As Durst Murder Case Goes Forward, HBO’s Film Will Also Be on Trial

To understand why Robert A. Durst, the peculiar real estate scion long suspected in several murders, is now charged with killing his close friend Susan Berman 19 years ago, look no further than the 2015 HBO documentary about his life.

On the last of six episodes, the producers of “The Jinx: The Life and Deaths of Robert Durst” presented Mr. Durst with an envelope he had addressed. The handwriting looked identical to that on the anonymous note that had alerted authorities to the presence of Ms. Berman’s body in her Beverly Hills home. On both, the word “Beverly” was misspelled “Beverley.”

Then, the episode ended with Mr. Durst muttering to himself, perhaps confessing, as he marched off to the bathroom, still wearing his microphone from the interview.

“What the hell did I do?”

“Killed them all, of course.”

Viewers were left stunned. The documentary went on to win huge ratings, a Peabody and two Emmys.

But it turns out Mr. Durst’s remarks were significantly edited; rather than being consecutive, the two sentences had been plucked from among the 20 in his rambling remarks, and presented out of order.

Mr. Durst’s lawyers are now preparing to cite those edits — they’ll call them manipulations — in an effort to cripple his prosecution as they get ready for a trial set to begin in a few months in California. They are planning to call the documentary filmmakers as witnesses and to suggest that they cooperated so closely with the police that they became, in effect, “agents for law enforcement.”

So even though it’s Mr. Durst who is facing a possible prison term, the documentarians — Andrew Jarecki, Marc Smerling and Zac Stuart-Pontier — will also be scrutinized as their decision-making is challenged by the defense at trial.

The filmmakers defend their edits as being entirely representative of what Mr. Durst said. But other documentarians, like Mark J. Harris, an Academy Award-winning filmmaker and professor at the University of Southern California, who once taught Mr. Smerling, have questioned it.

“The editing is problematic,” Mr. Harris said. “They put those lines together in a way that’s very damning. But it is definitely more ambiguous in the transcript.”

True crime documentaries like “Thin Blue Line” (1988), have a long history of working to free the unjustly accused. Much rarer have been those that, like “The Jinx,” were at least partially responsible for putting people in jail. In the Durst case, the investigators in Los Angeles did not so much work off leads suggested by the documentary as build their case atop the evidence unearthed by the series itself. (Lifetime’s recent documentary “Surviving R. Kelly” also presented a compelling argument for that singer’s prosecution, and was followed by his arrest.)

Susan D. Murray, an associate professor of media, culture and communication at New York University, credits “The Jinx” with triggering a recent burst of true crime documentaries. “The Jinx,” she said, “has all the elements of documentaries, but it also has the sensational aspect of reality TV unfolding before you.”

And seldom has there been a more compelling subject than Mr. Durst who, at 76 and with a net worth of $100 million, has spent the last few years in a Los Angeles jail cell. Long alienated from his family, which built a real estate empire in New York City, Mr. Durst has also long been suspected of having murdered his wife, Kathie, who vanished in 1982, though he was never charged. Ms. Berman, one of Mr. Durst’s best friends, was at his side through most of it, often acting as his spokeswoman.

In 2000, when Ms. Berman turned up dead, shot in the back of the head, Mr. Durst was also suspected, but he was not initially charged. He was living in Texas at the time. He had moved there from New York, taking up residence in Galveston and posing as a mute woman after the authorities in Westchester reopened the investigation into his wife’s disappearance. Investigators now contend that during this period, Mr. Durst stole away to California and killed Ms. Berman because he was concerned his old friend would incriminate him in his wife’s death.

Ten months later, he was back in the spotlight when parts of his Texas neighbor’s body turned up in Galveston Bay. Mr. Durst was charged with murdering Morris Black and gave a gruesome account at trial of carving up the body. But he said his gun had gone off accidentally as he grappled with Mr. Black in self-defense. The jury acquitted him in 2003.

These tawdry details, and the psychological complexities that surround them, are the core of “The Jinx,” which was 10 years in the making. Working from a Madison Avenue office, Mr. Jarecki and Mr. Smerling built a library of documents, court records, interviews and newspaper articles, all of it cross-indexed and annotated. The material became the subject of a 2010 feature film by the duo, a somewhat fictionalized version of Mr. Durst’s life, “All Good Things,” that starred Kirsten Dunst as Kathie and Ryan Gosling as Mr. Durst.

Just before the premiere, out of the blue, Mr. Durst contacted Mr. Jarecki. They discussed the possibility of a lengthy interview and Mr. Jarecki arranged for Mr. Durst to have a private screening of “All Good Things.” Mr. Durst was impressed, even though the film implicated him in three murders. He liked that it portrayed him as someone who had been buffeted by an aggressive father. “The movie, I did think,” he said in a 2010 interview with me, “is as reasonably accurate as anything out there.”

Soon — over the objections of his lawyer — he had agreed to be interviewed by the filmmakers and sat for three days of filming. He admitted, for the first time, that he had lied to the police investigating his wife’s disappearance. He described the fractured state of their marriage before she vanished.

