THE WAR ON DRUGS COULDN'T PUT DURST IN JAIL

Only one thing stands between Robert Durst and prosecution that could
send him to federal prison, possibly for decades. That one thing is
the U.S. Attorney's Office in Houston.

That office, which exists to enforce federal laws in this part of the
world, has for more than a year had compelling evidence that Durst
committed three felonies when he bought the pistol with which he
killed his elderly island neighbor, Morris Black.

For more than a year, a Galveston police officer has been prodding
federal prosecutors to seek charges against Durst in what that
officer called a "slam dunk" case. U.S. Rep. Ron Paul's office
recently joined the effort.

But Donald J. DeGabrielle Jr., U.S. attorney for the Southern
District of Texas, said Wednesday his office wouldn't act because of
a conversation in 2004 between a prosecutor and Durst's defense
attorney, Dick DeGuerin.

The situation provides an interesting window into how the federal
justice system works for people who can afford top-shelf defense
counsel. It raises questions about the utility of a federal firearms
law with which all Americans must comply when exercising their Second
Amendment rights to own and bear arms. And it calls into question the
commitment of two of the state's most powerful politicians to
enforcing laws meant to keep guns away from addicts and habitual drug users.

Ruger No. 223-51668

It is illegal in this country for a drug addict or habitual drug user
to possess a handgun. Durst, the millionaire heir to a New York real
estate fortune, is known to have possessed several.

One of those, a Ruger P4, fired the .22-caliber bullet that killed
Morris Black. Charged with murder in Black's death, Durst testified
the killing was accidental; a jury agreed and voted to acquit.

Durst was convicted of evidence tampering after admitting he used a
bow saw and paring knife to cut Black into six pieces, five of which
were found wrapped in plastic garbage bags floating in Galveston Bay.

Black's head, into which that .22-caliber bullet was fired, has never
been found.

During his trial, Durst testified numerous times and partly in his
own defense that he was a habitual marijuana user. He said he'd used
the illegal drug "essentially daily" since the mid-1960s. He called
it a "lifelong addiction or friend or whatever."

ATF Form 4473

If that's true, as Durst swore it was, he has committed at least
three federal firearms felonies, says Sgt. Cody Cazalas of the
Galveston Police Department.

Cazalas argues that Durst committed one federal crime punishable by
up to 10 years in prison when he answered "no" to question 9e on ATF
form 4473, which asks:

"Are you an unlawful user of, or addicted to, marijuana, or any
depressant, stimulant, or narcotic drug, or other controlled substance?"

People who answer "yes" to that question cannot legally purchase or
possess a firearm. People who lie commit a felony.

Durst answered "no" to that question and signed his name to a
statement certifying he understood that lying about it was a felony.

Cazalas said he believes Durst committed a second felony by lying
about his address on the same form. A conviction for that crime
carries a maximum sentence of five years in prison.

Durst committed a third federal felony, Cazalas argues, by actually
possessing the Ruger P4 he lied to obtain, the one that killed Black.
That charge carries another possible 10-year sentence.

Cazalas says that for more than a year he urged federal prosecutors
to act but got nowhere.

He asked U.S. Sen. John Cornyn for help. He got a letter in reply
saying that the senator couldn't interfere in the judicial process,
as if prodding a presidential appointee to enforce federal laws were
the same as urging prosecutors to back off a chum.

He got no reply from U.S. Sen. Kay Bailey Hutchison, a Galveston
County native who claims to hold people here close to her heart. Only
Paul's office made inquiries.

By His Own Words

But why would the U.S. attorney's office even need prodding, much
less ignore it, when armed with Durst's own sworn testimony that he
was a habitual drug user and an addict, and his signature certifying
the contrary?

DeGabrielle, who inherited the Houston office and the Durst issue in
March, said that in 2004 a prosecutor told DeGuerin his client would
not be prosecuted for firearms crimes he might have committed in the
Southern District of Texas in 2001.

