by Craig Platt
I am sure you can guess what this will be about. Robert Durst. Good grief. Seems that you can't even mutter to yourself these days without incrementing yourself. Of course the fact that Durst was stupid enough (or egotistical enough) to agree to have HBO follow him around with a camera asking about all the people he killed didn't help. You may think you are different as you are not in the public eye. But, you'd be wrong. Dead wrong.
The fact is that privacy is a thing of the past. Just ask another person who openly "outed" himself and actually committed several federal crimes live on camera: Edward Snowden. But Snowden is no dummy. And contrary to what many may think (including me before I saw him in Citizen Four) he is not just an ego freak either. Watching him in action in that excellent documentary I learned a lot. I went from thinking he was largely in it for the attention to realizing that he is actually a modern day hero. A Robinhood, tattling on the powerful to save the unsuspecting masses, who are totally unaware of how much what they do and say on line can be (and is) monitored by strangers.
Which brings me to all of the potential future defendants out there. As I used to like to say to my kids when they were young, drawing upon an old classic movie line they never knew, "You know how to remain silent don't you? Just put your lips together and....." Nothing. The only way to remain silent these days is to keep your thoughts to yourself. Emails, texts, Facebook and Instagram, even blog posts like this, live FOREVER. As we criminal lawyer types like to say, "E is for evidence." So think twice, even three times, before hitting send on an email - or be prepared to answer for anything that you put out there.
The same goes for surveillance. Video is everywhere these days. In London, they say every square inch is covered by some form of closed circuit TV.
Ask Snowden. Even if he was not being taped as he arguably committed several federal offenses live on camera while filming Citizen Four, they eventually would have found him. Even with his uber encrypted computer skills it was just a matter of time. Too bad. He is a lone voice in the wilderness, trying to alert us all to government overreaching. No matter what your politics are, if you believe in privacy and freedom of expression, you have to be concerned.
You see, there is this little thing called the Fourth Amendment to the Constitution of the United States of America. It goes something like this:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Government is not supposed to be meddling in your personal affairs without a good reason that has been reviewed by a judge. As in, 'neutral and detached magistrate', not some hack pretending to scrutinize overbroad requests and then rubberstamping whatever "The Man" asks for. It is just not supposed to work that way.
But when the Government gets a helping hand from the people that they are seeking to get information from, everything turns upside down. Admissibility is not likely a problem in these cases. Which brings us back to Durst.
I watched the HBO Show, The Jinx (during which Durst supposedly confessed) with great interest. I had seen two fairly intelligent lawyers, Jeffrey Toobin and Mark O'Mara opining on CNN about this alleged "confession".
I have to say that I am disappointed in both of them. Granted, the questions on the table had to do with the admissibility of the statements. Since statements are normally deemed inadmissible only when the police forget to "Mirandize" suspects (i.e. forget to warn them about their right to remain silent, etc.) it was a bit of a no brainer that statements made to news reporters were not being obtained via police misconduct (although there could still be some privacy protections that might apply, that is not the focus here).
But, the elephant in the room wasn't admissibility. It was whether these statements are a confession at all! Did they actually listen to what Durst was saying? I kinda doubt it. That's because it sounded more like some crazy old guy mumbling and talking to himself than someone confessing to murder. If they can't see that they need to go back to law school. It would be pretty easy to see these random comments as Durst simply trying to figure out what the reporters were asking him, by repeating what he thought they were getting at.
See for yourself. Here is what he actually said:
"There it is. You're caught. You're right of course. But you can't imagine. Arrest him. I don't know what's in the house. Oh, I want this. What a disaster. He was right. I was wrong. And the burping. I'm having difficulty with the question. What the hell did I do? Killed them all, of course......."
These statements are punctuated by loud burping nosies and a toilet flushing. The tone of his voice is odd. After the last statement the room dramatically goes dark, with no recording of what he said next. For all we know, he said, "What a bunch of malarkey!" Selective editing can be deceptive and I simply don't trust TV people, based on my own experience working with some of them (e.g. Dateline).
I once represented an elderly woman accused of First Degree Murder. It was a very complicated case. The prosecutor thought it was a slam dunk because he had two very detailed taped statements of my client confessing to murder, both of which the jury heard. However, we looked at the forensics and were able to show that she was falsely confessing in order to protect her grandson, whom she mistakenly believed had committed the murder (our defense was that it was an accident, and that no one had committed murder).
In Closing Argument I played the confession tape over and over for the jury, explaining to them how her tone of voice sounded completely fake, the details too detailed and not really consistent with the forensic evidence, and explained why she would lie to save an innocent grandson she mistakenly thought was guilty of murder. It worked. Not Guilty.
The same applies here. If you really listen to what Durst said and how he said it it does not sound like a confession at all. But, unfortunately it makes for such great TV viewing that this obvious explanation gets completely lost in the mix.
This is why you need to simply not talk about pending criminal cases, especially if you might be a suspect. The media and law enforcement will immediately seize the opportunity to use whatever you say to prove you guilty... even when you aren't.
So, take my advice. Don't talk about crimes under investigation, even to yourself, if there is any possibility someone will hear or read your words. Remain silent, and ask for a lawyer the minute anyone questions you about any potential crime, big or small. You don't want to wind up like Durst.