unreasonable doubt: manipulating jurors’...

UNREASONABLE DOUBT:MANIPULATING JURORS’PERCEPTIONS IN A CLOSINGARGUMENT AT TRIAL

Pamela Hobbs

ABSTRACT

This paper seeks to explain the jury’s verdict of acquittal in the bizarre caseof eccentric millionaire Robert Durst, who was charged with the murderof Morris Black after Black’s body parts were found floating in GalvestonBay off the coast of Texas. Though an analysis of a portion of the defense’closing argument, this paper examines the Durst defense team’s strategy ofdirecting the jury’s attention to a single event – the confrontation that resultedin Black’s death – in order to effect a shift in focus that allowed them to use“reasonable doubt” to leverage their argument that the prosecution had notmet its burden of proof. This paper demonstrates how this strategy acted toconstruct the “unreasonable doubt” that resulted in the jury’s verdict.

INTRODUCTION

The jury is a unique feature of the Anglo-American legal system, and itslongevity and continuing popularity are indicative of Americans’ overriding faith

Studies in Law, Politics, and SocietyStudies in Law, Politics, and Society, Volume 35, 107–142Copyright © 2005 by Elsevier Ltd.All rights of reproduction in any form reservedISSN: 1059-4337/doi:10.1016/S1059-4337(04)35004-0

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in juries’ abilities to reach fair and just decisions. Moreover, research revealsthat this faith is not misplaced: In a landmark study of actual criminal trials,the presiding judge agreed with the jury’s verdict in 74.6% of cases (Kalven& Zeisel, 1966, p. 56, 57). Nevertheless, occasionally a jury in a criminalcase shocks community sensibilities by rendering a verdict that appears todisregard incontrovertible evidence of the defendant’s guilt. And while it mightbe assumed that the jurors are in a better position to assess the evidence than isthe general public, post-verdict juror interviews in such cases are generally notseen as revealing information that justifies their reasoning, and thus act only tocompound public outrage, leaving the question of what motivated the jury’s verdictunanswered.

In recent years, such cases have attracted the interest of sociolinguists, who haveaddressed the role of language in the construction of evidence at trial (see, e.g.Cotterill, 2001[O. J. Simpson murder trial];Matoesian, 1999a, b, 2001 [WilliamKennedy Smith rape trial], 2001; Goodwin, 1994[Rodney King beating trial];see alsoLynch & Bogen, 1996[Iran-Contra hearings]). While the majority ofsuch studies have examined particular discursive practices without attempting toaccount for the outcome of the case, Goodwin’s cogent analysis of the 1992 trialof four white Los Angeles police officers charged in the brutal beating of RodneyKing, an African-American motorist, in the course of a traffic stop demonstratesthe manner in which the lawyers for the officers refuted the graphic evidenceprovided by an onlooker’s videotape with expert testimony in which the beatingwas redefined as “an example of careful police work” (1994, p. 616), resultingin an acquittal which triggered the most widespread civil unrest in Los Angeleshistory.

In similar fashion, this paper seeks to explain the jury’s verdict of acquittalin the bizarre case of eccentric millionaire Robert Durst, who was arrested andcharged with the murder of Morris Black after Black’s body parts were foundfloating in Galveston Bay off the coast of Texas in September, 2001. In the faceof overwhelming evidence of Durst’s guilt, including his post-arrest flight bywhich he forfeited $300,000 in bail, Durst’s defense team developed an audaciousstrategy which consisted of admitting to Durst’s acts of concealment, includinghis dismemberment and disposal of Black’s body, in order to argue that thesefacts were “uncontested” and thus irrelevant to the determination of guilt orinnocence, and then recharacterizing the evidence to present the prosecution’sarguments, based on commonsense understandings, as outrageous, while their ownoutrageous claims were presented as simple common sense. Through the analysisof a portion of the defense’s closing argument, this paper demonstrates how thisstrategy acted to construct the “unreasonable doubt” that resulted in the jury’sverdict.

Unreasonable Doubt 109

The Case

On September 28, 2001, Robert Durst, the 58-year-old heir to a Manhattan realestate fortune, killed his 72-year-old neighbor Morris Black in the kitchen of a$300-a-month efficiency apartment in Galveston, Texas, that Durst, disguised as amute woman and using the name of a high school classmate, Dorothy Ciner, hadrented several months earlier. The man whom the tabloids referred to as “RichBob/Poor Bob” (Pienciak, 2003) had left New York in November, 2000, followingthe reopening of the investigation into the unexplained disappearance of his wifeKathleen in 1982 after he allegedly dropped her off at a Westchester County,New York train station (Malnic, 2001). Durst had also been named as a “person ofinterest” in the execution-style slaying of his longtime friend and confidante SusanBerman, who had been found dead in her home in the Benedict Canyon area ofLos Angeles on Christmas Eve, 2000 (Leovy, 2001c). At the time of her death, theNew York authorities were seeking to interview Berman about the circumstancesof Kathleen Durst’s disappearance (Ingrassia & Ross, 2001).

Leaving Black’s body on his kitchen floor, Durst went to a local hardware storewhere he bought garbage bags, a drop cloth and a cover for a bow saw (Bandler,2003). He then purchased a $300 money order, signed Black’s name to it and mailedit to their landlord in payment of Black’s rent, in order to conceal Black’s death(Hart, 2003b). Having completed these transactions, he returned to the Galvestonhotel where he had been staying that week, got a haircut and ordered a fried chickensalad, a turkey club sandwich, and a bottle of Guinness beer from the room servicemenu (Bandler, 2003). The following day, he dismembered Black’s body, cuttingoff the head, arms and legs; he then loaded the remains into garbage bags anddumped them into the ocean (Hart, 2003b).

Black’s headless torso was sighted on September 30 by a 13-year-old boy whowas fishing with this father in Galveston Bay, and police divers subsequentlyretrieved the garbage bags containing his severed limbs (his head was never found),along with a hardware store sales receipt and a newspaper bearing the addressof Durst’s apartment building (Leovy, 2001a). A search of the trash outside thebuilding yielded an empty box of garbage bags, packaging for a drop cloth, a paringknife, a .22-caliber pistol, a shell casing, and a receipt for an eye examination forDurst (Ibid), while a search of the building disclosed traces of blood in Durst’sapartment and a mopped trail of blood leading to Black’s apartment across thehall, where police found a bloodstained paring knife (Leovy, 2001c).

At the time of these discoveries, Durst had retrieved $500,000 of “emergency”cash that he kept hidden beneath a church, and had fled to New Orleans, where hehad another apartment; however, he was arrested when he returned to Galvestona week later to pick up the prescription glasses he had ordered (Bandler, 2003;

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Hart, 2003a). He posted $300,000 bail the following day, and was declared afugitive when he failed to appear for his arraignment on October 16 (Ingrassia& Ross, 2001; Leovy, 2001b). By that time he had traveled to Mobile, Alabama,where he rented a Chevrolet Corsica from Rent-A-Wreck, using Black’s driver’slicense (Pienciak, 2003). He remained at large for six weeks, sparking a nationwidemanhunt, and was taken into custody in Pennsylvania on November 30, 2001,the day before he was scheduled to be featured on a segment ofAmerica’s MostWanted, after allegedly shoplifting a a newspaper, a box of Band-Aids, and a $5.49chicken sandwich, despite having $500 in his wallet (Malnic, 2001; Pienciak, 2003;Zambito & Ingrassia, 2001). He voluntarily provided police with his name, dateof birth and Social Security number, and was booked on suspicion of murder aftera search of a nationwide database revealed that he was wanted in Texas (Malnic,2001; Zambito & Ingrassia, 2001). He was subsequently extradited and held in aGalveston jail pending trial (Hart, 2003b).

The Verdict

Durst’s trial began on September 22, 2003, before a jury of eight women and fourmen (Hart, 2003b). Durst’s defense team, headed by prominent Houston criminaldefense attorneys Dick DeGuerin and Mike Ramsey, argued that Durst and Black,both of whom were gun enthusiasts, had become friends, and that Durst had givenBlack a key to his apartment so that Black could watch the media coverage ofthe September 11 attacks, but had revoked this privilege after Black dischargedDurst’s pistol in the apartment as a prank on two separate occasions. However,on September 28, 2001, Durst found Black in his apartment, and the two menstruggled over Durst’s gun, which Black had retrieved from its hiding place in theoven. As the two men grappled with each other in the crowded kitchen, the gundischarged, striking Black in the face and resulting in his death. Thus, DeGuerinand Ramsey argued, Durst had acted in self-defense, and his subsequent acts ofconcealment, including the dismemberment and disposition of Black’s body, didnot prove otherwise.

On November 11, after six weeks of testimony and five days of deliberation, thejury found Durst not guilty of murder (Hart & Gold, 2003). The verdict, which sentgasps through the courtroom (Ibid), surprised legal commentators and rekindledpublic debate about the influence of a defendant’s wealth on the outcome of hiscase. CNN legal analyst Jeffrey Toobin, who declared himself to be “shocked,astonished, absolutely bamboozled by this verdict,” characterized the acquittal as“a demonstration of the fact that it is better to be rich than poor,” and noted, “Youcould be sure that most of the people on Texas’ death row did not have the kind of


legal help that Mr. Durst did” (CNN, 2003). Bruce Nichols ofThe Dallas MorningNewsconcurred, in an article that opened with this paragraph:

T. Cullen Davis. O. J. Simpson. Now Robert Durst. All acquitted of high-profile murder charges.All wealthy men able to hire high-powered lawyers. All triggers for debate about whetherAmerican justice is fair to both rich and poor (Nichols, 2003b).

Defense attorneys agreed that the quality of a defendant’s representation is a keyfactor in securing a favorable outcome. Houston defense attorney Jack Zimmermannoted that “[t]here’s no substitute for first-rate lawyering, and you had somegreat lawyers on this case,” and emphasized that “[t]he fact that the accusedwas represented by top-rate lawyers should not be considered a matter of noconsequence” (Freemantle, 2003). Stanley Schneider, an attorney who had workedwith both, confirmed, “You’re dealing with two of the best there is in Dick andMike” (Ibid).

