Essays

Reconsidering The Jinx as Robert Durst Goes on Trial

Robert Durst will soon be tried for murder in part because of HBO’s true crime series about him. What does it mean if the fact that the documentary was misleadingly edited impacts the verdict?

Lead subject Robert Durst and director Andrew Jarecki making The Jinx (courtesy HBO)

All the hand-wringing over the final season of Game of Thrones has shed a handy light on the “tyranny of the WTF moment.” I’m not a Game-r — most of the images I’ve seen from the ultra-popular fantasy show have been GIFs on Twitter — but as a documentary filmmaker and editor, I find value in vigorous discussion around narrative, audience expectations, and the demands of the pop culture grinder. That people could get so mad about the big twist mentality of the show’s writers on such a mass scale is fascinating, and maybe even a little hopeful if you care about thoughtful, complex storytelling. But for all the real emotional investment it garnered over its run, Game of Thrones remains fiction. The consequences of the filmmaking choices that sealed the characters’ fates will forever be safely contained in a fully constructed world.

The same can’t be said for another (albeit smaller-scale) pop culture spectacle from HBO that was forged in a similar WTF fire: Andrew Jarecki and Marc Smerling’s The Jinx: The Life and Deaths of Robert Durst. Airing in 2015, this six-episode documentary investigation into the case of New York real estate billionaire and accused murderer / confirmed dismemberer Robert Durst quickly became appointment viewing. After its undeniably jaw-dropping ending, in which Durst seemed to confess on a hot mic that he’d “killed them all,” The Jinx won two Emmys, a Peabody, found itself being compared to The Act of Killing, and was celebrated for potentially solving a murder case. And then the filmmakers’ methods were more thoroughly scrutinized, which prompted a debate about documentary ethics. In the series’ wake, a slew of true crime shows were greenlit, leading to a boom we’re still in. Now, as Durst is set to go to trial for the murder of his friend Susan Berman, the editing of the film’s shocking conclusion will also be on trial, and documentary filmmaking may never be the same.

The last scene of The Jinx’s finale episode “What the Hell Did I Do?” is an all-timer. After burping his way into a corner in response to some damning evidence presented to him by series director Jarceki, Durst excuses himself to the bathroom. The episode cuts to a shot from a perfectly placed surveillance camera near the ceiling. We watch the crew break down their equipment and the lights go out as Durst delivers a monologue into a lavalier microphone that was apparently left on:

There it is.
You’re caught. You’re right, of course.
But you can’t imagine.
Arrest him. I don’t know what’s in the house.
Oh, I want this. What a disaster.
He was right. I was wrong.
And the burping. I’m having difficulty with the question.
What the hell did I do?
Killed them all, of course.

Boom. Documentary gold. This is like the end of The Thin Blue Line on steroids. A confession from the evil rich man who dismembered one of his victims and somehow evaded justice! The problem, as revealed by a portion of the original recording’s transcript published in the New York Times, is that the scene was heavily edited.

The raw transcript reads:

[Unintelligible] I don’t know what you expected to get. I don’t know what’s in the house. Oh, I want this. Killed them all, of course.

[Unintelligible] I want to do something new. There’s nothing new about that.

[Inaudible — possibly “disaster.”] He was right. I was wrong. The burping. I’m having difficulty with the question. What the hell did I do?

The audio of the staggering rant was rearranged so that the series could end on the gotcha sledgehammer “Killed them all, of course.” And now Durst’s lawyers may use this to help get him off the hook.

Editing is not a crime, of course. “Journalists have to shape narrative,” said NPR’s David Folkenflik when discussing the controversy. “You’re not simply laying out the raw materials of your notebooks and your microphone and your tapes and simply saying to the listeners and the viewers and the readers, hey you go figure it out.” He’s right, obviously, and even if you don’t consider nonfiction films or series “journalism” in a strict sense, then you at least have to acknowledge the long debate around editing and documentary reality. Nonfiction material always gets edited. This is not in dispute, and this is not the reason what’s happening with The Jinx is so troubling.

