Durst is charged with killing his best friend Susan Berman, who was shot and killed in her home in 2000.
Prosecutors are set to resume their cross-examination of the only other defense witness, false memory expert Elizabeth Loftus, to begin the day, and should defense attorneys go through with their plans to call the 78-year-old Durst, his testimony will follow, and should last several days.
The bold move worked once before.
Durst’s attorney, Dick DeGuerin, also represented him in his 2003 Texas murder trial, when he put Durst on the stand. Durst was charged with killing his Galveston neighbor Morris Black while in hiding there after Berman’s killing. He said Black was accidentally killed in a struggle after entering Durst’s apartment with a gun. He admitted to dismembering and disposing of Black’s body. The jury acquitted him of murder.
Prosecutors in the California trial have also been allowed to present evidence from the Texas case, and evidence that Durst killed his wife, who disappeared in New York in 1982. Kathie Durst’s body was never found, but she has been declared legally dead. Durst has never been charged in connection with her disappearance, and has denied having anything to do with it.
He has also denied killing Berman, who prosecutors say was about to talk to police about Durst’s involvement in his wife’s disappearance. Durst’s attorneys have said that he found her body, panicked, and fled to Texas, sending a letter to police that read “CADAVER” with Berman’s address.
Durst will likely take the stand in the county jail attire he’s been wearing in court for the past several weeks, which his attorneys said was necessary because severe health problems make him unable to stand and change into a suit.
Durst has bladder cancer and a urinary tract infection. He has been in a wheelchair and has a catheter inserted. His hair is shaven short because fluid had to be drained from his brain.
He has looked far more frail than he did in his notorious interviews for the 2015 HBO documentary “The Jinx,” in which he made several seemingly damning statements that were played for jurors at the trial. Durst was arrested in New Orleans on the eve of the airing of the final episode.
His lawyers have sought delays and a mistrial over his health troubles, but Judge Mark E. Windham has rejected them all, expressing sympathy for Durst’s state but emphasizing that jail doctors have declared him fit for trial.
Windham has been determined to finally finish a trial that took years to begin and was paused for more than a year just after it began because of the coronavirus.
The Fifth Amendment to the U.S. Constitution and its protection against self-incrimination keeps criminal defendants from having to testify at their trials. They may take the stand if they choose, but it’s considered exceedingly risky to put them at the mercy of cross-examining prosecutors, and defense attorneys rarely do it.
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