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CA v Robert Durst Murder Trial Day 22 - Douglas Durst - Defendant's Brother Continues — Transcript

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0:00our jurors and alternates have returned
0:02and
0:03for the record all of our jurors and
0:05alternates have
0:06selected a chosen return to the jury box
0:12very grateful to that um
0:17do get used to it
0:20i'm grateful to have you there um mr
0:22robert durst is uh
0:23is a president with his lawyers mr de
0:26guerin and mr chesnov
0:27mr ray and
0:31mr lewis and back to you i got you mr
0:34ray
0:35then we have mr mr lewin bailey and
0:39miata henderson and milius
0:42our witness mr douglaster says resume
0:45the witness stand i'll remind you that
0:47you
0:47are under oath and you may continue your
0:50examination of the witness mr lewin
0:52thank you your honor mr durst uh right
0:55before the break i told you i wanted to
0:57talk about
0:58the week after kathy durst alleged
1:00disappearance and i'm going to start
1:02with
1:02monday february 1st 1982.
1:06do you remember seeing your brother bob
1:08on that monday
1:10no i do not
1:13did bob ever tell you where he was on
1:16monday february 1st 1982
1:18no he did not do you remember
1:22previously telling uh investigators in
1:26this case
1:27during your 2015 interview on april 15
1:342015 that
1:37bob had told you that he was out in the
1:39city on monday
1:41do you recall saying that
1:45i believe he told me he was out of the
1:48city
1:49okay so so my question is so if you can
1:52forgetting about what you have said
1:54or not said you sit here do you have a
1:56memory
1:57of bob telling you anything about where
2:00he was that day
2:02i remember him telling me he was not in
2:04the city
2:08i want to ask you about tuesday february
2:112nd
2:12do you recall if bob was at the office
2:15that day
2:16no he was not and you have a specific
2:18memory
2:20as to why he was not in other words why
2:22you remember he was not at the office
2:25uh we were supposed to have a closing
2:27that a
2:30property we were buying and it was
2:31postponed
2:33and i'm having maybe the jury can can
2:35hear i'm having a little bit of trouble
2:38uh hearing you all right that's better
2:41that's better um when you say a closing
2:44can you explain what you mean by that
2:47we were purchasing a property
2:50in manhattan and was it standard
2:53for bob to have attended that closing
3:00yes and is it your testimony that you
3:03then have a specific memory
3:05that he did not make that closing that
3:07day which was unusual
3:09uh and now recollecting that it was not
3:12actually a closing we needed bob's
3:14signature on a document and he was
3:16unavailable to sign the document
3:18the closing was either later in the week
3:22or the following week
3:23and in terms of the idea
3:27that bob durst whether it was the day of
3:30the closing or that you needed him to
3:32sign something do you have a clear
3:33memory
3:34that you needed bob for something and he
3:36wasn't there
3:37that is correct i want to talk about
3:40wednesday february 3rd
3:41do you remember if you saw bob that day
3:44i remember i did not see him that day
3:46and do you remember in the 1980s did the
3:48durst family
3:50typically have informal board meetings
3:52on wednesdays
3:54for individuals who were working at the
3:56durst organization who were also board
3:58members
4:00yes so a family meeting would be a
4:02better way of expressing it
4:04and when you say family meeting can you
4:05explain what you mean by that
4:07members of the family who are working in
4:09the business to sit down and discuss
4:12issues and you remember
4:15to the best of your memory was there a
4:16board meeting on wednesday february 3rd
4:20i don't have any actual recollection of
4:24it
4:25were the meetings traditionally every
4:27wednesday they wear every wednesday yes
4:30and do you remember uh bob
4:33specifically seeing him at such a
4:35meeting on february 3rd
4:37i know he wasn't in the office so i
4:40could not have seen him at
4:41the meeting do you remember anything
4:44about thursday february 4th 1982
4:48uh i remember that was the day that
4:52it became public that kathy was missing
4:56and what about friday february 5th 1982
4:58do you remember anything about that day
5:01you know the papers um i want to ask you
5:05are you aware that your brother has
5:08previously
5:08said that on tuesday february 2nd 1982
5:12he was in connecticut quote scouting
5:15unquote
5:16for proper dubai for the durst
5:18organization have you ever heard that
5:19before
5:20i have heard it yes and can you tell me
5:22would such scouting for property would
5:24that have been a part of your brother's
5:26uh portfolio or job responsibilities
5:30and can you explain um
5:33did your family to the durst
5:35organization
5:36did they scout for property in
5:38connecticut at that time
5:40no we were we were actively building a
5:43building and we were not
5:45looking to acquire additional property
5:47and let me ask you something
5:48if you were looking for additional
5:50property would that have been
5:52your brother bob's job to find them no
5:55and did your father at the time have a
5:58saying
5:59about um real estate that he was
6:02interested in purchasing
6:05my father was frequently quoted as
6:07saying he wouldn't buy anything he could
6:09not walk to
6:11and i always said well i'm glad he lived
6:12in midtown
6:15and connecticut was not walking distance
6:17is that correct
6:20back in 1982
6:24do you remember uh was the main number
6:26for van dorn realty
6:28212 586
6:32uh 3131 thank you
6:36yes that was the main number thank you
6:38mr degaran
6:40uh i want to show you what has been
6:42previously marked as people's
6:4472. i'm gonna put up uh this is page 25.
