that the incriminated person's statements can always be used against him.

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A similar thing happened in the UK 5-years ago at the last General Election.

 

The then Prime Minister had neglected to return his radiomic. to the broadcaster and was still wearing it as his car drove away.  He was heard saying disparaging remarks about a potential voter he had just spoken to.

 

All this was broadcast and was extremely embarrassing - and he gave a public apology.

 

Rule of thumb - if you are wearing a radiomic. always assume it's on and you are being overheard.

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http://variety.com/2015/tv/news/robert-durst-the-jinx-andrew-jarecki-confession-video-1201453492/

 

Sheds some more light on the story. The police wouldn't have made the arrest if they didn't have a case, certainly they discussed the admissibility of the evidence with the DA before making a move as we know from every episode of Law and Order.

 

Also, if they feel they can get away with a jury that has seen the documentary, then the confession has done its justice whether admissible or not.

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Have you guys seen the documentary? By the time they did that last interview, they themselves say they believe he's guilty and discuss how to best collect evidence against him. If I was on that shoot, I'd have been rolling continuously until he left the building.

This was not a normal shoot, it was a sting.

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He also seems to say a lot of nonsense, but there's a few choice lines in there. It's definitely not something that looks good for him. *maybe* what comes out of this is somebody that was protecting him comes forward with some new information because it sways their belief. 

That's *sort*of* what happened with Ira Einhorn. Somebody that believed his "they're out to frame me" stories for decades finally changed their mind and started talking to investigators.... who found where he was living in France. I don't know anything about this case beyond this show, but I never heard him claim he was framed... but people may be looking out for him. His wife seems to be. He also seems... eccentric... enough that somebody may think he'll say something that will get him locked up. 

 

Nick: I think you're right about the "don't cut till the mic has been removed and he's outside the building" plan. In general he seems to say some choice lines out of nowhere. They probably missed a few because they were not rolling, and knew they were ask some tense questions on this interview. If nothing else, they may have been thinking "if he storms out and we have the recording, that might be the end of the doc". 

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Have you guys seen the documentary? By the time they did that last interview, they themselves say they believe he's guilty and discuss how to best collect evidence against him. If I was on that shoot, I'd have been rolling continuously until he left the building.

This was not a normal shoot, it was a sting.

 

Ya, but that "last" interview happened a year before production wrapped. The letter was found two years before (iirc). Hmmm...

 

Good 14-minute radio segment on the film from public radio's On The Media. In the segment Joe Berlinger does some usual explanation of how docs work, ethics, etc. But he's a good guy to comment on all this. He's faced similar issues in his own (rather great).

 

IS TRUE CRIME JINXED? Friday, March 20, 2015

 

The finale to HBO's "The Jinx," directed by Andrew Jarecki, was, by all accounts, shocking, satisfying, and top-notch entertainment. But as the dust settled, questions about the ethics and timeline of the series began to emerge. Bob speaks with documentary filmmaker Joe Berlinger, co-creator of the "Paradise Lost" trilogy, about modern filmmaking, the responsibility of the artist, and different interpretations of "truth."

 

http://www.onthemedia.org/story/true-crime-jinxed/

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I just watched the first episode tonight.

 

I noted that in the extensive credits, there was only a sound re-recording mixer listed.

 

Did that change the further they got in to the doc?  Judging by some of the mics and placements, they were micing the subjects themselves.

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Yeah it's a mixed bag with the mics, there's a few scenes where they show the cameras and sometimes it's just a guy with a G3 and a Roland or Zoom recorder and they follow Durst out into the street. Other times there's sankens and boom interview situations.

As you find out later they were never sure when Durst would actually show up for the interviews. So it looks like a lot of the time they just worked with what they had.

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To me it seems that for the formal interviews with all the experts, witnesses, friends, etc, as well as Mr. Durst, a professional sound mixer was used. For all the impromptu scenes, like the ones featured towards the later episodes featuring Mr. Jarecki and the other producers discussing strategy, etc, that it was done without a professional sound mixer.

 

According to IMDb, Tim Hays was the sound mixer. His IMDb looks very impressive btw.

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