“By 1981,” he told the filmmakers, “our life was half arguments, fighting, slapping, pushing, wrestling.”

“It deteriorated from there on.”

But he did not acknowledge a role in any crimes.

It took the producers another 16 months to coax Mr. Durst into sitting down for a second, final interview in April 2012 in a hotel room. By this time they had discovered the envelope with the similar handwriting and misspelling. They confronted Mr. Durst with the envelope and the note that alerted authorities to Ms. Berman’s body. He looked nervous, but denied he had written the so-called “cadaver note.”

When the interview was over, Mr. Durst asked to use the restroom, where for seven or so minutes he talked to himself. As aired, his soliloquy ended with, “Killed them all, of course,” though that’s not the order in which Mr. Durst actually spoke the words.

The final episode aired on March 15, 2015. Mr. Durst had been arrested just the night before and as a reporter who had long covered the case, I was invited by Mr. Jarecki to join a group of about 30 people at his Upper East Side home to watch the show. The group included Jeanine Pirro, the former Westchester County district attorney who had reopened the investigation into Kathie Durst’s disappearance; Rosie O’Donnell; Diane Sawyer and members of Kathie’s family.

The living room went silent after Mr. Durst’s chilling words aired. Then some of Kathie’s family began quietly weeping. An indignant Ms. O’Donnell quickly demanded, “How could they possibly withhold this information for so long?”

That question would reverberate in the days to follow, as journalists and other documentary filmmakers debated it in the press. By law, the filmmakers had not been bound to turn over their material to the authorities. But didn’t they have a moral responsibility to see justice done?

The filmmakers said that, for two years, they had not been aware that Mr. Durst had been recorded in the bathroom. The audio was not attached to video that they reviewed in creating the documentary.

Mr. Durst’s defense team has argued that the filmmakers and the investigators coordinated their timing, arresting Mr. Durst as the final episode aired as part of a publicity stunt to boost HBO viewership.

“We’re here today,” Mr. Durst’s lawyer, Dick De Guerin, said in a recent interview, “because the purpose of the producers of the “The Jinx” was to win an Emmy, not to actually document Bob’s story. This is show business. It’s not a documentary.”

But the investigators, who arrested Mr. Durst in New Orleans, where he was traveling under an alias, said the timing was purely a coincidence. They had been tracking him, watching him stockpile cash and feared he was getting ready to flee the country.

The filmmakers have been wary about discussing “The Jinx” because they expect to be called as witnesses, according to their lawyer, Victor Kovner. But in past interviews with me in 2014 and 2015 they have discussed how they tried to balance their role as independent journalists with their obligation as citizens to come forward with the evidence.

They initially met with the lead prosecutor on the Berman case, John Lewin, in 2013, a year after they had finished interviewing Mr. Durst, they said. They ultimately provided investigators with the raw footage of the Durst interviews and the envelope from Mr. Durst where his handwriting resembles that on the so-called “cadaver note.” Mr. Lewin, who specializes in cold cases, then bolstered his investigation with additional evidence, including dozens of his own interviews with Mr. Durst and others.

The filmmakers say it was not until 2014 that they discovered Mr. Durst’s bathroom remarks and then alerted Mr. Lewin to the additional audio material.

Mr. Durst’s defense team is now seeking to have all of the evidence compiled by the filmmakers thrown out.

In bringing his case, Mr. Lewin was careful to use a transcript of the actual raw audio from Mr. Durst, not the edited version that was used in the documentary. Several defense lawyers said they thought the raw audio was likely to be admissible as evidence. But they predicted the defense would be careful to screen jurors to eliminate any who just couldn’t shake what they had heard on TV.

“How many jurors saw ‘The Jinx’ and remember the final lines?” said Ben Brafman, a criminal defense lawyer in New York. “It’s very prejudicial.”

Beyond the courtroom, the discussion among documentarians is likely to focus on the question of just what is allowed in such editing. Every filmmaker, or reporter for that matter, edits interviews for clarity and brevity.

“It’s not deceptive as long as it doesn’t misrepresent what the person says,” said Rick Goldsmith, co-director of the 2009 documentary, “The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers.’’ “It’s effective storytelling.”

In Mr. Durst’s case, he began his bathroom soliloquy with perhaps his most damning statement: “There it is, you’re caught.” The filmmakers say they never intended for the last two lines they aired to be read as a question followed by an answer.

“We put the line ‘killed them all’ at the very end of the last episode to end the series on a dramatic note, not to link it to any other line,” said Mr. Stuart-Pontier. “It didn’t occur to us that other journalists would connect it with ‘What the hell did I do?’ There are actually 10 seconds between the two lines, and I think the experiences of reading it and hearing it are very different.”

Documentarians, including Mr. Goldsmith, generally admired the work done on “The Jinx.” But he said the editing of the final sequence left him queasy. “I was uncomfortable with that one part of the edit,” he said.

Marcia Rock, director of news and documentaries at New York University’s Carter Journalism Institute said: “We all edit, we all take things out.”

“The test is,” she continued, “is it still the truth, or are you manipulating the truth?”