6:50and in a moment you're going to have
6:52that up there but
6:53for a moment when you and bob durst were
6:55working for vandora realty in the early
6:5780s
6:58are you aware of whether your brother
7:00bob would call the office collect
7:02yes he would always call collect and how
7:05do you know that
7:07i just know it i don't know i know that
7:10he was he would always call the office
7:12collect and was your brother known
7:14at the durst organization for no matter
7:17where he was
7:18and how cheap to call or how close that
7:20if he was going to call the durst
7:21organization it would be collect
7:23yes and at the time did you yourself
7:28place occasional collect calls to
7:29bandora realty uh
7:31i would occasionally have to call
7:32collect because i had a
7:35calling card a corporate calling card
7:38but
7:38bob would like to cancel it for me
7:42was anybody else at vandoorne realty
7:45allowed to call the office collect such
7:47that their calls would be accepted
7:51i i would have to believe that my father
7:54and uncles could
7:55i never really did and so it would be
7:58durst family members only is that
7:59correct
8:00correct and at the time in terms of van
8:03dorn realty
8:05were your father and your uncles working
8:08for vandoorne
8:10uh no they were partners in the business
8:14in terms of actual people who were
8:16working for vandoorne who were family
8:18members that was you and your brother is
8:20that correct
8:21that's correct i want to ask you
8:24um if there was a collect call
8:27in vandoorne phone records from that
8:30time period
8:31do you have an opinion as to who
8:35could have made that call only vladimir
8:37objection speculation
8:39ron i believe the foundation's been met
8:42just one moment
8:49who collectively who was entitled to
8:52make such calls
8:53yes uh with that understanding overall
8:56not identifying a particular caller but
8:58again
8:59yes yes
9:03i'm sorry question again sure so
9:06at that time if there was a collect call
9:11in that uh in phone records from that
9:14time period
9:16is it safe to say that such a call if it
9:19were accepted
9:20could only have been made by you or your
9:23brother that is correct yes
9:25any question in your mind no
9:28clarification
9:29there's some record on the screen that i
9:31don't think has been identified as
9:33it's going to limit i think he's about
9:34to yeah i'm getting there right now
9:37um i want you to look at
9:41the uh records that are on the screen
9:45and do you see at the top the five eight
9:49can you you should be able to see it on
9:50your is it not on there right
9:52hold on uh
9:59yes i guess i have a control here for
10:02that
10:07at the top in the top left corner
10:09there's a number
10:11five eight six i see can that some folks
10:13like to look at it on that screen also
10:22oh good we can see movies
10:25i'm afraid we will
10:36and if it's easier for you mr durst it's
10:39also
10:40straight ahead i don't know what's
10:41easier for you to look at do you see the
10:43number on the
10:44top left hand corner 586-3131
10:49yes and that is the van doren realty
10:53number at that time is that right that
10:54is correct
10:56i want to ask you there is a call on the
11:00left
11:01side under 202 february 2nd
11:04at 9 17 a.m from mount kisco new york
11:07it's a collect call
11:09do you know anything about that call
11:12him from mount kisco
11:15that was a call i made on my way driving
11:18to the city
11:20i had to have my uh tires repaired
11:24and when you were originally asked about
11:27this call
11:28did you remember no i did not remember
11:31and what was it that triggered your
11:32memory at a later point in time about
11:35this call
11:36i completely forgotten the incident of
11:42having to get the tires fixed and it
11:44just came back to me
11:45and so specifically on february 2nd
11:50is that when you had the incident with
11:52your vehicle where you had to take it in
11:54yes so does that mean then that call at
11:579 17 that was made by you
12:01yes i want to ask you about the call
12:05at 10 19 a.m from what is abbreviated is
12:09beach haven new jersey 11 56
12:12a.m beach haven new jersey and 12 23
12:16beach haven new jersey and then finally
12:19at 4 55 pm
12:20barnegat new jersey are those calls that
12:24you yourself made
12:26no i did not make those calls to the
12:28best of your knowledge have you ever
12:29been to
12:30any of those places no i have not been
12:38based on what you have testified to
12:41previously
12:43if you did not make those calls given
12:46the habit and customs within vandoorne
12:48realty at the time
12:50do you have an opinion as to who would
12:51have had to have made those calls
12:53for them to be accepted speculation
12:55overruled
12:56it will be made by bob
13:02i want to ask you if you are aware