Winning Strategies

How important is the attorney’s skill, talent and ability in determining the outcomeof a case? Bennett and Feldman argue that while “[i]t is tempting to attributesome considerable portion of a trial outcome to [lawyers’] respective displaysof style, charisma, body language, witness sequencing, rhetorical strategies, anddiversionary legal maneuvers,” the impact of these stylistic elements “lies in theirconnections to key structural elements of the stories in a case” (1981, p. 150). Thus,“it is simplistic to explain the effectiveness of lawyers in narrow terms of oratory,charismatic presence, or legal knowledge. Effectiveness is more a function ofwhether these and other resources can be employed selectively at critical juncturesin the development of the overall story about a crime” (Ibid). Their analysis thusidentifies two critical components of trial success.

The first of these is the attorney’s “presence” (seeHobbs, 2003a, p. 276), thecharismatic appeal that is thesine qua nonof courtroom success. Often confusedwith a lawyer’s fame, it is in fact acauserather than aneffect: Legendary triallawyers are not dazzling because they are celebrities; they are celebrities becausethey are dazzling. Thus while a front-page article inThe Denver Postentitled“Cochran mystique able to tip legal scales” focused on nationally-known triallawyer Johnnie Cochran’s fame as the critical element of his trial success, lawyersinterviewed for the article focused on his personal qualities. Bernard Charbonnet,a New Orleans attorney who had gone to trial against Cochran, stated that “juriesare mesmerized by Johnnie,” while New York litigator Albert J. D’Aquino placedCochran in “that elite category of older lawyers who’ve honed their skills so well”

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(Simpson & Kelly, 2003, p.12A). Similarly, aLos Angeles Timesarticle featuringtrial lawyer, senator, and then-presidential-candidate John Edwards describedEdwards’ closing argument in a case in which a five-year-old girl sustainedserious injuries in a wading pool accident, noting that he spoke “[f]or ninetyminutes. . . without notes, without missing a key point,” and that many who heardthe argument, including the trial judge, “remember it as the best closing argumentthey had ever heard” (Savage, 2004, p. A1). The jury in that case returned a verdictof $25 million (Ibid., p. A12).

The ability to command attention is an indispensable courtroom skill, as Ilearned during 15 years of practice as a personal injury litigator. As a novicepractitioner, I was frequently dismayed when my carefully-prepared presentationswere eclipsed by the superior ability of a more experienced opponent to imbue hisarguments with persuasive force, and strove to develop that characteristic displayof style – the patterns of timing, intonation and phrasing, the postural and gesturalcues – that embody an attorney’s presence. At the same time, however, the modelof legal advocacy provided by these experienced litigators revealed that suchstylistic displays should not be viewed as an end in themselves, but as a meansof shaping the court’s or jury’s perceptions of the facts and issues. Thus Bennettand Feldman are correct that a lawyer’s effectiveness entails substance as well asstyle.

The keystone of effective case presentation is the lawyer’s “theory of the case,”the basic underlying idea that will serve both to organize the evidence and to justifya decision in favor of his or her client (Hobbs, unpublishedms;McElhaney, 1981,p. 4). Famed litigator James McElhaney counsels lawyers to “develop a theoryof your case which explains as much of the uncontroverted evidence as possiblein your favor” and to encapsulate that theory in a memorable phrase, or “theme,”which “epitomizes the theory” (1981, p. 38). The theme – ideally a concisely-phrased unitary concept that reflects positively on the client and/or negatively onthe opposition – should be introduced in the opening statement, and should betailored to fit the facts so that it cannot be turned against the party who introducesit (Hornstein, 1984, pp. 9, 10;McElhaney, 1981, p. 40). Experienced attorneysrecognize that the ability to develop a theme is critical to trial success. Thus NewYork attorney Albert J. D’Aquino, paying tribute to Johnnie Cochran’s abilitiesand effectiveness, noted that “[h]e tries to identify a theme and stick with that andpush it through, rather than be a technician and throw every conceivable fact at thejurors” (Simpson & Kelly, 2003, p. 1A).

This article presents an analysis of the Durst team’s theory of the case, asdefinitively elaborated in their closing argument at trial, and provides a detailedexamination of the recharacterization of the evidence that resulted in the jury’s“shocking” verdict of acquittal.


Data

Although courts in the United States are open to spectators, including members ofthe media, the question of whether to allow cameras in courtrooms has been debatedfor decades. Proponents argue that the right of public access to the courts, as wellas the First Amendment’s guarantee of freedom of the press, mandate that camerasshould be allowed, while opponents cite the “media circuses” which resulted fromunlimited press coverage of cases such as the Lindburgh baby kidnapping caseand the O. J. Simpson trial, which raised a host of concerns relative to the soundadministration of justice, including the risk of unfair prejudice to the defendant inthe former case, and, in the latter, the danger that the presence of cameras may causelawyers, and even the trial judge, to “play to the media” rather than scrupulouslyperforming their legitimate roles. The federal courts prohibit the photographing orvideotaping of proceedings, while state courts generally address the issue on a case-by-case basis. Galveston District Judge Susan Criss strictly limited the presenceof cameras in her courtroom during Durst’s trial, allowing only the attorneys’opening statements and closing arguments to be recorded (Nichols, 2003a). Thedata presented here were transcribed from a videotape accessed via theCourtTVweb site.

The practice of law in American courts retains a distinctive local flavor, andthere is a wide variation in the conventions of courtroom practice in differentstates (Hobbs, 2003b, p. 246). Texas is known for the propensity of its jurors toaward the ultimate punishment (multi-million dollar verdicts in civil cases andthe death penalty in criminal prosecutions), and for the wide rein that lawyers aregenerally given in presenting evidence and argument at trial. In this case, ratherthan requiring each party to designate one lawyer for final arguments, Judge Crissallowed each of the two prosecutors and three defense lawyers involved in thecase to present a portion of his side’s closing argument or “summation,” as thesepresentations are formally termed. This article will examine the segment of thedefense’s closing argument presented by attorney Michael Ramsey.

Lawyers give careful attention to the selection of the clothes that they wearin court (Hobbs, 2003a, p. 279), and established practitioners favor expensive,meticulously tailored clothing that lends distinction to their performance. Thesilver-haired Ramsey, who graduated from law school in 1965 and was in histhirty-eighth year of practice at the time of this closing argument, wears wire-rimmed glasses, a conservative black suit, a white, French-cuffed dress shirt, asubtly-patterned maroon necktie, and a large gold watch.

A lawyer should develop a presentational style that fits comfortably with theimage that he projects. Because people tend to react positively to those whomthey see as similar to themselves (seeTrenholm, 1989, p. 190), a local practitioner

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can engender a strongly positive reaction from jurors who share and recognizehis accent and speech register. Ramsey speaks with a Texas twang, and uses alow-key, informal, rambling, folksy style of argumentation, as if to say, “I’m notgrandstanding here; I’m just telling it like it is.” His style exemplifies the rhetoricaltechniques of a class of practitioners that one Atlanta attorney labeled “Cornbreadlawyers”:

These are the people that say ‘I’m just an ole country lawyer’ and they may be as sophisticatedas anybody you want to see. But they’re gonna adopt a drawl and adopt the colloquialismsto make themselves human to the jury, to get their point over to those that they’re trying topersuade (quoted inGarner & Rubin, 1986, pp. 38, 39).

The 48-minute argument segment runs to 568 lines of transcript. Although adetailed analysis of the entire argument is beyond the scope of this paper, I haveexcerpted those portions, totaling approximately 180 lines, which fairly representthe main points and themes developed. Empty brackets in the transcript denoteomitted material.

Analysis

Closing arguments, which represent the attorney’s final opportunity to persuade thejury of the merits of his client’s claims, also afford the greatest latitude to do so thatis offered him at trial (Hobbs, 2003a, p. 278). Of the many diverse skills requiredof a litigator, those of cross-examination and summation are the most difficult tomaster, and the ability to deliver an effective closing is a hallmark achievement ofeffective trial performance.

The data examined here include the key arguments presented in Durst attorneyMichael Ramsey’s summation to the jury. On its surface, the summation appearsrambling and disjointed. It is characterized by frequent, rather abrupt transitionssignaled by the word “Now” or “So,” and the order in which the various issues areaddressed does not appear to follow any particular plan. However, regardless ofits lack of surface polish, an experienced attorney’s style of delivery is a carefully-crafted and minutely-calibrated performance (seeHobbs, 2003a, p. 276); formerpresident William Clinton, himself a lawyer, is an excellent example of a speakerwho used informality and feigned spontaneity with masterful effect.

Ramsey’s argument develops a twofold strategy, a tactic which lawyers learnfrom their interactive exchanges with judges during hearings, where it is essentialto have a comeback if your first argument is shot down. Initially, he frames theissue by suggesting to the jurors that the only question with which they need toconcern themselves is the manner of Black’s death – and that any consideration


of Durst’s actions before and after Black’s death is actually beyond the scope ofthe trial. Having presented this contention, Ramsey then proceeds to attempt toforestall any negative conclusions that the jurors might reach if they decide toignore his suggestion, by respecifying the meaning of key pieces of evidence inorder to deconstruct the prosecution’s theory of the case and to re-present it aspreposterous and unbelievable.

Framing the IssuesIn this case, Durst’s known activities both before and after Black’s death providestrong circumstantial evidence that he murdered Black, while the only source ofinformation about Black’s death is Durst himself. As a result, any attempt to makesense of the known facts is frustrated by the absence of any verifiable descriptionof the event that is sought to be explained.

However, attempts to assess the plausibility of accounts of events often employa dual standard of “Did it happen that way?” and “Could it have happened thatway?”, and in some cases the latter question may be more important than the formerin grounding understandings of the “truth” of a particular account (Bennett, 1978,p. 21). This duality is illustrative of the human propensity to fill in gaps createdby unavailable factual information with logical analysis; indeed, such routineinferencing is indispensable to the understanding of many commonplace everydayevents.

In this case the unavailable factual information makes it impossible to answerthe first of the dual questions on the basis of objective evidence, since the onlyevidence is Durst’s version of the events, and he has a strong motivation to lie. Thiswould seem to be a serious problem for the defense, given the strong circumstantialevidence of Durst’s guilt. However, Ramsey transforms this unfavorable situationinto an advantage by suggesting to the jurors that the prosecution has wasted theirtime presenting irrelevant evidence while failing to focus on the real issues in thecase:

18 [ ] Having said in our opening statement,19 having said during the examination of y – of-of you folks to be jurors, that the20 dismemberment was not contested, that the flight was not contested, that cover-up21 was not contested, 93% of the case, according to my account, and22 you can depend on your own recollection, and your own notes about this, was23 devoted to those uncontested issues. This case could’ve been tried in a week, if24 we’d stuck to the issues. But we didn’t. And, there’s a reason – the same reason25 that Mr. Bennett is holding up the gory pictures. Hold ‘em up, wave ‘em – wave26 ’em right through the bloody rags, and try to make the jury say, “Well, that’s so27 bad, there’s got to be a guilty verdict in the case.” But that’s not the function of a28 jury. And that’s what the judge tells you in her instructions to you.

