Sometimes life imitates art. Other times art intimidates life. That seemed to be the case with the HBO documentary series The Jinx: The Life and Deaths of Robert Durst, which, over the course of a decade, tracked the shady past of the New York City real estate scion, in particular the trail of deaths that seemed to follow him. The final episode of The Jinx contained a shocking revelation: Durst, after an on-camera interview with filmmaker Andrew Jarecki, wandered into a hotel bathroom still wearing his microphone and made what sounded like a full confession. The shock was compounded by real-life events. The day before the finale was set to air, the FBI arrested Durst in New Orleans for the murder of Susan Berman, a friend of his who was killed in Los Angeles in 2000.
In a media landscape transfixed by artfully told true-crime stories (The Jinx comes on the heels of NPR’s wildly popular Serial podcast), the show’s presentation of its case against Durst — not to mention the timing of Durst’s arrest — raised a host of questions regarding the lines between entertainment and jurisprudence, chain of custody, and the legal responsibilities of documentary journalists. The Jinx navigated this thicket with the help of Victor A. Kovner, a partner at Davis Wright Tremaine with a long history of providing pre-print or pre-broadcast review to media outlets (including, from the mid-1960s until the mid-2000s, the Village Voice).
Kovner came to The Jinx as a result of his ongoing association with Jarecki and his filmmaking partner Marc Smerling, who were also responsible for documentaries like Capturing the Friedmans and Catfish.
“I’ve been working on the Durst project for ten years,” Kovner tells the Voice. “I started working with them on a movie about him which could have been a documentary but instead became a docudrama.” That film, All Good Things, which starred Ryan Gosling in a thinly veiled retelling of the Durst story, was released in 2010. “Though it was fictional,” Kovner says, “these journalists, these documentarians, are very careful. They had backup on everything. There are different standards, of course. A docudrama, which doesn’t have real names, has different standards. But they had done their homework.”
But even homework couldn’t have prepared Jarecki and Smerling for what they discovered during the course of The Jinx. First Berman’s stepson unearthed a letter that seemed to implicate Durst in her murder. Mailed to Berman a year before her death, it shared certain key characteristics (handwriting, one telling misspelling) with the so-called Cadaver letter that alerted California authorities to the presence of Berman’s corpse in her apartment. And then came Durst’s hot-mic confession.
The filmmakers’ success in advancing the case against Durst led to speculation regarding their responsibilities in handling evidence. When did they first hear the confession? Did they alert law enforcement immediately?
Kovner says the facts are clear. “The final interview was conducted in April of 2012,” he says. “The washroom confession — or the talking to himself after the video, as the audio kept going — was not discovered until June 2014 and was made available to law enforcement shortly after.”
Kovner also dismisses the notion that there was any deal struck between law enforcement and filmmakers to schedule the arrest for maximum publicity. Rather, he says, the authorities operated independently, though they may well have factored in the possibility that the airing of the final episode would force Durst’s hand.
“It came as a shock to the producers and to me that he was arrested on the morning before the airing of the final program,” Kovner says. “The probability of flight risk was evident and law enforcement obviously knew that.”
Since Durst’s arrest, police in other jurisdictions have begun to look into whether he might be connected to more crimes, including the 1971 disappearance of a Middlebury College student. Kovner says the relationship between the filmmakers and new law enforcement efforts is “complicated.”
“They are entitled to assert journalistic privilege, both state and federal,” he explains. “As to material they have not turned over, they are not obligated. In saying that, of course, I don’t want to suggest that my clients either do or do not have any information. But it’s fair to say they focused for some time on the disappearance of Kathleen McCormack and later Susan Berman.” (Durst married Kathleen “Kathie” McCormack in 1973. She was last seen alive on January 31, 1982.)
Kovner has been advising journalists for a half-century, and he says that while evolving technologies have recast the relationship between journalists and audiences, the legal foundation remains the same.
“In reviewing an article for publication, while the means of communication online may have altered, the basic rules have not changed as to what’s actionable or what kind of support is necessary.” He also says that he is not pessimistic regarding the effects of the shifting media landscape — the growth of social media, the pressure to get to stories more and more quickly. “It’s hard to predict how things will change,” he says, “but I would hope that the kind of care shown by these filmmakers would encourage other journalists to do the same.”