13:06that you and you can take those down now
13:08mister
13:10balian for the record can we have that
13:13document identified we did it we did
13:17page 20 page i didn't see it on the
13:20document
13:2272 yeah come on right here 72. that's
13:25part of the stipulation
13:26and i'm just let's put this display at
13:28the council before you project
13:35[Music]
13:36are you aware mr durst
13:44are you aware mr durst that your brother
13:46bob has
13:47stated previously that he called the
13:50durst organization
13:52from connecticut on that tuesday
13:57i have been told that yes and you had a
13:59chance to take a look
14:01at the the records that we just showed
14:03you would you agree there is no collect
14:06call
14:06from connecticut to vandoor vandoorne
14:09realty
14:11and let me ask you something if your
14:14brother had called the office from
14:16connecticut
14:17given his habit and custom if i were to
14:19ask you on a scale of one to a hundred
14:20with one being you know
14:22i have no idea how to place that call
14:24and a hundred being he would have
14:26absolutely placed that call collect what
14:27would your answer be
14:29the answer would be a hundred
14:35[Music]
14:36i want to talk about now after kathy
14:39disappeared
14:40do you remember based on your
14:42observations
14:44um what kind of efforts bob
14:48appeared to be making to try to find his
14:50allegedly missing wife
14:53the only effort i was aware of was the
14:55[Music]
14:56offer a reward for her if somebody
15:00found her return did he ever come to you
15:03and request any help finding her no he
15:05did not
15:06at the time is it fair to say that your
15:08family had significant resources and
15:10connections
15:12yes are you aware of mr durst ever
15:15coming
15:16to you or any member of your family
15:17saying you know what we need to use
15:20every resource we have to try to find
15:22her i have no awareness of that
15:28do you know who nick oscarpeda was
15:32yes i know who he was and is it fair to
15:34say he was a criminal defense attorney
15:36who was representing bob
15:38in 1982. yes
15:41did you have any part in hiring no it
15:44did not
15:45do you have any personal knowledge of
15:47any discussions between your brother
15:49and mr supetta i do not are you aware
15:52that your brother has repeatedly stated
15:55that you
15:56and your father were present for
15:58numerous meetings
15:59involving your brother bob and his
16:02attorney mr scapetta relating to kathy's
16:04disappearance are you aware of those
16:05allegations
16:06i am aware of did you ever attend any
16:09such meeting
16:10no i did not are you aware of your
16:11father ever having attended anything
16:14you're not aware of my father attending
16:15any of those meetings
16:17at the time in 1982
16:20is it fair to say that you and your
16:23father
16:24had experience dealing with attorneys
16:27oh yes is it fair to say that you and
16:30your father
16:31understood the concept of
16:33attorney-client privilege
16:34very well knowing your father
16:38do you believe that he would have
16:39jeopardized attorney-client privilege by
16:42attending a meeting with bob and his
16:44attorney
16:45excuse me that really is speculation
16:48so uh i'm going to sustain the objection
16:50but just say objections
16:52speculation i'll sustain
16:56was your dad an experienced businessman
16:59very experienced was your dad an
17:01experienced individual dealing with
17:04attorneys in litigation very experienced
17:06in dealing with litigation and
17:08attorneys and in terms of your family's
17:11dealings did you have attorneys
17:13at that time who were literally on
17:16beck and call to the jurist organization
17:18yes
17:19and was it frequent for you and your
17:21father pursuant to your
17:23dealings in business to rely on
17:26conversations with attorneys
17:28yes and to the best of your knowledge
17:31did
17:32you yourself understand the issue of
17:35attorney-client privilege
17:36yes i understand it very well did you
17:39understand at that time
17:40that if an attorney was discussing
17:43something with a client
17:44in front of a third party that that
17:46would very likely waive attorney-client
17:48privilege
17:49yes i did understand it and to the best
17:51of your knowledge did your father have
17:52even more experience than you did
17:54he did and based on your knowledge and
17:57understanding of your father
17:58is that something that he understood as
18:00well
18:01based on my knowledge of him yes that is
18:03something he understood very well
18:05knowing your father and given that
18:07background
18:09do you believe that he would have
18:10jeopardized such a privilege
18:13by attending such a meeting with bob
18:15durst and his attorney
18:16same question objection
18:21your honor can i just ask the grounds
18:22because i'm not sure speculation