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Ramsey begins his attack on the prosecution’s case with the deceptivelyuncontroversial assertion that Durst’s dismemberment and disposal of Black’sbody, payment of Black’s rent, and subsequent flight, during which he used Black’sidentity to conceal his own – acts which intuitively suggest his guilt – were “notcontested” by Durst at trial (lines 18–21). With surgical skill, Ramsey thus incisesfrom the case Durst’s acknowledgment that he committed a series of acts – allof which were suspicious, and most of which were themselves criminal – whichare completely consistent with the prosecution’s theory that he murdered MorrisBlack, replacingadmitted wrongswith facts that are not contested.

Having thus subsumed the massive circumstantial evidence – which is legallyadmissible to prove “consciousness of guilt,” and thus valid circumstantial evidenceof murder – under the label of “uncontested issues,” Ramsey proceeds to tell thejury that the prosecution’s presentation of this evidence was irrelevant and a wasteof time, and that the six-week trial could have been concluded “in a week, ifwe’d stuck to the issues” (lines 23, 24). Referring to the prosecution’s use ofphotographs of Black’s body parts, Ramsey states that it is “not the function of ajury” to infer guilt from such evidence (lines 27, 28), and asserts, “that’s what thejudge tells you in her instructions to you” (line 28). In fact, in her charge to thejury, which preceded the closing arguments, Judge Criss did not instruct the jurorsto disregard this evidence, but instructed them that they could consider evidence ofany crimes committed by Durst which had been proved beyond a reasonable doubt(which would have included theseadmittedacts) in determining whether he hadmurdered Morris Black. However, it is highly unlikely that the jury recognized thatRamsey’s argument on this point was in fact contrary to Judge Criss’ instructions,and the prosecution did not object.

Having thus deftly swept aside what he characterized as “93% of the case” (line21), Ramsey frames the issue for the jury, telling the jurors firstwhat, and thenwhat not, to consider:

29 Your job is to find out what happened when Morris Black died. And to30 make a judgment based upon that. Not to go off down a rabbit trail, relative to31 gory pictures or – or bloody pictures or things of that sort. So, let’s get back to –32 those issues and try to – Let me – let me get at it this way. Let me say it a different33 way. It’s a cold calculus you folks have to apply. It is hard, honest, oak-34 bottomed, copper-sheathedproof, that you have to rely on before you can35 convict somebody beyond a reasonable doubt. And that was never argued during36 the State’s opening. Now, I call upon the State to meet the issue in theirclosing.

Ramsey thus focuses the jury’s attention on the one event – “what happenedwhen Morris Black died” – as to which there is no evidence other than Durst’sown testimony, insisting that this is the only issue that is legitimately before


them. Moreover, in cautioning them not to “go off down a rabbit trail, relativeto gory pictures” (lines 30, 31), he unmistakably implies that the prosecutors haveattempted to mislead jurors into considering irrelevant issues when they introducedphotographic evidence of Durst’s dismemberment and disposal of Black’s body.Then, implicitly acknowledging the horror and distaste engendered by the graphicphotographs, he states, “It’s a cold calculus you folks have to apply” (line 33).He immediately enlarges upon this theme, explaining, “It is hard, honest, oak-bottomed, copper-sheathedproof, that you have to rely on before you can convictsomebody beyond a reasonable doubt” (lines 33–35), thus using indirection towarn the jury not to let emotion enter into their deliberations. After emphasizingthat the standard of proof required for conviction is proof beyond a reasonabledoubt, he adds, “And that was never argued during the State’s opening” (lines 35,36). In essence, after accusing the prosecution of devoting “93% of the case” to“uncontested” issues, and thus wasting five weeks of the jurors’ time, Ramsey nowargues that the prosecution never even mentioned the real issue in the case: whetherDurst has been proven guilty beyond a reasonable doubt. He then challenges theprosecution to “meet the issue in theirclosing” (line 36), implying by both hiswords and tone that they will not be able to do so.

Their Case Doesn’t Make Sense; Ours Does

77 Whatreason– what reason, is there in this case for Bob Durst to have78 invited Morris Black into his apartment in order to execute him? Does that make79 any sense at all? Now, the State will answer, “Well, we don’t have to prove plan;80 we don’t have to prove motive.” But you’ve heard it repeated as you were81 selected in this case, what y – what – what – what – the important part about a case is82 it’s gotta make some amount of common sense. And the absence of a motive in83 and of itself, and it is totally, tee-totally absent in this case – the absence of a84 motive can provide reasonable doubt just in and of itself. So this case makes no85 sense if you go with the State’s theory [ ].

Having narrowed the issues to the scene inside Durst’s apartment, Ramsey makesskillful use of the dual standard for judging the credibility of a story, first arguingthat Black’s deathcould nothave occurred the way that the prosecution describedit. The clear implication of his rhetorical question, “Whatreason– what reason,is there in this case for Bob Durst to have invited Morris Black into his apartmentin order to execute him?” (lines 77, 78) is that no one who was planning a murderwould choose to commit it in his own residence. “Does this make any sense at all?”,he asks incredulously (lines 78, 79), thus emphasizing his point. He then presents asimulated counter-argument by the prosecution, “ ‘we don’t have to prove plan; wedon’t have to prove motive’ ” (lines 79, 80), and labels it inadequate on the groundsthat “the important part about a case is it’s gotta make some amount of common

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sense” (lines 81, 82). The implication here is that while it may not be incumbentupon the prosecution to prove motive or plan, the fact remains that it makes nosense to theorize that Durst planned to murder Black in the one location withwhich he (Durst) was identified. After reminding the jury that the prosecution’sinability to prove motive “can provide reasonable doubt just in and of itself,” andthus offering jurors yet another means of justifying an acquittal, Ramsey repeatsthe phrase that will become the theme of his argument, “So this case makes nosense if you go with the State’s theory” (lines 84, 85).

The effect of this insistence that “it makes no sense” to suggest that a personwouldplan to commit a murder in his own residence is to obscure an alternativeexplanation that is perfectly consistent with commonsense notions of how sucheventscould happen: that the murder was not planned, but was the result of asudden, violent argument; however, this possibility has no role to play in Ramsey’sstrategy. Instead, he presents a version of whatdid happen that is consistent withhis client’s plea of “self-defense and accident,” arguing that Black was accidentallyshot in the head as Durst and Black struggled over Durst’s gun, which Black hadtaken possession of:

118 [ ] And it makes all the sense in the world that119 this is an accidental discharge, when they were struggling or scuffling, over the120 gun, here’s the words “accidental discharge”, if all of you can see it. If that is not121 disproved beyond a reasonable doubt, the only verdict that can be written in the122 case is a verdict of not guilty. Now. That is not a finding of fact as to123 innocence or – or anything relative to this case or anything else. What is says is,124 that the State has not mur – met its burden. For whatever reason. Now I’m gonna125 suggest to you that this case is such, in the state it’s in right now, that we would126 win the case, that Bob Durst would win this case, byanystandard, by127 preponderance of the evidence. That the facts themselves explain themselves.

In this segment of his argument, Ramsey presents Durst’s version of the criticalevents, the truth of which is known only to Durst himself. However, Ramseydoes not adopt Durst’s version of the events, for reasons that will become clearas he continues to develop his argument. Instead, he presents Durst’s version aswhat could have happened, again striking the thematic note, “it makes all thesense in the world” (line 118). He then reminds the jury that the defense doesnot have to prove that Black’s death resulted from an accidental shooting; rather,the prosecution must prove beyond a reasonable doubt that the shooting wasnotaccidental: otherwise “the only verdict that can be written in the case is a verdictof not guilty” (lines 121, 122). By emphasizing that a “not guilty” verdict “isnot a finding of fact as to innocence” (lines 122, 123), but only as to whether ornot the prosecution has met its burden of proof (lines 123, 124), he suggests thatbelief in Durst’s guilt neither mandates nor supports a “guilty” verdict. He then


proceeds to predict what the outcome of the case would be “in the state it’s inright now” – a state that can be altered, if at all, by impressions formed duringthe prosecution’s closing – stating that “we would win the case, that Bob Durstwould win the case, byanystandard” (lines 125–127), even the lesser standard ofpreponderance of the evidence. He supports this conclusion with the argument,“The facts themselves explain themselves” (line 127), thus implying that anyrational person would conclude from the facts that the killing was accidental.

There’s Nothing to Show This Was Cool and Calculating

147 [ ] Uh, it is – there are two148 competing theories of reality here. As to what happened. One of them has a good149 deal of proof involved in it, and that is the defense side of the case. The State’s150 case calls for you to make a bunch of inferences or leaps of faith, in order to get to151 the tough proposition that you can truthfully say that Robert Durst intentionally152 and knowingly murdered Morris Black. Now, they have to prove that. They’ve153 got to prove that beyond a reasonable doubt. Before you can ever consider writing154 a verdict. Of guilty. And this is what I want to talk to you about. Because they155 have said on the opening statement, they’re going to demonstrate to you that this156 was a well-planned, cool, calculating and uh – well-planned – I almost said157 ‘premeditated’, I don’t think they used that word, uh, well-planned, uh, murder.158 N-now stop and think about that. Have you heard anything here in court which159 makes you believe this’s been cool, calculating. And Mr. Sistrunk is the district160 attorney, he’s the one that opened the case, he has the right to bind the State’s161 position. And that’s what he told you. That’s their theory [ ].

In this section, Ramsey begins his development of the argument made abovethat, “The facts speak for themselves” by first conceding that the defense andprosecution versions of the facts present “two competing theories of reality” (lines147, 148). Remarkably, he then argues that the prosecution’s version lacks proof,requiring jurors “to make a bunch of inferences or leaps of faith” (line 150), while“the defense side of the case” has “a good deal of proof involved in it” (lines 148,149). Thus Ramsey continues to insist that Durst’s dismemberment and disposal ofBlack’s body, and his subsequent flight,all of which Durst has admitted, provideno evidence that Durst murdered Black, and at the same time to insist that Durst’sclaim that he accidentally shot Black in a struggle over his gun, which is supportedonly by Durst’s own highly questionable testimony, finds solid support in theevidence.