When the currently dominant “WTF moment” storytelling mindset meets documentary footage, shit gets bad real fast. This issue is not exclusive to The Jinx. The blockbuster Netflix series Making a Murderer, which could be considered the peacock-iest progeny of The Jinx, has faced its own controversy and legal issues stemming from its WTF storytelling style. Nonfiction movies are complex combinations of the uncontrollable serendipity of reality and the subjective structural choices of the filmmakers. But if we make decisions to manipulate materials in the hopes of being rewarded by a fickle, cynical market, we might end up breaking the tether to reality that may be the only thin line between what counts as “documentary” and what counts as “fiction.” As Dirk Eitzen points out in his crucial “When is a documentary?” essay, documentaries might best be defined as media that forces us the ask the question “Might it be lying?”

With that last scene, The Jinx might just be lying.

Imagine a version of the The Jinx that ends another way. All plays out exactly as we see it now, but instead of the heavily manipulated monologue that aired, we get the raw material as it was apparently recorded:

Garble garble I don’t know what you expected to get.
I don’t know what’s in the house.
Oh, I want this.
Killed them all, of course.
Garble garble I want to do something new. There’s nothing new about that.
Garble garble disaster garble
He was right. I was wrong.
The burping. I’m having difficulty with the question.
What the hell did I do?

It’s messy and haunting and real. Rather than a WTF statement, the series ends on a set of exhilarating questions. Is this about him admitting he murdered Susan Berman, or is he struggling with his decision to even participate in the documentary? What is the “this” that he wants? Who was “right”? Are the filmmakers complicit in giving him “something new,” or did they just crack the crime of the century? Did he just confess? What the hell did he do?

Robert Durst in The Jinx (courtesy HBO)

Maybe the filmmakers and HBO executives learned a lesson from Serial, the popular true crime podcast that had ended a few months prior with questions rather than answers, pissing off many of its millions of listeners. But why couldn’t they let Durst’s mutterings play as recorded? It would have been mysterious and shocking, the scene would still be discussed as one of the greatest endings ever, and it most likely wouldn’t threaten the series’ very credibility as a documentary.

“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,” series editor Zach Stuart-Pontier told the New York Times. “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.”

It seems, then, that the answer is the same as why Game of Thrones threw so many unmotivated twists into its final season: It was tidier and more dramatic, and the thirsty market demands maximum drama. And now, because The Jinx is a primary reason Durst is even facing a new trial, his defense is likely to use that editing choice as evidence that the filmmakers were part of some vast conspiracy to set him up.

Documentary film has gone on trial before, and we’re still dealing with the aftermath. The truth is that filmmakers often play both sides. We claim to be journalists when we need access or rights, and we call ourselves artists when we get called out for any number of subjective decisions we make, such as shaping stories or presenting characters as we see fit. This is a hustle, and it’s not entirely defensible, but it might be the lifeblood of what we do. We capture or find real footage and manipulate it into something coherent and hopefully meaningful. The results can be cynical, boring, or excitingly resonant, but that work depends on our ability to straddle the lines between observer and storyteller. This, for better or worse, is our craft.

But what happens to documentary filmmaking if Robert Durst is found innocent of killing Susan Berman partly thanks to credibility issues that have come up because of The Jinx’s editing? Will the perception that all documentaries are in fact “lying” breed cynicism about what we do? Or maybe it could be a valuable lesson in media literacy if the public finally gets a high-profile reason to question everything they see. No matter what happens, I can’t help but feel like my own choices as a filmmaker are on trial too. If I had found Durst’s explosive raw audio and was editing under an HBO deadline and had the chance to create a splash, would I have surrendered to the same WTF mentality? Or would I have let it be messy, let it linger, let the raw noise of reality guide the moment over what was more sensational? Would Durst be on trial now if authenticity had won the day?

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