18:29may we approach briefly your honor yes
18:32mr lewin let's approach the discussion
18:34thank you
18:44[Music]
18:46thank you honor all right mr lou next
18:48question mr durst
18:51in the days after kathy's disappearance
18:54were you contacted by either
18:57her her friends or family members
19:00asking for access to bob and kathy's
19:03south salem cottage
19:05yes i received a call from uh let me
19:08just let me just stop so the question is
19:09just this is a yes or no question yes i
19:11did
19:12and let me ask you in response to that
19:16did you agree to let these individuals
19:19in
19:20to bob and kathy's house yes i did and
19:24how did you end up letting them into the
19:26house
19:28uh i broke into the house
19:31and how did you break into the house i
19:34forced a door to the house open
19:38and again because of prior rulings which
19:40make sure you're listening to me very
19:41carefully so i'm going to lead you on
19:43this
19:43um did you end up telling them that in
19:46essence
19:47you would let them into the house you
19:49would give them a certain amount of time
19:50but then you were going to have to
19:52report
19:53that there was a burglary yes that is
19:55correct
19:56and in fact you would agree there was no
19:58burglary because
20:00in terms because you were letting them
20:01in
20:03yes after i broke into the house but yes
20:06and
20:06at the time that you did this what was
20:09your motivation for
20:11assisting in this way uh
20:14they were quite desperate and i wanted
20:17to
20:18either show them that nothing had
20:20happened or there was evidence that
20:22something did happen
20:24and did you actually end up
20:27um falsely reporting to the new york
20:29state police that a burglary had
20:31occurred
20:32yes i did and subsequent to that
20:37did the police come out did they
20:38actually take report from you yes they
20:40did
20:41is it fair to say that at the time you
20:42were not truthful with the police
20:44regarding
20:46what had occurred with respect to this
20:47alleged burglary that is correct
20:50were you concerned at the time that
20:54your brother bob would find out that you
20:56were cooperating with
20:58uh kathy's friends and family
21:02and the police regarding the
21:04investigation yes
21:06i'm allowing it yes i was concerned and
21:10why were you concerned uh because my
21:13brother when he gets angry he gets
21:15extremely angry
21:19i want to ask you at at some point did
21:22you
21:22and your brother's issues your personal
21:25issues did it
21:26spill into your dealings at work
21:30yes it became very contentious and can
21:32you describe what happened
21:36uh we had many arguments
21:39and uh
21:49can you describe what happened overly
21:51broad
21:52um me too so uh why don't you you might
21:55need to lead a little bit
21:57sure you may leave the witness did you
21:59end up putting a camera in your office
22:02yes i did what was the purpose of that
22:04because
22:05i had evidence that bob was entering my
22:09office going through my papers
22:11and somebody had urinated into my waste
22:15paper basket
22:16and were you able to confirm some of
22:19these suspicions
22:20with the camera i was able to confirm
22:22that bob was entering my office
22:24and at that time were you physically
22:27afraid of your brother
22:29uh my brother kept a large
22:32object with his hand
22:35this disappears wait wait hold on a
22:37second hold on so objection
22:39are relevant what's your other objection
22:42it's
22:42it called for a yes or no and but it's
22:45not relevant
22:46all right so were you uh i'll overrule
22:49the
22:49relevance listen to the question it does
22:52call for yes or no
22:53so i answer only the question that's
22:56improper characteristic
22:57um overruled so um it's not admitted for
23:01that
23:01purpose uh it i don't know what the
23:04answer is
23:04i'll limit it were you afraid of your
23:06brother yes i was
23:08why were you afraid of your brother my
23:10brother kept a very large
23:12wrench with a sharp point on his desk
23:16which could be considered a weapon and
23:20at that time in response you yourself
23:23secure a weapon of uh as well
23:26i did secured a something i thought
23:29would defend me against
23:31any attack but not a weapon so i'm a
23:35ladies and gentlemen i'm receiving this
23:37for a limited purpose
23:38this is not to judge mr robert durst
23:40character this is
23:42uh admitted for the credibility of this
23:44witness to understand
23:45uh his his better understand his
23:47testimony and judge's credibility
23:49so you may continue and i want to be
23:51clear your brother at no point
23:53threatened you with with a weapon or
23:55tried to attack no point that you
23:56threatened me with a weapon
24:05um
24:09you indicated that your brother ended up