Having thus redistributed the weight of the evidence in a way that inaccuratelysuggests that it tends strongly in his client’s favor, Ramsey reframes the issue beforethe jury as “the tough proposition that you can truthfully say that Robert Durstintentionally and knowingly murdered Morris Black” (lines 151, 152), maximizingthe prosecution’s burden of proof through the addition of the words “tough,”

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“truthfully,” “intentionally” and “knowingly.” He then adds, with measuredemphasis, “Now, they have to prove that. They’ve got to prove that beyond areasonable doubt. Before you can ever consider writing a verdict. Of guilty” (lines152–154), each successive sentence reiterating his skepticism, and thus paving theway for his central attack on the prosecution’s case, which he announces with thephrase, “And this is what I want to talk to you about” (line 154).

Ramsey now launches the initiative that will structure the remaining portionsof his argument: “Because they have said on the opening statement, they’re goingto demonstrate to you that this was a well-planned, cool, calculating and uh –well-planned – I almost said ‘premeditated,’ I don’t think they used that word,uh, well-planned, uh, murder” (lines 154–157). His whole manner of presentation,including his fumbling of the terms, presents the contention as flatly incongruous.Pursuing the point, he admonishes the jurors, “N-now stop and think about that,”and then repeats, “Have you heard anything here in court which makes you believethis’s been cool, calculating” (lines 158, 159). Despite the uncontroverted evidencethat, following Black’s death, Durst left Black’s body on the floor of his apartment,checked into a hotel, got a haircut and ordered dinner from the room service menu,Ramsey’s intonation, and the phrasing of the question, strongly imply that theanswer to this question is “no.”

In discussing the importance of a theme which encapsulates the theory of thecase, famed trial attorney James McElhaney cautions, “It is essential to make thetheme fit the facts well enough so that this memorable phrase at the beginning ofthe trial is not turned against you” (1981, p. 40). Here the prosecution’s themefollows McElhaney’s rule. Nevertheless, in an audacious move, Ramsey seizes thephrase, and the imagery it evokes, in order to use it as a tool to deconstruct thetelltale narrative of his client’s deeds and to re-present what appears to be a strongcircumstantial case against Durst as a flawed prosecution strategy to mislead thejury.

However, aware that Durst’s lack of credibility poses a danger to his theory,Ramsey pauses to lay one additional piece of groundwork.

171 Now I – I wanna, uh, tell you that, uh, where I want to leave this overview172 that I’m tryin’ to talk about here, is that I want the State on its closing to tell you173 convincingly what their proof is that there was a knowing, intentional murder174 here. And – and one of the ways that you can come to grips with this – with this175 kind of question is – is, if you get back there and start to deliberate and somebody176 says, “Well, Mr. Bennett proved that Mr. Durst lied on his col-college177 application, uh, he lied and he said he was an, uh, a – abotanist when he was not,178 uh, during the coverup, uh, phase of the case he lied repeatedly.” There’s no179 question about that. It – it happened. “So, I just don’t believe Bob Durst.”180 Then take Bob Durst’s testimony out of the case. Take it out. Cut it out of


181 the case. And tell me whether or not – you’ll say not, on cold reflection – that182 the State has proven that it was in fact an intentional, knowing, willing,183 intentional killing of Morris Black. They haven’t. It makes no common sense.184 That he would invite a man into his – apartment, and murder him in his apartment.

In this segment of his argument, Ramsey challenges the prosecutors to explainin their closing “what their proof is that there was a knowing, intentional murderhere” (lines 173, 174). In so doing, he can anticipate that their response will consistin part in pointing to his client’s many lies, which would be damaging to Durstunder any circumstances, but are particularly so here, where Durst’s testimony isthe only evidence supporting his version of the pivotal events. However, Ramseyadroitly pulls the rug out from under this argument by telling the jury that proof ofDurst’s version of the facts is unnecessary because the prosecution has not met itsburden of proving “that it was in fact an intentional, knowing, willing, intentionalkilling of Morris Black” (lines 182, 183).

Ramsey has now provided the jurors with ostensibly persuasive reasons to ignoreall of the evidence that is damaging to his client: Durst’s dismemberment anddisposal of Black’s body, and his subsequent bail-jumping and flight, are irrelevantbecause they are “uncontested,” while his lies are irrelevant because the prosecutionbears the burden of proof. Having thus argued for the exclusion from considerationof all evidence except for the bare fact that Durst did, in fact, cause Black’s death,Ramsey repeats the hallmark phrase, “It makes no common sense,” to which heappends his could-not-have-happened version, “That he would invite a man intohis – apartment, and murder him in his apartment” (lines 183, 184).

An Amateurish Attempt at Cover Up

216 Now, let’s talk a little bit about the State’s case, and their theory of the217 case. Their theory of the case apparently is, at least one of their theories is, that218 Morris Black was murdered in order to steal his identity. Now here we got a – a219 zillionaire, with all the money in the world, to buy whatever identity he wants to220 buy from any quarter at any price. And they want you to think that he came here221 to Galveston in order to cut out of the pack a loner like Morris Black – well,222 Morris wasn’t such a loner, I mean, Morris – Morris made as much noise as223 anybody in Galveston; everybody knew who he was. In order to steal what? A224 driver’s license that was about to expire and a Medicaid card. That was used only225 after Bob started to run away, and then only used twice in Mobile at – at – when he226 was renting a car there, and when he was staying in motels there, where the guys227 from the rental agencies were gonna call him back. Those were the times that he228 used the identity that he was supposed to have committed murder in order to get.229 Now does that make any – is that common sense? Does that make any sense to230 you? What makes sense here is that there was panic after the event, and an231 amateurish, impoverished, poor, addled attempt at flight to cover up. That’s what232 makes sense [ ].

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Ramsey now begins to deconstruct the narrative chain of events that surroundshis client with a palpable aura of guilt. Seizing on what is arguably the weakestaspect of the prosecution’s case, he attacks their theory that Durst murdered Blackin order to “steal his identity.” Durst had in fact taken Black’s driver’s licenseand Medicaid card, and had used Black’s identity to rent a motel room and a carduring the Alabama segment of his cross-country flight; however, this was mostlikely an effort to sow false evidence that Black was still alive – a possibility thatwas never identified by the prosecution. The implausibility of the prosecution’scontention that Durst would have believed that it was necessary to commit murderin order to obtain a fraudulent identity thus lends force to Ramsey’s argument thatbecause Durst was “a zillionaire, with all the money in the world, to buy whateveridentity he wants to buy from any quarter at any price” (lines 216–218), it doesnot “make any sense” that he would murder Black in order to steal his identity.

It is to this argument, accurately aimed at a legitimate weakness in theprosecution’s theory, that Ramsey fastens his alternative explanation for his client’sactions – an explanation that strains credulity to the breaking point: Knowing thatthe evidence has established that Durst, leaving Black’s dead body on his floor,had gone to his hotel, where he got a haircut and ate dinner, and then went tosleep; awoke on the following day and purchased garbage bags, tools and a moneyorder with which to pay Black’s rent; dismembered Black’s body, triple-wrappedit and placed it in garbage bags in his car, drove to Galveston Bay and droppedthe bags into the ocean – knowing that the jury had heard this evidence, Ramseyargues that Durst’s actions constituted “panic after the event, and an amateurish,impoverished, poor, addled attempt at flight to cover up.” In so doing, he directlychallenges the prosecution’s claim that the actions show Durst to be “cool andcalculating.” With delicacy and skill, Ramsey then proceeds to establish a point-by-point connection between Durst’s admitted actions and this re-specification ofhis motives and conduct.

You’ve Got to Use Common Sense

257 You’ve got to use, and the judge uses this term in her charge, common258 sense, in coming to conclusions in a case like this. Uhhh, yes. Uh, there259 were – there were primitive attempts at, uh, at-at a cover-up here. Uh, he paid260 Morris’s rent, he, uh, uh, uh, did go by – his – one of the – one of the most amazing261 things about the whole case – They’re saying that it happened on the262 twenty-eighth, and yet they’re proving that Bob Durst stayed in town till the first.263 That’s their proof. The cell phone records prove that he was here until the first.264 Four days. After this thing happened. Now that’s his well planned, and cool,265 calculated, well-planned scheme to steal the identity of Morris Black; he hangs266 around here. He misfires.


In this section, Ramsey invokes the authority of the judge by linking his theme of“common sense” to her instructions, and then, by his immediate transition to thecharacterization of Durst’s acts as “primitive attempts at a cover-up” manages toimply that this characterization represents the commonsense view of those acts.He briefly mentions the fact that, immediately after Black’s death, Durst paidBlack’s rent (lines 259, 260), and then interrupts himself in mid-sentence to statethat “one of the most amazing things about the whole case” is that Durst did notleave town until four days after the killing (lines 260–264). He then adds to this thecomment, “Now that’s his well-planned, and cool, calculated, well-planned schemeto steal the identity of Morris Black; he hangs around here” (lines 264–266), asif to imply that if Durst had actually been cool and calculating, he would haveleft town immediately. This, of course, is flatly counterintuitive, since flight is theprototypical panic reaction. Nevertheless, Ramsey continues to suggest that theprosecution’s characterization of Durst’s actions is fatally flawed.

304 Let’s talk about some more specific facts of the case. Uh, let me talk305 about those four days. That Bob Durst stayed here in Galveston, uh, doing his cool306 and calculated thing. Well, I imagine – I mean let me read the actual words that307 were spoken on the opening statement. Here’s what was said: “That the308 defendant, very calmly, without hesitating at all, voluntarily and without panic309 took action on his plan, fully aware, the defendant took charge of the crime scene.310 Uh, he killed Morris Black and put the rest of his plan into action.” I’m quoting311 directly what Mr. Sistrunk said [ ].

His introductory phrase, “Let’s talk about some more specific facts of the case”(line 304) demonstrates that he is not afraid to enter into the particularities of hisclient’s actions. Addressing the four days following the killing, he ridicules theprosecution’s theory of the case, noting that “Bob Durst stayed here in Galveston,uh, doing his cool and calculated thing” (lines 305, 306). Then, emphasizing hisperformed incredulity, he states, “I mean let me read the actual words that werespoken on the opening statement. Here’s what was said” (lines 306, 307). He thenrepeats prosecutor Kurt Sistrunk’s description of Durst, and closes his quotationwith the comment, “I’m quoting directly what Mr. Sistrunk said” (lines 310, 311).Ramsey thus marks Sistrunk’s depiction of Durst as acting “very calmly, withouthesitating at all, voluntarily and without panic” (line 308) as objectively ludicrous.He then boldly describes the acts that prompted this characterization:

326 [ ] Then what did he do327 to execute this well-oiled plan, uh, this, th-th-th-this – He stayed here, he328 went – that afternoon he went to the bank, he did a primitive kind of cover-up then,329 in paying Morris’s rent, and his – and then he coolly and calmly, as the State says330 in their opening, went over and got a haircut and room service. Well, if he’s

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331 going to cover something up, why didn’t he just leave town? Why didn’t he just332 take off? Just walk away from it? He’d rented the apartment as Dorothy Ciner.333 None of this makes very much sense. It certainly is not a cool, calculating plan.

