Matthew T. Mangino: When is a confession not a confession?
About 15 years ago in Winter Haven, Florida, Thomas Roe Oldt, a columnist for the local paper, The Ledger, wrote about the quick and unlikely arrest of two teenagers accused of murder.
The teens apparently bragged about the killing. Winter Haven Police Chief David Romaine told Oldt, “The criminal element likes to brag about what happened and what they did to make themselves higher in the food chain with their peers.”
Criminals boast, and that often leads to their downfall. However, that doesn’t explain what happened this week in the highly charged case of Robert Durst, the heir to a New York real estate fortune.
The HBO series “The Jinx” is based on filmmaker Andrew Jarecki’s examination of the life of Durst, a key suspect in a series of unsolved murders. In the season finale, Durst walked away from the set to use the bathroom wearing a microphone. While in the bathroom by himself he mumbled, “What the hell did I do? Killed them all, of course.”
The statement was recorded. The episode was broadcasted. Durst was arrested.
Unlike the Winter Haven teenagers, Durst wasn’t bragging, he was talking to himself. Therein begins the legal rumblings that will set the stage for yet another made for TV trial.
Will Durst’s mutterings be admissible at trial? To start, the statement is hearsay. A statement made outside of court is normally not admissible. But there are exceptions to the hearsay rule. A statement against interest by a party to the proceeding, in this case the defendant, is admissible.
However, was the statement against Durst’s interest? Here we need some context and there is no one to provide it. Durst was talking to himself. Did he mean, “now that I spoke on camera, everyone is going to think ‘I killed them all.’” Did he really mean he killed them all; and who is included in “all”—the statement is not specific. Talking out loud to one’s self is not a conversation — but rather an exploration of thoughts, ideas or even fears.
How about the constitutional issues? The filmmakers admitted that they had been cooperating with the police. Were the filmmakers working as an instrument of the state and trying to coax a confession out of Durst?
A court-ordered suppression of a confession is primarily to address police misconduct. Here the filmmakers had no obligation to warn Durst that he had the right to remain silent or have an attorney present — the iconic Miranda warnings we recognize from television crime dramas. Even if the filmmakers were acting on behalf of the police, those warnings only apply to a custodial interrogation — in other words, Durst would have been subject to questioning and would not have been free to leave. That was not the case.
The U.S. Supreme Court has long interpreted the Fourth Amendment to require law enforcement to get a warrant when eavesdropping on a suspect who has a reasonable expectation of privacy. In 1967, the Supreme Court said a bookie had a reasonable expectation of privacy while inside a telephone booth. The court tossed out the surreptitious recording of his bookmaking.
If the filmmakers had become an instrument of law enforcement, then the police would need a warrant to record Durst in the bathroom, because he has a reasonable expectation of privacy. However, Durst had a microphone on, and was warned in the past that the microphone was recording even when not in front of the camera. That fact diminishes his expectation of privacy.
When Durst was arrested at his New Orleans home, police found marijuana and a gun. He was arraigned on those charges as well. If the court ultimately says that the recorded statement is not admissible and his arrest unlawful, could the drug and gun charge also be gone? Maybe, there is a theory in the law that any evidence illegally obtained with an invalid search warrant or arrest warrant may be suppressed as “fruit of the poisonous tree.”
The issues are many and the potential twists and turns would thrill any television news executive. And, don’t forget, Durst’s high priced legal team already got him acquitted of a homicide that he admitted. Stay tuned.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.