Cohen’s Special Master Case Reporter
April, 2017
Reporting on
The Increasing Use of Special Masters
– A Monthly Synopsis of Selected Cases –
SPECIAL MASTER FAST FACT
Fans of “true crime television” may recall a six-part HBO documentary that aired in 2015 called “The Jinx: The Life and Deaths of Robert Durst.” Durst is a Manhattan real estate heir worth over $100 million. The HBO program addresses the deaths of three people close to Durst: (1) his first wife, Kathie, who disappeared in 1982 and was finally declared dead this month (35 years later); (2) a long-time friend, Susan Berman, a Las Vegas gangster’s daughter who was shot execution-style in her home in 2000; and (3) a Texas neighbor, who was shot in the face in 2001. Durst’s own family believes he was behind all three deaths.
Indeed, Durst was tried for premeditated murder after he admitted he dismembered his neighbor in 2001 with a saw and axe, and then dumped the remains in Galveston Bay. He insisted the shooting was an accident, however, and the dismemberment a scared reaction; he was acquitted. Five years later, Durst’s family (which co-owns One World Trade Center) paid Durst $65 million in exchange for cutting all ties to the family trusts.
During “The Jinx,” which won two Emmy Awards, film-makers presented evidence suggesting that: (i) Durst’s friend, Berman, who had served as Durst’s spokesperson when his wife Kathie disappeared, knew what happened; and (ii) after New York police re-opened their investigation in 2000 into Kathie’s death, Durst felt he needed to silence Berman. Toward the end of the documentary, the film-makers showed Durst a letter they recently found, written years ago by Durst to Berman. It had handwriting and mis-spellings identical to those in an anonymous note sent by Berman’s killer to Beverly Hills police. As the final episode ended, Durst went into the bathroom, forgetting his microphone was still live. It recorded him saying: “There it is. You’re caught. What the hell did I do? Killed them all, of course.”
After the HBO program aired, Durst was arrested for Berman’s murder. He is currently awaiting trial in Los Angeles; Durst’s defense attorney, Dick DeGuerin, is the same one who obtained his Texas acquittal. DeGuerin recently argued that 60 boxes of documents the police seized from the hotel room where Durst was arrested, from his home, and from a friend’s storage unit, contain attorney-client privileged materials. Prosecutors responded Durst waived any privilege by giving the HBO film-makers access to all of the documents during taping. The trial judge appointed a Special Master to review the documents and determine which, if any, are privileged.
Durst’s trial is expected to begin in late 2017. In addition to the documents the Special Master is examining, other evidentiary issues abound. The trial court will have to decide whether jurors will learn: (1) Durst’s mother committed suicide when he was a child (Durst claims his father forced him to look at his mother’s body, still lying on the roof of their house); (2) as a young man Durst owned seven dogs, all Malamutes named Igor, all of which died mysteriously; (3) when arrested for his Texas neighbor’s death, Durst was living in disguise as a mute woman; (4) when Durst was arrested in 2001 for shoplifting bandaids and a hoagie, he had $38,000 cash in his car; (5) in 2014, Durst was arrested for, but acquitted of, trespassing while armed, stalking his younger brother; (6) Durst pled no contest in 2014 to urinating on a rack of candy in a Houston CVS drugstore; (7) Durst now claims he was high on marijuana and meth- amphetamine during his appearance on “The Jinx;” and (8) Kathie’s family recently filed a $100 million lawsuit against Durst for her disappearance.
Your Reporter will not predict any evidentiary rulings or the jurors’ ultimate verdict, but promises readers this: huge media coverage in coming months will reveal occurrences even more weird than the catalog listed above.
Robert and Kathie Durst at their wedding, with Igor – one of seven dogs who died mysteriously.
Kathie and Robert Durst
shortly before she disappeared.
Kathie was declared dead this month,
35 years after she went missing.
Durst with murdered friend, Susan Berman.
Berman was killed shortly after she told Durst
she was being asked about Kathie’s death.
Durst reenacting in court his gun struggle
with neighbor Morris Black, whom he
admitted dismembering;
Durst was acquitted of murder.
Durst’s attorney Dick DeGuerin, holding a
bowsaw found in Durst’s car after Durst
dismembered Morris Black.
Durst will be tried for Berman’s murder in
Los Angeles later this year.
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ARTICLES (click to read)
“A Neutral Force in the Special Cases,” an article about me, was recently published in the Case Western Reserve University Law School Magazine.