Disparagingly prefacing his description with the phrase, “Then what did he do toexecute this well-oiled plan” (lines 326, 327), Ramsey describes Durst’s attentionto detail in obtaining a money order to pay Black’s rent, signing Black’s nameto it and mailing it, so that the landlord would not be alerted to Black’s absencewhen the rent came due, as “a primitive kind of cover-up”(line 328), and continuesto attack the prosecution’s depiction of Durst, adding, “and then he coolly andcalmly, as the State says in their opening, went over and got a haircut and roomservice” (lines 329, 330), as if to imply that Durst’s act in getting his hair cut andeating dinner immediately after leaving Black’s body on the floor of his apartmentcould not reasonably be construed as cold blooded. However, he does not allowthe jury to dwell upon this particular set of images of Durst in the barber chair andat the dinner table, but swiftly shifts gears, asking, “Well, if he’s going to coversomething up, why didn’t he just leave town? Why didn’t he just take off? Justwalk away from it? He’d rented the apartment as Dorothy Ciner” (lines 330–333).Ignoring the twin facts that Durst did leave town four days later and that he didnot have to leave town to conceal his whereabouts, due to his ability to assume afeminine alter ego, Ramsey asserts, “None of this makes very much sense,” andthen reaffirms, “It certainly is not a cool, calculating plan” (line 333).

It’s Corroborated by the Blood Spatter

399 Now, what do we know about Morris Black? And this, the court carefully400 guides you here about why this is all. If Bob had a reasonable belief – could’ve401 – could’ve been something based on reason – when he, when the guy had shot402 the gun twice in the apartment. And by the way, think about how it was that403 we found the bullet hole. And they didn’t find the bullet hole during their404 search of the apartment. Because we knew it was there. We knew where to405 look; it had been patched. Now, good officers, doing a thorough scene search,406 looking for anything, did not find the bullet hole. We found the bullet hole with407 our expert because we knew it was there. Morris Black had discharged that408 weapon twice in the apartment.409 Second – second thing that’s gotta be in Bob’s mind is, that-that Morris is410 unpredictable; we don’t – you-you don’t know what the guy might do next. He’s a411 friend of mine, but he’s volatile. He’s seen him get into scrapes with the volley412 ball players, he’s seen him get into scrapes at the, uh, salad bar, I mean, at the413 buffet line, he’s seen him get in scrapes on the seawall with a guy bigger than him,414 uh, and-and-and to corroborate all that, Morris has told him some of the episodes415 that went before, the things that we proved here, to demonstrate who was the first416 aggressor and whether Bob had reason to believe, look, when he’s turning on you417 with a gun, do you try to grab it and push it away? Of course you do. And that’s


418 the reason that we went to so much trouble, not to blacken Morris Black’s419 memory. He apparently had a loose screw. He apparently had a-a-a problem with420 authority, certainly problems with electric companies and power companies and421 things like that. But also, with kids, with dogs, with the people at the Rose Bird422 Library who had to get a peace bond on him. Problems with UTMV, you heard423 the lady here say it was the worst day of her life when she had to deal with the424 man. Had to have four-point restraints with people that are trying to actually help425 him at UTMV. Is he likely to be the first aggressor? Of course he is. We didn’t426 do that just to take time up. We brought those people here to court to testify to427 you because it tells you something about what the situation was like viewed from428 Bob Durst’s shoes at the time he was called upon to act and did act. That led to429 tragic consequences. It is a simple theory, it is corroborated, by the blood spatter,430 the position of the blood spatter, uh, by both our expert and their expert.

Here Ramsey combines two apparently unrelated pieces of information – Black’sdisruptive public behavior, and the fact that he had twice fired Durst’s gun, as aprank, in Durst’s apartment – to suggest that Black was the “first aggressor,” andthat Durst had reason to fear for his life, in the situation that resulted in Black’sdeath. He thus provides the jury with an explanation that would justify Durst’skilling of Black, while insinuating that the evidence supports this version of theevents.

Initially, he highlights the fact that the evidence that Black had previously shotthe gun in the apartment had not been discovered during the police investigation;rather, it was the Durst defense team which had found the patched hole “becausewe knew it was there” (lines 404, 405). He thus manages to present the bullethole as exculpatory evidence which might not have been produced, but for Durst’sown knowledge of its existence: a narrowly-averted miscarriage of justice. Withthis image hovering in the air, Ramsey quickly shifts to a description of Black’stendency to erupt into tirades of verbal abuse, alluding to a number of incidentswhich had been detailed in the testimony of various witnesses (lines 419–425).However, although none of these incidents involved the use of a gun or otherweapon or any physical injuries to the targets of Black’s abuse, Ramsey ends thislitany with the question, “Is he likely to be the first aggressor?”, which he answers,“Of course he is” (line 425). He then offers the testimony of these witnesses asevidence of “what the situation was like viewed from Bob Durst’s shoes whenhe was called upon to act and did act. That led to tragic consequences” (lines427–429). The clear implication of this argument is that Durst was faced with aman holding a loaded gun and wracked by uncontrollable anger, a situation inwhich there would have been clear reason to fear for his life.

Having constructed this evocative scene out of unrelated pieces of evidence,Ramsey labels it “a simple theory” and – audaciously – claims that it is“corroborated, by the blood spatter, the position of the blood spatter, uh, by both

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our expert and their expert” (lines 429, 430). This argument, although not objectedto, is a clear example of overreaching, for the blood spatter evidence, which theexperts agreed appeared to confirm that Black had been shot in the head (since theblood was Black’s, there were no bullets in the recovered body parts, and Black’shead was never found), provided no evidence regarding what had precipitated theshooting.

It’s Bond Jumping, is What We’re Dealing With

465 Now. [clears throat] Going just a bit further into the actual proof in the466 case. Uh, after Bob left town, after he finally, after four days, got around to467 driving over to New Orleans, to another hideyhole that he had over there, when he468 just [unintelligible]. Uh, he had eight days, seven – depending on how you count,469 seven or eight days in New Orleans, completely away from everything. Nobody470 knows where he is, so what does he do? He goes back to Galveston. What does471 he do? He drives back to Galveston. Well, you – Listen to me. He came back to472 Galveston, after he had gotten completely away. It makes no sense. He is in fact473 engaged in-in fleeing and it’s a pattern you see throughout this case. Run away,474 come back; run away, come back. Same thing with the bags down at the end of475 the pier. Same thing with New York: run away, come back; run away, come back,476 to New York. California: Go there, come back; go there, come back. That’s the477 way the man lived his life. I’ve got no way to justify or excuse that kind of478 conduct. It’s not illegal conduct, until it gets to this point, where it’s illegal to be479 evading the law. It’s bond jumping, is what we’re dealing with here. Ultimately.480 He’s not been arrested yet, but later on, you’ll hear proof that he made a bond and481 hear – we’ll hear arguments that he made a bond and left. So here’s the problem.482 After having gotten clean away, what’d he do? He goes and buys a bow saw – you483 heard that – bought a bow saw, put it in the hatch back of his car, and drives down484 Broadway. Does that make any sense? Goes back to where he has purchased485 glasses in the name of Robert Durst. It doesn’t make any sense. He came back486 here, he says to call a lawyer. It was nine-thirty in the morning when he went to487 the doctor; it was eight forty – nine forty-five when he was arrested. You may488 believe he was here to call a lawyer, you may not believe it. But one thing you489 know for sure is that he had been in New Orleans, because we got the record from490 over there, and he came back to Galveston. You know that for sure.

In this section, Ramsey deals with what is arguably the most unequivocallydamning evidence against his client: the fact that he jumped bond following hisarrest in Galveston, prompting a six-week nationwide search leading to his re-arrest. In order to neutralize this evidence, he weaves it into his theme that noneof Durst’s behavior following the killing makes any sense. He begins by notingthat, when Durst left Galveston four days after disposing of Black’s body, he wentto New Orleans, where he was “completely away from everything” (lines 468,469). He then launches another question-and-answer sequence, “Nobody knows


where he is, so what does he do? He goes back to Galveston” (lines 469, 470).Incredulity building in his voice, he repeats, “What does he do? He drives backto Galveston. Well, you – Listen to me. He came back to Galveston, after he hadgotten completely away” (lines 470–472). His dramatic repetition adumbrates thenow-familiar refrain, “It makes no sense” (line 472).

Having previously argued that his client’s course of conduct following the killingevidenced panic and “an addled attempt at flight to cover up” (line 229), Ramseycontinues to depict Durst as bungling, irrational and lacking in any coherentplan. His argument that Durst’s return to Galveston, apparently to pick up apair of prescription glasses that he had ordered, “makes no sense” is designed toconceal the only possible sense it could make: That Durst, who had cold-bloodedlydismembered and disposed of Black’s body, was confident that he had concealedhis crime, and was not concerned that he might expose himself to arrest by returningto town. However, Ramsey transforms this lack of concern into a pattern of erraticbehavior that “makes no sense,” a pattern that he characterizes by the phrase, “runaway, come back; run away come back” (lines 473, 474), and which he then usesto classify Durst’s original flight from New York, his dumping of Black’s bodyparts, and, finally, the bond jumping itself (lines 473–479), mentioning this criticaldetail as if in passing when he states, of this “pattern” of flight, “It’s not illegalconduct, until it gets to this point, where it’s illegal to be evading the law. It’s bondjumping, is what we’re dealing with” (lines 478, 479).

Ramsey thus appears to squarely address the issue that his client jumped bond,while in fact denying its significance as an index of guilt and instead reassigningit to the default category encapsulated in his theme. He then immediately returnsto the point at which he started, Durst’s return to Galveston, where he repeatsthat thematic phrase, “It doesn’t make any sense” (line 485). By linking Durst’sbail jumping to his return to Galveston, he implies that the one, like the other,is the product of the erratic thought process and irrational behavior that he hasconsistently attributed to his client.