Durst bought the P4 that killed Black on Aug. 30, 2001, at Carter's
Country in Pasadena.

In 2004, Durst was considering a plea deal offered by federal
prosecutors in the Eastern District of Pennsylvania. He had been
arrested there after skipping bail on the murder charge and assuming
Black's identity.

The P4 had turned up in a Galveston trashcan, shortly after the five
larger pieces of Black had turned up in Galveston Bay, but Durst was
armed with a 9mm pistol.

He pleaded guilty to interstate transportation of a firearm and
possession of a firearm by a fugitive from justice and interstate
transportation of firearm by a person under felony indictment.

He received nine months in prison and two years supervised release.

Unethical Or Trivial?

DeGabrielle said the prosecutor made the agreement with DeGuerin as a
matter of judicial economy since Durst already was being prosecuted
on federal firearms charges in Pennsylvania.

He said he didn't know, but doubted that agreement was part of the
formal plea deal Durst struck with federal prosecutors in Pennsylvania.

Despite that, he said it would be unethical for his office to seek charges now.

DeGuerin has a different recollection. He said there was never any
agreement, formal or otherwise. He said he got the impression during
that 2004 conversation that prosecutors in the Houston office thought
the case over the P4 was "chickenshit."

"I got the impression they thought it was chickenshit of Cody Cazalas
to push for more prosecution after losing at trial fair and square,"
DeGuerin said Wednesday.

Relevant Conduct

Whatever the U.S. attorney's office had in mind in 2004, the
conversation was unfortunate. Unlike the Pennsylvania charges, trying
the case of the P4 could have introduced issues of what's called
"relevant conduct" in the federal criminal justice system.

In Pennsylvania, Durst was merely a fugitive from justice illegally
armed with a 9mm pistol. Here, he could have been tried for illegally
obtaining and possessing a firearm that was used to end a human life.

A judge then might have felt at liberty to impose years, perhaps
decades, of prison time, rather than nine months.

Take A Rest

DeGuerin on Wednesday had a message for Cody Cazalas. "Tell Cody to
take a rest," he said. "Surely there's something else that would
better serve his attention, something more current."

DeGuerin might have a point, but for several things. One is Durst's
behavior after his trial. He has twice violated terms of his state
parole. He did so once by going to The Galleria shopping center in Houston.

State Judge Susan Criss, who presided over the murder trial, saw him there.

He violated it again in December 2005 by lurking outside the house of
a woman who had testified against him in the murder trial. She lives
near where Black was killed and dismembered.

The state Board of Pardons and Paroles gave Durst 60 days in a
private facility for that violation.

In June, another prosecution witness saw him in the neighborhood
around 81st Street where Black's remains were found floating -- after
Durst dumped them, wrapped like garbage -- in the bay.

That trip was not a violation of his parole, because the terms of it
had changed. His attorneys argued that those terms should never have
included restrictions on where he went because he was not convicted
of a violent crime.

Tampering with evidence is not a violent crime, even when it entails
butchering a human body. The state attorney general agreed. So Durst
is free to travel where he likes so long as it's in Texas and he
keeps in touch with his parole officer.

Fear Factor

But Robert Durst scares some people. Perhaps they have overly vivid
imaginations. Perhaps they think about things they shouldn't, like
what sort of person can loop a bow saw around a human leg, for
example, and work it back and fourth through the cooling flesh until
the limb comes free.

Perhaps they dwell too much in the past on such things as the odd
disappearance of Durst's wife, Kathleen.

Perhaps they think too much about his former friend and alibi witness
in that case who wound up dead from a bullet in her brain. Durst
never has been directly implicated in that execution-style killing.

Whatever is wrong with those people, they seem to be afraid. Cazalas
says he worries. He says the witness who lives near 81st Street is
afraid to let his children out of the house. Relatives of Durst's
missing wife worry.

Perhaps the fearful will take comfort in the fact that the U.S.
attorney's ethics are intact, even if their peace of mind is not.

Michael A. Smith is associate editor of The Daily News.