24:12leaving the durst organization after
24:16you were named the uh
24:19the trustee for lack of a better term
24:21i've yet again forgotten
24:23what preeminent trustee thanks again
24:25mister
24:26chestnut uh after you were named the
24:28premier trustee did he leave immediately
24:30no he did not and do you remember
24:34specifically how you found out that he
24:36left
24:40we would we would have lunch
24:44at a restaurant and
24:47we're all headed to the restaurant and
24:48he never showed up the family
24:51the family so this was not a social
24:53event with you and
24:54and bob this was the family family yes
24:57so one day he just doesn't show up yes
25:00and did you find out
25:01that your brother had been making
25:04preparations to leave for a while
25:06yes i did find that out and what did you
25:08find out
25:10i was contacted by the
25:13post office that he months earlier had
25:17submitted a form to have his mail sent
25:20to a
25:21business address which included our
25:24business mail and uh i also found out
25:29that he had
25:30signed a lease for an office for his own
25:33office downtown
25:35and was there anybody's investor
25:37knowledge within the durst organization
25:38who was aware in advance that he was
25:40leaving
25:41no there was no one who was aware to
25:43your knowledge were there any family
25:45members that were aware in advance that
25:46he was leaving
25:47to my knowledge there were no family
25:49members that were aware
25:52i want to ask you when i say the name
25:53susan berman is that a name that you
25:55know i know
25:56i know the name susan berman did you
25:58ever meet her
25:59i met her once or twice were you aware
26:03of the
26:04extent or closeness of bob's
26:06relationship with her
26:08i was yes and what were you aware of
26:11that bob was
26:12frequently with her spoke about her
26:14frequently
26:16do you remember at the time that kathy
26:19disappeared
26:21that susan stepped up and was making
26:24statements to the press
26:26yes i was aware of that was that
26:28something
26:29to your knowledge that was coordinated
26:31through the durst organization or was
26:33that something independent was she and
26:34bob
26:35that was independent had nothing to do
26:36with the terrorist organization
26:38how did you find out years later that
26:41susan had been murdered
26:45i heard it over the news
26:48or read in the paper i don't remember
26:50which one but
26:52[Music]
26:54have you ever spoken to your brother bob
26:56about any issues relating to her death
26:58no i have not sometime in 1999 or 2000
27:04did you find out that there was a
27:05reinvestigation into kathy's death
27:08yes i did do you remember to the best
27:10remembering how you found out
27:13uh i believe i was told by
27:18the retired pr agent who still consulted
27:22with us
27:22that he had been told by his sources at
27:25the paper that there was a
27:27reinvestigation
27:28and was that the famous mortimer morty
27:31mats
27:32the very famous moody match yes who is
27:35still living is that correct
27:36that is correct mr matz is near 100
27:38right now he is
27:40and did he previously have a position
27:42where
27:43um he did public relations for the durst
27:46organization
27:47he still is employed by the durst
27:49organization
27:53do you remember if you ever spoke to bob
27:57about the reinvestigation
28:00uh i believe there was a meeting
28:04with my sister and i that was discussed
28:06yes do you remember what bob's response
28:08was
28:09he got very upset did he in any way
28:12respond uh with such feelings as oh my
28:16gosh
28:16now maybe they can find out what
28:18happened to my missing wife no
28:22were you and your brother still in
28:23contact when morris black was killed in
28:252001
28:28uh yeah
28:32i i had seen him as i said uh
28:35a week or two before not the wedding
28:39at the wedding but you had no contact
28:41you didn't speak at the moment
28:43did you ever speak with your brother
28:45about the case no
28:47did you attend any of the trial no
28:50now at some point after morris black's
28:53death
28:54and after the trial did you and your
28:56brother become involved
28:58in your the nurse organization your
28:59family in a contested
29:01legal dispute over the assets of the
29:04trust
29:05and bob's share of them uh
29:08yes and is it fair to say that
29:11this was would highly acrimonious be an
29:14exaggeration
29:15it would not be an act it would not be
29:17an exaggeration would it potentially be
29:19an understatement
29:20yes and as a result of this litigation
29:24was there eventually a settlement
29:26where your brother bob was paid tens of
29:29millions of dollars and basically
29:31bought out of any of the family business
29:33any of the trusts
29:34that is correct when approximately did
29:37this occur
29:382006.