We Can Sell You a Bridge in New York

510 So. Bob ran again. He ran away. Uh, and he was eventually arrested,511 sitting with a chicken salad sandwich, and a newspaper, at a – at aplace near where512 he went to college. With his head shaved and his eyebrows shaved. Now, that’s a513 bizarre story. I said it was bizarre to start with. It’s too bizarre for anybody to514 make up. It certainly is not a plan. A cold, calculating plan to steal someone’s515 identity and commit murder in order to do it. It makes no sense whatsoever. It516 does not hold together. And the State has got to have some kind of cogent theory,517 to make you believe that they have proved that Bob Durst killed Morris Black518 intentionally, knowingly – that means on purpose. And they have said, although

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519 the indictment doesn’t say this, they have said and they’re married to the position.520 He did it as a part of a cool, calculated, well-planned, orchestrated event. Now,521 you believe that – y’know, we can sell you a-a bridge in New York. It just didn’t522 happen that way.

This section marks the dramatic climax of Ramsey’s argument, constructed as ananticlimax that depicts the now-hapless Durst, exposed as a murderer after beingpicked up for shoplifting. “Now, that’s a bizarre story,” Ramsey exclaims, and thenadds, “I said it was bizarre to start with” (lines 512, 513), thus reminding the jurorsthat he has accurately characterized his client’s conduct, while repeating the word“bizarre,” which he then proceeds to use for the third time to execute a subtle shiftin focus, stating that “[i]t’s too bizarre for anybody to make up” (lines 513, 514).Having opened this line of attack, he pounds his point home in a series of rapid-firepropositions, “It certainly is not a plan. A cold, calculating plan to steal someone’sidentity and commit murder in order to do it. It makes no sense whatsoever. It doesnot hold together” (lines 514–516).

In a dazzling display of faulty logic, Ramsey thus manages to imply that Durst’sbizarre behavior following Black’s killing, to which he admits, lends credibility tohis claim of self-defense. Yet – Ramsey’s assured delivery notwithstanding – thestatement is a non sequitur. For while it is true that a person in Durst’s positionmay have lacked the necessary credibility to explain a dead body by a claim ofself-defense, the mere fact that Durst occupied that position does not support theassumption that he acted in self-defense. The fact that something is logical does notmake it true. On the other hand, couching an argument in logical terms will oftengo a long way towards persuading one’s audience (see, e.g.Larson, 1983, p. 14).

Thus Ramsey confidently launches his closing challenge with the phrase, “Andthe State has got to have some kind of cogent theory, to make you believe thatthey have proved that Bob Durst killed Morris Black intentionally, knowingly –that means on purpose” (lines 516–518). After pausing to repeat the prosecution’snow-discredited theme, “He did it as a part of a cool, calculated, well-planned,orchestrated event” (line 520), he delivers thecoupdegrace: “Now, you believe that– y’know, we can sell you a-a bridge in New York. It just didn’t happen that way”(lines 520–522). By this oblique reference to the ancient cliche of “selling [some-one] the Brooklyn Bridge,” Ramsey labels the prosecution as con artists and thosewho would believe them as gullible fools, thus constructing a category in which thejurors should be loathe to place themselves (compareHobbs, 2003a, pp. 287, 288).

Discussion

In a series of insightful analyses of courtroom communicative practices,Bennett(1978, 1979; Bennett & Feldman, 1981) argues that storytelling plays a central


role in the evaluation of evidence at trial: Jurors subjected to a continuousonslaught of often-technical information instinctively attempt to evaluate eachpiece of the puzzle according to its ability to contribute to a coherent narrativeexplanation; and lawyers, anticipating this analysis, use storytelling techniquesto “define the central action and the supporting structure in a way that yields afavorable interpretation” (Bennett, 1979, p. 312). In the ordinary criminal trial,this maneuvering occurs in dingy courtrooms outside the public eye, excitingneither media attention nor public commentary. But what happens when powerfulforces conspire to challenge the story constructed by the publicly-availabledetails?

In the O. J. Simpson murder trial, Simpson’s attorneys succeeded in neutralizingseemingly overwhelming evidence of guilt – including the famous slow-speedchase in which Simpson evaded capture for hours while being followed bypolice as he cruised the Los Angeles freeways – by insinuating that a racially-prejudiced police officer had tampered with the evidence. In the Rodney Kingcase, a sickeningly-brutal police beating of the suspect, captured on videotape,was transformed by the defense’s expert on police practices into a measured,professional response to the victim’s bodily movements; thus, reasonable doubtwas “created by muddying the water with a plausible alternative” (Goodwin, 1994,p. 616). And in the Iran-Contra hearings, what appeared to be a scandal involvingthe violation of federal law prohibiting the furnishing of aid to “terrorist” nations,and implicating the President, the Vice President, several Cabinet membersand the Director of the Central Intelligence Agency (Lynch & Bogen, 1996,pp. 1, 2), was recast as a partisan political dispute “in which an accused hero[Oliver North] was being confronted by a powerful group of bureaucrats”(Ibid, p. 13).

Lynch and Bogen argue that the Iran-Contra hearings present a case studyin deconstruction, in which the search for the truth was derailed by OliverNorth, his attorney, and his allies on the committee, who succeeded in lionizingNorth while deflecting attention from the historical facts that had resulted inthe convening of the hearings (Ibid, pp. 13, 14). In similar fashion, Durst’sdefense team, refusing to be bound by the narrative of the known facts, engagesin an ambitious deconstruction of the evidence, substituting a distorted anddecontextualized version of the facts, and then presenting that version to thejury as evidence of the prosecution’s incompetence. Ramsey’s closing argumentencapsulates this deconstructionist strategy and provides a striking illustrationof Lynch and Bogen’s observation that the use of deconstruction can actuallyconstructthe “irresolute features” of the events in question (1996, p. 5). Moreparticularly, the argument demonstrates the implementation of this strategythrough the use of classic persuasive techniques, including downplaying andintensification.

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DownplayingA lawyerdownplaysthe significance of information that is harmful to his case byraising sham issues that divert attention away from it; by providing excessive orcontradictory details that create confusion; by using euphemistic references to referto it; or by simply failing to mention it (Larson, 1983, pp. 12–14). Ramsey uses eachof these techniques in order to defuse the impact of Durst’s post-killing behaviorand to present an alternative explanation for that behavior that is consistent withthe defense’s claims of accident and self-defense.

Ramsey begins his argument by downplaying the importance of Durst’sdismemberment and disposal of Black’s body, his payment of Black’s rent toconceal his death, and his bail jumping and subsequent flight. Pointing out that thisdamning evidence was “not contested” (line 21), and strongly implying (althoughnot explicitly stating) that its presentation by the prosecution was a waste of time(lines 21–24), Ramsey exhorts the jury to focus on “what happened when MorrisBlack died” rather than going “off down a rabbit trail, relative to gory pictures”(lines 29–31). In so doing, he substitutes the euphemism “uncontested issues” forDurst’sadmissionto a series of acts that were either wrongful or criminal. He thusdiverts the jury’s attention from proven facts which constitute valid circumstantialevidence of Durst’s guilt in order to focus their attention on “what happened whenMorris Black died” – while omitting mention of the fact that they are entitled toconsider Durst’s subsequent conduct in attempting to determine what happenedwhen Black died.

Ramsey then focuses the jury’s attention on a false issue by asking, “Whatreason. . . is there in this case for Bob Durst to have invited Morris Black intohis apartment in order to execute him?” (lines 77, 78), a question that fails toaccount for the fact that a killing that is not planned in advance may neverthelessbe murder. After using this rhetorical question to launch his theme that the claimthat Durst murdered Black “makes no sense” (lines 84, 85), Ramsey meandersthrough a confusing and seemingly disorganized review of the evidence that ispunctuated by bald criticisms of the prosecution (“Does that make any sense atall?” “Have you heard anything here in court which makes you believe this’sbeen cool, calculating?”). The apparently random order in which he addresses theproblematic chain of events which followed Black’s death is calculated to interferewith the jury’s ability to see these events as a coherent story. However, there is oneproblematic aspect of Durst’s behavior that resists recharacterization: the patternof lies that conclusively establish him as unworthy of belief. Yet this problemtoo can apparently be solved by downplaying; thus Ramsey invites the jury to“ take Bob Durst’s testimony out of the case. . . And tell me whether. . . the Statehas proven that it was in fact an intentional, knowing, willing, intentional killing”(lines 180–183).


In arguing that Black was the “first aggressor” in the confrontation that resultedin his death, Ramsey provides a plethora of details concerning incidents in whichBlack had become verbally abusive or threatening, noting that “he apparently hada screw loose. He apparently had a-a-a problem with authority, certainly problemswith electric companies and power companies and things like that. But also, withkids, with dogs, with the people at the Rose Bird Library who had to get a peacebond on him. Problems with the UTMV. . . .Had to have four-point restraints withpeople that are trying to actually help him at UTMV” (lines 419–425). None ofthese incidents involved either a weapon or a threat to Durst, yet Ramsey providesthem as “evidence” that Durst acted in self-defense in killing Black.

In concluding his overview of the evidence with a description of the factssurrounding Durst’s arrest in Pennsylvania, which he aptly characterizes as“bizarre” (lines 510–513), Ramsey diverts the jury’s attention from the evidenceof Durst’s behavior immediately following Black’s death, which suggests extremesof both callousness and presence of mind. His evocation of the image of Durst atthe time of his arrest is designed to supplant the images of Black’s dismemberedbody that attest to Durst’s guilt, and to substitute for the image of Durst asBlack’s killer an image of him at the time of his capture, “sitting with a chickensandwich and a newspaper. . . . With his head shaved and his eyebrows shaved”(lines 511, 512).

Ramsey’s use of downplaying thus acts to shift the focus of the jury’s perspectiveby de-emphasizing the importance of Durst’s dismemberment and disposal ofBlack’s body and payment of Black’s rent, by providing a plausible rationale forsimply disregarding Durst’s lies (rather than considering them as evidence of hisguilt), by suggesting that Black initiated the confrontation that caused his death,and by portraying Durst as too eccentric and inept to have entertained the motivesattributed to him by the prosecution.

