Could Robert Durst Get the Death Penalty?

Robert Durst, the millionaire real estate heir, appeared in court again on Tuesday in New Orleans on gun and marijuana charges, and it appears that he’ll be extradited to California. He was arrested on a warrant for the 2000 murder of his friend, author Susan Berman.

The Los Angeles County District Attorney’s Office has said that the charge against the 71-year-old could make him eligible for the death penalty. The case is still under a Los Angeles Police Department investigation.

Durst was the subject of HBO documentary “The Jinx.” The last of six parts aired on Sunday, revealing footage in which Durst whispered to himself: “What the hell did I do? Killed them all, of course.” He’s been connected to several deaths and disappearances throughout his life, including the 1982 disappearance of his wife Kathleen Durst after she divorced him.

What’s the likelihood of Durst getting the death penalty should be convicted of capital murder?

Pretty slim, says Jeff Swartz, a professor of criminal law at Western Michigan University Cooley Law School.

The jury will have to show an “aggravating circumstance” in the multiple murders that took place, he says. An aggravating circumstance is a factor that increases the severity or culpability of a criminal act–in this case, murder. It includes the heinousness of the crime, the defendant’s lack of remorse, and prior conviction of another crime.

However, he says the death penalty is unlikely given Durst’s circumstances.

“The death penalty does not make any sense, because of his age and wealth, which will delay any execution for decades. Because of his ability to attack any conviction both directly and collaterally,” Swartz adds. 

Another expert also thinks it’s unlikely that Durst will get the death penalty.

“It is unlikely that Robert Durst will get the death penalty because his attorneys, when faced with mounting evidence against him, will likely use an insanity defense. Then, though he would probably still get convicted, the jury would not go so far as to give him the death penalty,” said Carole Lieberman, a board certified forensic psychiatrist and expert witness, via email.

On Tuesday, authorities said they found nearly 150 grams of marijuana and a revolver in Durst’s hotel room. And a law enforcement official said his Sunday arrest on the murder charge was based on words he wrote.

Analysis linking a letter Durst wrote to his friend Susan Berman a year before her killing with one he said “only the killer could have written” to point police to her body was the key new evidence in the long-dormant investigation into the 2000 killing, the official not authorized to speak publicly told The Associated Press on the condition of anonymity because the investigation was ongoing.

Durst waived extradition in New Orleans, but authorities there charged him late Monday with being a felon in possession of a gun because he had a revolver when he was arrested there Saturday. Assistant District Mark Burton said they found the pot and gun in his hotel room.

It was not clear how soon he would be returned to California.

Attorney Dick DeGuerin said he wants a hearing in Louisiana as soon as possible to contest the arrest.

“The warrant we believe is based on a television show and not on actual fact,” he said. “We want a hearing as quickly as possible so Mr. Durst can go to California and face trial as quickly as possible.”

The Associated Press contributed to this report.

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