Don DeGabrielle is a former New Orleans prosecutor, FBI agent and U.S. Attorney for the Western District of Texas, and he’s the expert millionaire Robert Durst wants to scrutinize the search of his hotel room that led to federal gun charges that have landed Durst in jail.
But federal prosecutors in New Orleans say that DeGabrielle has a conflict of interest: While he was U.S. Attorney, DeGabrielle once refused to charge Durst with federal gun charges after Durst beat a murder case in state court.
Durst’s legal team will be hard-pressed to beat the federal charges Durst faces, after FBI agents found a loaded .38-caliber pistol in his room at the J.W. Marriott Hotel on Canal Street.
Durst was acquitted of murder charges in the 2004 shooting death of his Galveston neighbor, Morris Black, but was convicted of skipping bail and tampering with evidence when he dismembered Black’s body and dumped the pieces in Galveston Bay.
Durst’s lawyers are trying to get U.S. District Judge Helen Berrigan to throw out evidence from the hotel room search, which took place the day before the finale of the HBO documentary “The Jinx,” which chronicled the Black murder trial, the investigation of the murder of Durst’s friend, Susan Berman, in 2000, and the disappearance of Durst’s wife, Kathie.
Los Angeles prosecutors in March charged Durst in Berman’s death. He was arrested in New Orleans, where [he] faces federal [gun] charges, because his felony convictions on the bail-skipping and evidence tampering charges bar him from possessing a firearm.
To help challenge the legality of the search that turned up the .38, Durst’s lawyers have hired DeGabrielle, who is now in private practice in Texas, as an expert witness on search warrants and practices. Berrigan this week ruled that DeGabrielle could testify for the defense in a hearing on the search.
Prosecutors Thursday filed a motion asking the judge to reconsider, noting for the first time that DeGabrielle told reporters for a Galveston newspaper that he did not charge Durst with federal weapons charges for lying on federal forms when he purchased the gun used to kill Black.
Detectives in Galveston pushed DeGabrielle’s office to charge the millionaire after Durst was acquitted of killing Black, noting that Durst testified during the murder trial that he was a habitual user of marijuana.
In 2001, when Durst went to a Pasadena gun shop to buy the the Ruger P4 with which he shot Black, Durst filled out forms from the ATF and ticked the “No” box for the question that asked if he was an “unlawful user of, or addicted to, marijuana, or any depressant, stimulant, or narcotic drug, or other controlled substance.”
In 2006, as the statute of limitations neared to file charges for lying on the form, and other related counts, the Galveston County Daily News reported the newly appointed DeGabrielle saying that he would not pursue charges because prosecutors in the office had told Durst’s lawyers in 2004 that Durst wouldn’t be charged, according to copies of news articles submitted by prosecutors.
The articles attached with the filing don’t contain direct quotes from DeGabrielle, only paraphrases, but his “extrajudicial comments” to the newspaper create a conflict for DeGabrielle should he be allowed to testify in Durst’s present case.
“Those comments and his involvement in the decision to refrain from prosecuting Durst create an appearance of bias that should disqualify DeGabrielle from now profiting as an expert in the instant prosecution,” wrote Assistant U.S. Attorney Myles Rainer.
DeGabrielle did not immediately return messages from NOLA.com | The Times-Picayune. Dick DeGuerin, Durst’s Texas-based defense attorney, was not immediately available for comment.
In 2006, DeGuerin said federal prosecutors in Texas told him in 2004 that the chose not to charge Durst because they thought the gun case “was chickens—.” DeGuerin was not immediately available for comment Thursday, his secretary said.
By Andy Grimm (Times-Picayune)