IntensificationThe repetition of words and phrases is one of the most widely-used rhetoricalstrategies of the legal profession, and reflects the lawyer’s intuitive understanding,confirmed by empirical research, that repetition positively influences belief (seeRieke & Stuttman, 1990, pp. 204, 205). Repetition acts tointensifythe repeatedinformation (Larson, 1983, pp. 11, 12), making it more salient to listeners:The emphasis that repetition supplies acts to both highlight the information andto encode the lawyer’s evaluation of its significance (Hobbs, 2003c, p. 491).Moreover, it serves as a contextualization cue (Gumperz, 1992) by which lawyerssignal to jurors the keys points they are making, thus inviting them to viewthe evidence in a way that accords with the lawyer’s formulations (Hobbs,2003c, p. 491). Repetition is thus a staple of lawyers’ closing arguments, and

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is encapsulated in the aphorism, “First you tell them, then you tell them whatyou told them, then you tell them that you told them what you told them”(Ibid).

Research on repetition demonstrates that the use of recurrent words andphrases acts to mark a progression where the repetitions are seen to buildupon one another (Norrick, 2000, p. 57). Moreover, the repetition of words andphrases establishes rhythmic patterns which facilitate comprehension and createan experience of emotional involvement through the listener’s participation insense-making (Tannen, 1987, pp. 576, 584).

Ramsey uses repetition to add structure, focus and clarity to his argumentthrough the highlighting of his theme of “common sense.” Thus, every stage ofthe argument is punctuated by the repetition of this thematic mantra. At the outsetof the argument, after posing the rhetorical question, “What. . . reason is there isthis case for Bob Durst to have invited Morris Black into his apartment in orderto execute him?”, Ramsey asks, “Does that make any sense at all?” (lines 78, 79;emphasis added). He then simulates the prosecution’s response: “Now, the Statewill answer, ‘Well, we don’t have to prove plan; we don’t have to prove motive’ ”(lines 79, 80), and then delivers this rejoinder: “But you’ve heard it repeated. . . theimportant part about a case isit’s gottamake someamount of common sense” (lines80–82; emphasis added). He then sounds the chord again: “And. . . the absence ofa motive can provide reasonable doubt just in and of itself. So this casemakes nosenseif you go with the State’s theory” (lines 82–85; emphasis added). Finally, heaffirms, “Andit makes all the sense in theworldthat this is an accidental discharge”(lines 118, 119; emphasis added).

Later in the argument Ramsey turns to a discussion of his client’s repeated lies,which could themselves be interpreted as evidence of consciousness of guilt. Heattempts to forestall this interpretation by telling the jurors to simply disregardDurst’s testimony if they do not believe it, and continues, “And tell me whetheror not. . . the State has proven that it was in fact an intentional, knowing, willing,intentional killing. . . .It makes no common sense. That he would invite a maninto his – apartment, and murder him in his apartment” (lines 181–184; emphasisadded).

Ramsey next addresses a particularly weak point in the prosecution’s theory:that Durst murdered Black in order to “steal his identity.” Ridiculing this notion,he states: “Now does that make any – is thatcommon sense?Does thatmakeany senseto you?What makes sensehere is that there was panic after the event,and an amateurish, impoverished, poor, addled attempt at flight to cover up.That’swhatmakes sense” (lines 227–230; emphasis added). He then admonishes the jury,“You’ve got to use. . . common sensein coming to conclusions in a case like this”(lines 257, 258; emphasis added).


In rebutting the prosecution’s argument that Durst’s post-killing conductprovides evidence of a calculated plan, Ramsey uses this thematic phrase torecalibrate the jury’s view of the events. He begins with the time period immediatelyfollowing the killing, stating, “let me talk about those four days. That Bob Durststayed here in Galveston, uh, doing his cool and calculated thing” (lines 304–306).He then poses a rhetorical question, which he proceeds to answer: “Then what didhe do to execute this well-oiled plan. . . . He stayed here. . . that afternoon he wentto the bank, he did a primitive kind of cover-up then, in paying Morris’s rent, andhis – and then he coolly and calmly, as the State says, went over and got a haircutand room service” (lines 326–330). He then asks, “Well, if he’s going to coversomething up, why doesn’t he just leave town?. . . None of thismakes very muchsense.It is certainly not a cool, calculating plan” (lines 330–333; emphasis added).

Further on in the argument, commenting on Durst’s return to Galveston, whichprecipitated his first arrest, he states, “He came back to Galveston, after he hadgotten completely away.Itmakesno sense” (lines 483, 484; emphasis added). Afterdescribing what he characterizes as a pattern of erratic behavior in which Durstcrisscrossed the country, he resumes his description of Durst’s return to Galveston,asking, “After having gotten clean away, what’d he do? He goes back and buys abow saw. . . put it in the hatch back of his car, and drives down Broadway.Doesthat make any sense?Goes back to where he has purchased glasses in the name ofRobert Durst.It doesn’t make any sense” (lines 482–485).

Finally, commenting upon Durst’s arrest in Pennsylvania for shoplifting, hestates, “Now that’s a bizarre story. . . It certainly is not a plan. A cold, calculatingplan to steal someone’s identity and commit murder in order to do it.It makes nosense whatsoever. It does not hold together. And the State has got to have somekind of cogent theory, to make you believe that they have proved that Bob Durstkilled Morris Black intentionally, knowingly – that means on purpose. . . He didit as part of a cool, calculated, well-planned, orchestrated event” (lines 512–520;emphasis added). He then appends his definitive assessment of thesenselessnessof the prosecution’s theory, “Now, you believe that – y’know, we can sell you a-abridge in New York. It just didn’t happen that way” (lines 522–530).

Ramsey’s use of repetition is a perspicacious strategy which allows him toorganize his argument while avoiding the imposition of a narrative structure.This is a critical issue for the defense, because virtually any narrative that can beconstructed from the known facts either shows Durst in a damning light or is notparticularly believable. As a result, the defense has adopted a strategy of examiningthe evidence in a random, non-chronological order that is designed to make itdifficult for the jurors to form a narrative version of the descriptions presented.However, although this strategy has allowed the defense to take “potshots” at theprosecution by attacking the weak elements of its case while ignoring the massive

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evidence that is suggestive of Durst’s guilt, the danger of this disjointed approach isthat it will be too disorganized to allow the jurors to take anything away with themthat they can use in their deliberations. Ramsey solves this problem by makingItdoesn’t make sensethe unifying theory for the jury to rally around – a strategythat at once dispenses with the need for narrative and assigns responsibility forthe defense’s incoherent version of the case to the prosecution. Thus, the jury isinvited to blame the prosecution for the fact that the casemakes no sense, and tothus conclude that the prosecution has not done its job. Moreover, since the burdenof proof is on the prosecution, if the prosecution has not done its job, then it hasnot met its burden of proof. And thus, as Ramsey argues, “the only verdict that canbe written in the case is a verdict of not guilty” (lines 121, 122).

Creating Unreasonable DoubtA verdict represents a determination of “what happened,” together with anevaluation of what happened that forms the basis for the judgment of the court.Accordingly, the purpose of a trial is not simply to determine the “real” or “official”version of contested events; rather, the central role of the jury is to enforce thelaw’s normative rules. Juries who measure human behavior against legal standardsengage in the process of norm setting (Jonakait, 2003, pp. 72, 73). In a criminaltrial, an essential element in this process is determining whether the defendant’sguilt has been proved “beyond a reasonable doubt” (Kalven & Zeisel, 1966, p. 189).However, although the court instructs the jury on the definition of reasonable doubt,this formulation is merely a guideline, and can never be sufficiently precise thatall would agree on how it should be applied to an agreed-upon set of facts; thus itis up to the jury itself to give the standard a specific content in the context of thefacts that are before it (Jonakait, 2003, p. 73).

In a landmark study of 3,576 actual criminal trials, Kalven and Zeisel (1966)analyzed the results of a survey in which criminal trial judges were mailedquestionnaires asking them to report both the jury’s verdict and what their ownverdict would have been had the case been tried without a jury, and to describeand evaluate the case, the parties, and the lawyers. The overall percentage ofagreement was high: the judges surveyed indicated that they agreed with the jury’sverdict in 75.4% of cases (Ibid, p. 56). Of the remaining 24.6%, 19.1% representedcases in which judge and jury disagreed as to the defendant’s guilt, while 5.5%resulted in a “hung jury” (i.e. the jurors could not reach the required unanimousverdict). Significantly, the cases of judge/jury disagreement were “massively inone direction”: the jury voted to acquit the defendant in 16% of cases in which thejudge would have convicted, but voted to convict in only 3% of cases in which thejudge would have acquitted, thus reifying the jury’s traditional role as “a bulwark ofprotection for the criminal defendant” (Ibid, pp. 58, 59). After noting that the judges


indicated their belief that differential assessment of the trial evidence accounted,in whole or in part, for 79% of these disagreements, the authors hypothesized thatdiffering concepts of “reasonable doubt” were a key factor in accounting for thisdisparity:

If judge and jury, when unaffected by sentiment, make the same credibility responses andyet disagree as to final outcome, and if they do this repeatedly and in the same direction,this disagreement pattern can only be explained by their having different norms as to howlittle doubt should be tolerated before convicting. On this view reasonable doubt is a residualbut indispensable category for the complete explanation of evidence disagreements (Ibid,pp. 112, 184).

Accordingly, after analyzing the judges’ comments and eliminating disagreementsfor which a specific reason (other than disagreement over the standard of reasonabledoubt to be applied) could be assigned, they note that

we are left with a residual 11% of the disagreement spectacularly unamenable to specificexplanation. We would argue that this very difficulty provides in itself a kind of proofthat the reasonable doubt hypothesis is operative. The hypothesis predicts that there will bedisagreements for which there is no explanation other than that the jury takes more generouslythan the judge the law’s admonition not to convict unless guilt is proved beyond a reasonabledoubt (Ibid, p. 187).

The question that remains is, what might cause this disagreement? That is, giventhat jurors’ verdict accorded with the judges’ own assessments in 75.4% of cases– thus strongly indicating that, in those cases, the judge and jury were in essentialagreement as to the standard of “reasonable doubt” to be applied – what accountsfor the divergence in other cases involving the same judges?

Jurors, who are selected essentially at random from the community, and whoreceive no special training in how to conduct their deliberations, must be assumedto apply ordinary or “mundane” reasoning (Pollner, 1987) to the evaluation of theevidence at trial, evaluating it in terms of a “gestalt, or total picture” (Tigar, 1999,p. 7). As Pollner explains:

The assumed compatibility between an event and the content in which it presumablyoccurred. . . allows mundane reasoners to mobilize putative knowledge about the context tocredit, qualify, or discredit claims about what ‘really’ happened. The sources of knowledgeabout context are diverse and range from personal observation to commonsense knowledge ofparticular or typical aspects of social or physical reality. Insofar as they are treated as mattersof fact or likelihood, the specifications of context comprise constraints to which an account of apurportedly real event may be held responsible. Thus, a mundane reasoner, though not witnessto an actual scene, nevertheless has warrantable ways of assessing the extent to which a claimedversion corresponds to what really happened (Ibid., p. 41.).