29:42has your brother made it clear in
29:45his actions things he said things you
29:48have heard
29:49that he holds animosity towards you
29:53as a result of that settlement leading
29:58what was in general i'll allow it it's
30:00leading i'll allow it
30:03yes i've heard things that have been
30:05said that lead me to believe he's not
30:07happy with the settlement
30:08and and has he made clear that he still
30:10harbors deep feelings of anger towards
30:12you leading
30:13sustain how's your brother
30:17ask him how it well in in in things you
30:20listen to dealings you've had statements
30:23you've made aware of
30:25has your brother indicated how he feels
30:26about you to this day yes
30:28and what are those feelings he'd like to
30:31murder me
30:32and are you aware of your brother in
30:34fact making calls from pennsylvania
30:36discussing that very subject i am aware
30:38of that yes
30:40did you take those and this is a yes or
30:41no question
30:43do you take those threats seriously yes
30:45i did
30:48i want you to listen very carefully this
30:49next set of questions
30:51again i'm going to lead you so i want
30:54you to only answer yes or no
30:56unless i end up asking for more of an
30:58explanation do you understand that
30:59i do understand after bob jumped bale
31:02and galveston and was on the run from
31:04authorities
31:05did you become aware that he had shown
31:08up at your home in ketone
31:10hearsay calls for your side
31:13okay um you're on just so we know we've
31:17litigated yes and i'm trying to lead
31:19let's sidebar again
31:35all right uh back in session ladies and
31:37gentlemen we have a fascinating and
31:38intricate
31:39legal issue that i want to explore uh
31:42full extent for these lawyers and that
31:46means that we'll take five minutes
31:47now and 15 minutes after lunch i'll have
31:50to come back after a nice
31:52long lunch at 1 45. 1 45.
31:55you're not traversing on yourselves or
31:57with anyone else in any subject
31:58connected with this case do not form or
32:00express any opinion
32:02on the case mr durst united states
32:05testimony with any other
32:06weakness and you'll be excused as soon
32:09as the jury stepped out
32:10until one
32:16leaving so we have objections on
32:20relevance and on hearsay and
32:24the the basis for admission of the
32:29evidence of this uh efforts to
32:34uh kill or steps toward or intention
32:38of robert durst to kill his brother
32:40would be first
32:43would to the extent that douglas durst
32:46knows about it it would
32:47engender some fear which might affect
32:49his
32:50testimony and to some extent that's
32:53admissible to show
32:54the credibility of this witness however
32:57of course there is some
32:59danger would there be too much of this
33:01disproportion to the credibility
33:03issue that it would be more prejudicial
33:05than probative the people offer a second
33:07basis
33:08and that is something that we already
33:09litigated that's the relevance of this
33:13uh evidence to show a an intent
33:18that uh towards persons who might supply
33:22evidence towards the his criminal
33:24prosecution
33:27there's a similar situation with the
33:29gilberto of
33:30nijami there were notes indicating
33:33a plans or intentions towards douglas
33:37durst and ms
33:38najami the this
33:42these questions went to jumping bail and
33:45heading to
33:47pennsylvania and i was aware we
33:49litigated this
33:50there is a secondary problem and that is
33:52that this specific
33:54instance uh does call for some
33:57here's ultimately would cause call for
33:59hearsay
34:00the foundation for his belief would be
34:03based on something someone
34:04told him and then when that particular
34:07conversation that's not the hearsay the
34:09hearsay is when what did the
34:11gardener tell you that would call ten
34:13call for hearsay
34:14so yes mr mr loon please explain your
34:17position so that we can
34:19appropriately limit this inquiry
34:21understood so number one your honor
34:23the gardner we certainly could have
34:25called and if the defense wants
34:26we'll call him and he can come in and he
34:28can testify
34:29to exactly what he observed his
34:32observations which the defense has
34:34are far more prejudicial than the three
34:36leading questions
34:37that i was going to ask that's number
34:39one number two
34:41mr durst himself in the 2001 jail calls