“The Judge, The Special Master, and You,” an article I wrote, was featured in Litigation Magazine, published by the American Bar Association.
“Special Masters versus Magistrate Judges: No Contest,” an article I wrote, was featured in The Federal Lawyer 73 (Sept. 2014), published by the Federal Bar Association.
FEDERAL CASES
– Moore v. Tangipahoa Parish School Bd., 843 F.3d 198 (5th Cir. Dec. 6, 2016) (in this school desegregation case, where a Special Master is overseeing enforcement of a court order, holding the lower court did not abuse its discretion in increasing the Master’s compensation).
– Ohio Valley Envtl. Coal. v. Fola Coal Co., 2017 WL 35726 (4th Cir. Jan. 4, 2017) (in this action bought under the Clean Water Act, affirming the lower court’s permanent injunction to prevent unlawful discharges, and the appointment of a Special Master to monitor compliance).
– Patsy’s Italian Rest., Inc. v. Patsy’s Inc., 2017 WL 219094 (2nd Cir. Jan. 19, 2017) (in litigation between two restaurants sharing the same name, affirming the district court’s adoption of the recommendation of the Special Master concerning cross-contempt motions).
– Fisher v. Tucson Unified School Dist., 2016 WL 7438409 (D. Az. Dec. 27, 2016) (in this post-settlement action concerning oversight of the Tucson Unified School District, adopting the recommendation of the Special Master regarding development of teacher-mentors).
– In re Natural Gas Royalties Qui Tam Litig., 2017 WL 35710 (10th Cir. Jan. 4, 2017) (relying on a Special Master’s report and affirming an award of attorney fees against a Relator, after Relator filed several frivolous qui tam actions under the False Claims Act, claiming that natural gas companies underpaid royalties on gas extracted from federally owned or Indian lands).
– Stukenberg v. Abbott, 2017 WL 74371 (S.D. Tx. Jan. 9, 2017) (entering an interim order adopting the recommendations of two Special Masters concerning Texas’s programs for children in foster care, and directing the parties and the Special Masters to gather additional information to inform subsequent proceedings).
– Sequoia Financial Solutions, Inc. v. Stewart, 2017 WL 104283 (E.D. Mich. Jan. 11, 2017) (where defendant failed to make mortgage payments, granting default judgment and appointing a Special Master to oversee public sale of the property).
– Ala. Aircraft Indus. v. Boeing Corp., 2017 WL 131569 (N.D. Ala. Jan. 13, 2017) (in this discovery dispute between aircraft manufacturers, adopting the report of the Special Master and granting in part a motion to compel, subject to in camera review of documents claimed as privileged).
– Supreme Oil Co. v. Mass Polymers Corp., 2017 WL 214180 (D. N.J. Jan. 17, 2017) (after granting summary judgment to the counterclaimant in a contract case, appointing a Special Master to determine attorneys fees, based on tasks reasonably related to the counterclaim).
– Hostetler v. Johnson Controls, Inc., 2017 WL 359852 (N.D. Ind. Jan. 25, 2017) (in this putative class action based on alleged environmental contamination, appointing a Special Master to resolve all discovery disputes).
STATE CASES
– In re Ralston, 2016 WL 7175226 (Ga. Dec. 8, 2016) (in this attorney disciplinary action concerning the misuse of earned-but-undisbursed fees in an IOLTA account, adopting the recommendation of the Special Master for imposition of a public reprimand).
– Standard General L.P. v. Charney, 2016 WL 7212303 (Del. Dec. 9, 2016) (adopting the Special Master’s recommendation regarding search terms to be used in electronic discovery, in a case connected to American Apparel’s bankruptcy).
– In re Eddings, 2016 WL 7337079 (Ga. Dec. 15, 2016) (after an attorney’s wife and office manager stole $2.3 million in client funds to prop up her failing coffee store business, adopting the recommendation of the Special Master and imposing a public reprimand).
– In re Marriage of Rose, 2016 WL 7437759 (Wis. Dec. 21, 2016) (affirming the lower court’s denial of a petition to modify the terms of a marriage settlement agreement by removing the Special Master).
– Halfacre v. Kelley, 2017 Ark. 3 (Ark. Jan. 12, 2017) (in this prisoners’ rights litigation, adopting the findings of the Special Master concerning the filing practices of a circuit court clerk for indigent filers and admonishing those practices).
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David R. Cohen
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