Thus context is indispensable in assessing the plausibility of recounted events.

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In this case, Durst’s lawyers adopted a strategy of narrowing the “relevant”context to a single event: the confrontation that resulted in Black’s death. In sodoing, they effected a shift in focus that allowed them to use “reasonable doubt”to leverage their argument that the prosecution had not met its burden of proof.Because a case can be made to look much different by isolating “problematic”issues and making them the focus of the jury’s evaluation, this tactic was designedto createunreasonable doubt – doubt that arises, not from an assessment of thetotality of the evidence, but from the skewing of the evidence in a way thatfavors the defendant’s position. An example of the results of such skewing isfound in Hastie and Pennington’s study of the O. J. Simpson trial, in which theyconclude:

[I]t seems plausible that the defense was effective enough to create genuine reasonable doubt.Even with our exposure to incomplete and biased media reports of the evidence, several of thereasonable doubts cited in the jurors’ post-trial interviews were the same issues that had made usdoubt the prosecution’s case: the time interval (approximately six minutes) for Simpson to cleanup, change clothes, and appear at his door to board the airport limousine seemed implausiblyshort; the possibility of some evidence contamination seemed convincing and some of the mostincriminating bloodstains were questionable (1996, p. 976).

In the cited passage, the authors appear to succumb to the temptation, artfullyposed by Simpson’s lawyers, to ignore the considerable evidence of Simpson’sguilt, including, most notably, the (in)famous slow-speed chase, during whichSimpsonheld a gun to his head, repeatedly threatening to kill himself, and tofocus instead on the issues identified by the defense as problematic.

The trial of automobile executive John DeLorean offers an additional example ofdefense efforts to create unreasonable doubt. DeLorean was acquitted of charges ofnarcotics smuggling despite the fact that, prior to trial, a pirated copy of governmentsurveillance tapes showing him inspecting a suitcase filled with cocaine, declaringit to be “better than gold,” and lifting a glass of champagne in a toast to the successof the undertaking, was aired on national television, an event that the trial judgehad predicted would have a “devastating” impact on DeLorean’s right to a fair trial(Lief, Caldwell & Bycel, 1998, pp. 305, 306). However, in his closing argument,DeLorean’s attorney Donald Re adopted strategies (described by Lief et al.) thatare strikingly similar to those used by Ramsey in his closing argument on behalfof Robert Durst:

Re put the FBI and DEA on trial, emphasized their every lie and every embarrassing admissionby the government’s witnesses. . . .

The second part of Re’s overall strategy was somehow to minimize the devastating impact ofthat last videotape, where DeLorean appears to be accepting more than fifty pounds of cocaineas a fait accompli of this complicated dope deal. If the prosecutor’s insistence that the jury lookat the totality of the circumstances prevailed, DeLorean would be convicted. Re therefore had


to become an incrementalist. Re went back to the beginning and painstakingly analyzed everycontact, every meeting, and to the extent possible, explained it away by putting it into a contextmore favorable to DeLorean. By going back to the beginning and chronologically explainingand viewing events from his client’s point of view, Re systematically knocked the prosecution’scase to pieces. . . .

∗ ∗ ∗Finally, the cornerstone of the defense, the mantra of Re’s close, was the repetition ofthe defense’s theory of the case. Early in the argument, Re said. “. . . DeLorean wasmanipulated, DeLorean was maneuvered, DeLorean was conned, John DeLorean is avictim.” Re repeated it over and over, after each segment of his closing argument. Whenthe jurors spoke with the press after the verdict, it became apparent that they agreed (Ibid,pp. 311–313).

The techniques adopted by Re in deconstructing the narrative of the knownevents, while identifying his client as a “victim” of the government’s actions,were designed to shift the focus of the jury’s attention away from the totality of thecircumstances, and to refocus it on issues that were problematic for the prosecution,thus creating unreasonable doubt by skewing the evidence in favor of his client.These same techniques, used by Ramsey in the Durst trial, similarly created theunreasonable doubt that resulted in his acquittal.

Conclusion

The overwhelming majority of criminal cases are disposed of by guilty plea andnever reach trial.1 However, the public is generally unaware of this fact and,as a result, the few cases that actually proceed to trial “bear all the semioticweight” (Tigar, 1999, p. 314). That is, because public perceptions of the criminaljustice system are based primarily on media coverage of these cases, they playa significant role in shaping the public’s ideas about the system (Marder, 1997,p. 476).

Nevertheless, it is clear that the cases that are tried are not representative of thecases that are adjudicated in a number of important respects, the first being simplythat they are not “average.” The average case is resolved by the court’s acceptanceof a guilty plea, or (if it is exceptionally weak) is dismissed and is not adjudicated.The result is that it is only the hard cases that get tried. A case may be hard fora number of reasons: It may be based on purely circumstantial evidence (as inthe Scott Peterson case, involving the murder of his wife and their unborn child),invoke an insanity defense (as in the Andrea Yates case, involving the drowningof her five young children), or involve a defendant who is wealthy (as in the Durst

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case) or famous (O. J. Simpson, William Kennedy Smith). Such cases are oftenthe subject of intense media attention; yet these “high-profile” cases are doublynon-representative, in that they involve unusual issues and do not result in a plea.However, they become paradigm cases of justice and injustice in the public mind;and impressions that the guilty are acquitted or that the innocent are convicted insuch cases undermine public belief in the legitimacy of the law and trust in thelegal system.

Public perceptions of a criminal defendant’s guilt or innocence ordinarily arebased upon information provided to the media by prosecutor’s offices, defenseattorneys, and the families and friends of the defendant and victim(s). However, inaddition to the fact that information obtained from such sources may be biased orinaccurate, it is frequently accompanied by media speculation about the guilt orinnocence of the defendant that implicitly invites the consumer of this informationto take sides. Thus anyone who has ever participated in a discussion of a high-profile case will agree that most people have formed an opinion of the defendant’sguilt or innocence prior to trial.

The pretrial media coverage of the Robert Durst case painted a lurid portraitof an eccentric millionaire who had left New York following the reopening ofthe investigation into the unexplained disappearance of his wife in 1982; whohad traveled to Galveston, Texas, where, dressed as a woman and “borrowing”the identity of a female high school classmate, he rented a shabby $300-a-monthapartment; and who, accused of killing his neighbor Morris Black, choppinghis body into pieces and dumping the pieces into Galveston Bay, had beenarrested, had posted bail and then fled, resulting in a six-week nationwide search.Thus when Durst’s defense team announced at a March 27, 2002 hearing thatDurst would claim self-defense and accident in the killing, theNew York DailyNewsnoted skeptically that “[t]he defense lawyers left untouched a weaknessin the trial strategy: If the Manhattan real estate heir killed Morris Black inself-defense, why would he cut up the man’s body and chuck the parts into a bay?”(Williams & Ingrassia, 2002). Following the verdict, CNN legal analyst JeffreyToobin, who characterized the case as “a very strong case” for the prosecution,elaborated:

But there is so much evidence in this case of what lawyers call consciousness of guilt andflight, the issue of him jumping bail, the issue of him trying to escape is just so damaging tomost defendants. Plus, remember, the whole reason he came to Texas was that he was undersuspicion for murdering his wife in New York, and then decided to dress up as a deaf, mutewoman to escape the scrutiny. I mean, this thing sounds like a bad novel (CNN, 2003).

It is doubtful that many consumers of the media reports of the case would disagree.However, the jurors, unlike the public, were asked to choose between the publicly-


disseminated version of the case, as presented by the prosecution, and the radically-different interpretation of essentially the same facts presented by the defense – aninterpretation that discarded as irrelevant the damning evidence of Durst’s post-killing behavior, leaving nothing but an unexplained shooting. And an unexplainedshooting coupled with the defendant’s testimony that he acted in self-defensesurely must be conceded to raise a reasonable doubt as to whether a murder wascommitted. Yet acts decoupled from their context will always seem unexplained,and, indeed, will be unexplainable, for it is context that supplies the “why” thatis an essential element of “what happened” (comparePollner, 1987, p. 41).

Bennett argues that jurors make sense of the evidence presented at trial byshaping the information to form a narrative of the relevant events, and that lawyers,aware of power of narrative to transmit understanding, strive to organize thetestimony and evidence “into a form that facilitates its eventual transformationinto a story” (1979, p. 312). However, while it is true that lawyers overwhelminglyemploy this strategy – a strategy which, as Bennett points out, most people learnin early childhood, when we are encouraged to tell “our side” of disputed events(1978, p. 5) – in a small but significant minority of cases there simply do notappear to be “two sides,” since all of the relevant facts point resolutely to a singleconclusion.

Countless thousands of such cases are resolved by guilty pleas, but in a fewthe defendant’s wealth or position precludes such facile capitulation. And in afair number of such cases, lawyers who require a six- or even seven-figure retainerachieve “shocking” acquittals, exciting consternation not unmixed with awe. Theseare the cases of supermarket tabloids, of made-for-television movies, and of judges’and practitioners’ compilations of “famous trials.” Such cases amaze and titillatebecause their outcomes seem contrary to fact, logic, and justice, and often resultin criticism of lawyers and juries alike. Yet the outrage that is mobilized by suchverdicts is not merely the result of disagreement with their outcome, but stemsfrom a pervasive feeling that the jurors have ignored the evidence in reaching theirverdict. Accordingly, what this paper has attempted to demonstrate is the processby which such an outcome may be achieved.

It is hoped that this paper will contribute to the scholarly discussion of thissubject and will stimulate additional research.

NOTE

1. For example, according to the United States Department of Justice, an estimated54,590 cases were filed in state courts in the nation’s 75 largest counties in May, 2000. Ofthose that were adjudicated within one year of arrest, 94% were disposed of by guilty plea(Rainville & Reaves, 2003, p. 24, Table 23).

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ACKNOWLEDGMENTS

An earlier version of this paper was presented at the annual meeting of the Law andSociety Association, Chicago, Illinois, May 2004. I am grateful to Austin Saratand the anonymous reviewers for their helpful comments and suggestions.

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