34:44which the court has listened to
34:46admits this incident admits that he went
34:49over to douglas's and in fact
34:52the idea is going to be that he talks
34:54about igoring
34:55bm who we can identify as douglas the
34:58court already admitted
35:00that information the people's uh offer
35:02of proof
35:03was that number one he compares
35:06the way that he was feeling about
35:08douglas to the way he felt about kathy
35:10and we are arguing that he killed kathy
35:12in addition
35:13during that conversation that was
35:16recorded
35:16mr durst ends up acknowledging that in
35:19fact he had gone over to douglas's
35:21and when the person that he is speaking
35:23to mr durst says in essence you know
35:26what i don't think he knew what i was up
35:27to
35:28and the other person says oh i think he
35:31def if i knew
35:32what you were up to i think he
35:34definitely knew
35:35what you were up to and mr durst
35:37response oh quote he don't know me like
35:39that
35:40he might know me like that now but he
35:43didn't really know
35:44and when you listen to the call it's
35:46very clear what mr durst is saying is
35:48that he went
35:49over there with the intention to harm
35:51douglas so now what they appear to be
35:53objecting to is they're saying hey
35:54listen
35:55you have a hearsay problem we want you
35:57to bring in the gardener
35:58who made the observations be careful
36:00what you asked for
36:01because we're more than happy to bring
36:03him in here and have him go through
36:05point by point we did in in conjunction
36:08and
36:08because the court's rulings i led him
36:11with very three
36:12simple innocuous questions um i want to
36:15also add
36:15we're also going to get to the 2008
36:17incident this is the 2008 incident
36:20on may 17 2008 this is from the motion
36:23the court granted
36:24paul ranganese a security guard for doug
36:26the stirs
36:27saw a defendant drive into the driveway
36:29of douglas's katona new york residents
36:31reagan reagan uh reagan he saw a
36:34defendant wearing a blue ski mask
36:37with eye openings pulled back into his
36:39forehead
36:40this is not winter time reganese
36:42approached defendant and pulled his
36:44firearm while directing defendant to
36:45stop
36:46defendant did not immediately comply
36:49when reagan's was alongside the
36:50defendant's vehicle defendant
36:51accelerated in reverse and drove
36:53forward at a high rate of speed away
36:55from douglas's residence
36:59so the problem the issue that we have
37:02is that very clearly number one
37:05mr durst has admitted to in essence
37:09plotting to kill his brother douglas
37:11he has compared the way that he feels
37:13about douglas
37:14to the way he felt about kathy and our
37:17argument and position is is that that is
37:19what he did that he killed her so it is
37:221202.
37:23uh i you've already described some of
37:25this uh
37:26to uh to the court the court already
37:29ruled that this was
37:30relevant but now we're presented with a
37:33hearsay objection and uh
37:34and a new 352
37:38argument i uh i hear that 352 argument
37:42but i
37:42i do think this is certainly
37:46a probative evidence and
37:49it maybe the jury should hear
37:52from those witnesses or perhaps it's
37:55it's pretty
37:56disturbing material i think but but
38:00it's relevant so maybe you'll reach a
38:03reach an agreement but it's 1202 we're
38:05going to come back at 1 30
38:07and uh and the defense can weigh whether
38:09or not
38:10allow and and i directed mr lewin to
38:13lead
38:13during a part of that in for the purpose
38:16of avoiding anything inadmissible these
38:18accusations of
38:19of thefts that i excluded under 1101
38:23i didn't think that was necessary and i
38:24think mr lewin did a good job steering
38:26away from the prejudicial and
38:28inadmissible material i think he was
38:30trying to do the same thing
38:32here but of course the mention of it is
38:34inescapably
38:36prejudicial question is is whether it's
38:38more prejudicial substantially more
38:40prejudicial than probative
38:42so far i don't i don't see that so but
38:45i'll let you work it out and also
38:47hear you i haven't heard your argument i
38:49heard you in chambers you can reiterate
38:51your argument or you can change course
38:53that's fine either way i'll see you at 1
38:5530.
38:55okay for recess

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