There are a lot of advantages to hiring a defense attorney
to conduct a parallel
investigation of a murder of a member of one's own
family, parallel that is, to a police investigation which might, in due course, come to consider one a suspect in the crime.
One might make disclosures to an attorney that were highly incriminating and yet because of the privilege accorded to attorney/client communications,
those incriminating disclosures might never come to light in court.
If, as in this case, the defense attorney were to hire very competent former police detectives to conduct this parallel investigation, as has been
done, these investigators might flush out all manner of awkward facts about the case, facts that, in due course, the police themselves might
Having knowledge of these facts as early as possible would enable a defense attorney to craft a well thought out response to whatever evidence the
police might eventually present in court.
In addition to this, a defense attorney, considering the sorts of things his own investigators have told him that the police are likely to discover on
their own, might want to limit police access to his clients, access that the police might assume, on the face of it, at the beginning of a case, to be
reasonable and without malice intended, but which might be the occasion of some costly pratfall by the defense attorney's client.
The most sticky point of all is the case where the parallel investigation because of its privileged access, and disclosures obtained under
attorney/client privilege, actually obtains evidence in the case which is not turned up by the police investigation and then withholds that
evidence, thereby preventing the police from conducting a successful investigation.
The legal rules on this situation are, no doubt, thoroughly understood by the Sherman family attorney, Brian Greenspan.
The Toronto newspapers have not, in print, considered this sort thing. I'm certain that people in the various newsrooms have hashed it over among
The business of withholding evidence, under attorney/client privilege by a private investigator came into the investigation of the disappearance of
Kathie Durst, as told in Andrew Jarecki's documentary film, The Jinx: the Life and Deaths of Robert Durst
There was also the feeding of false information to the press, information known to the Durst family and to the police and believed at that time, by
the police certainly, by the family perhaps, to be true.
This was the notion that Kathie Durst was seen after her last known meeting with her husband, in South Salem, N.Y., the night of her disappearance. It
was reported in the press that she had been seen by a doorman, returning to a penthouse apartment in New York City, occupied by her and her husband,
whom she had left at the house in South Salem earlier in the evening.
The police detective involved in the case at that time believed that this "fact" (subsequently proven to be untrue) had been leaked to the press by
someone inside the Durst family circle, since the information was known to the Durst family and to the police but to noone else. The detective
speculated that Susan Berman, a friend of Robert Durst had been the person who leaked this false piece of exculpatory information to the press on
behalf of Robert Durst to help relieve press pressure on him.
The matter is discussed at 9:58 of the following linked video:
Closer to home, the Sherman family has expressed concerns about police interaction with the press, specifically the information, "from police sources"
that the police impression of the scene where the bodies of Barry and Honey Sherman were found, was of a murder/suicide, an assumption universally
rejected by members of the Sherman family and friends of the deceased couple.
The Mayor of Toronto, John Tory
, has spoken to the police about the Sherman family's concerns.
"Most of the mayor's conversation with the Sherman family involved him expressing condolences. The family did raise a concern that they were
seeing information in the media before it was communicated to them by police," Mr. Peat said in an e-mail.
"The mayor conveyed those concerns to Toronto Police. He conveyed those concerns dispassionately and did not make any requests of police, but simply
relayed their concerns about communication of information, similar to what he would do when other families he contacts have concerns with police or
The police might well view this intervention by the mayor as political pressure and also as an attempt by the family to move close to the
Of course the family has the right to be kept abreast of developments in the investigation. There is nothing unusual about that and nothing about
their request, in itself, that indicates any special leverage coming from them.
However it is also potentially problematic if the police decide that a person or persons within the family are possible suspects in a case of murder.
Statements made by the police to the press can sometimes be of a strategic nature, designed to influence the behavior of a suspect. The Sherman family
shouldn't have input on that sort of thing.
I'm not faulting the mayor, or the family in this matter. I'm simply pointing out that we are right up against an area of concern.
Incidentally, I wrote this last night and I notice in this morning's Toronto Star, a story reporting that questions have been raised about the mayor's
meeting with the police.
Tory’s actions fall within a grey area of the Police Services Act, which governs all board members, said former police services board chair Alok
What Tory did for the Sherman family “creates the impression that a prominent family has special access to policing services,” said Mukherjee, who
retired from the Police Services Board in 2015, and became a visiting professor at Ryerson University’s department of criminology and office of
equity, diversity and inclusion.
“Whether this is true or not does not matter. Not every family or person has the ability to get the city’s mayor to be their spokesperson on a
At 9:37 of the following linked video, former NYPD detective Michael Struk, who was working the Kathie Durst case received a phone call from Robert
Durst's lawyer, defense attorney
Nick Scoppetta, requesting that all further communications from the police go through him. Struk described the
call as "the classical lawyering up".
"If you've got nothing to hide and you dropped your wife off at the train station, why would you go out and hire a criminal defense
was how Kathie Durst's brother, Jim McCormack, put it.