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Bob Garfield: Last week, saw the bombshell finale of the  HBO documentary series, “The Jinx,” director Andrew Jarecki’s inquiry into three probable murders and their elusive suspect, Robert Durst. Spoiler alert: the next few minutes will reveal more than some may wish to hear -- beginning with the climax to end all climaxes. It was the film’s subject, in a bathroom, unaware he was being recorded, apparently….confessing.

clip: durst: “What the hell did I do…(groaning)...Killed them all, of course.

“What the hell did I do?”  Durst muttered. “Killed them all of course.” It was a stunning denouement to six episodes of some truly gripping television -- what one commentator called “the true crime series we’ve all been waiting for.” Even before it aired on Monday, Durst, the squirrely New York real estate heir, was under arrest for murder. But soon the search for deception and manipulation shifted from the film’s subject to the filmmakers themselves.

Much has been made of the final confrontation between Jarecki and his subject, when  Durst is asked to compare a note he wrote to one of the murder victims with an anonymous letter sent to the Beverly Hills police. They are in identical block letters, and both add an extraneous “e” to Beverley -- and Durst knows the implications.

clip:

Durst: I mean, the writing looks similar and the spelling is the same, so I can see the conclusion the cops would draw. Or what the [burp] writing exemplar person would con[burp]clude that they were both written by the same person.

That breathtaking moment is triumphant partly because the filmmakers have spent much of the final episode struggling -- on-camera -- to get Durst to sit in for that final interview. Then providentially, Durst calls them at his lawyer’s behest. They’re seeking some raw footage that might help Durst beat a charge of stalking his hated younger brother. And Jarecki thinks he’s regained the upper hand.

clip:

Jarecki: They’re saying: Bob, if you don’t want to go to jail, and you want to have a good defense here, you need Jarecki and Smerling to give you the defense! Obviously gives us a lot of leverage.

Thing is, the “leverage”, Durst’s arrest for violating a restraining order,  took place more than a year after the crucial interview -- that is, after Durst faced the damning evidence and wandered obliviously to the men’s room in a cold sweat with a hot mic. And what of the  months that elapsed before the producers informed police of the apparently incriminating letter? And the two years that elapsed before they claim to have accidentally discovered the accidental bathroom bonanza? And yet, Durst’s arrest came propitiously on the eve of the finale. Hmm. By Tuesday, the filmmakers had cancelled scheduled media interviews, and also declined our request to appear, explaining that they don’t want to interfere with the ongoing prosecution. But the issues of documentary ethics do not begin nor end with “The Jinx.”  

Joe Berlinger, with his late collaborator Bruce Sinofsky, directed a previous HBO true-crime documentary, the acclaimed “Paradise Lost” trilogy. It also chronicled three murders, the gruesome 1993 killings of three little boys in what was thought to be a Satanic ritual. The trilogy ultimately secured the release of three West Memphis Arkansas young men wrongfully convicted of the crime. Berlinger says that the pressure is constantly on filmmakers to wring out the maximum drama and suspense from inherently confusing events.

Joe Berlinger: You know when you do things like stylized recreations of gruesome events for the participants who lived them, when you put yourself on camera as many filmmakers do, as the crusading investigator, you know I get notes from networks all the time about upping the entertainment value, upping the suspense, and you know real life doesn't naturally fit a conventional dramatic arc, and we as makers of this kind of work are under increasing pressure to conform to the conventions of scripted television. That doesn't mean it's wrong, it just makes it a very interesting time for documentary.

Bob Garfield: And it's the very techniques, the ones you just enumerated, that inflate the drama but also upon any reflection, would tend to diminish trust in the filmmakers themselves.

Joe Berlinger: I think there's a larger issue here. First of all, I believe that all filmmaking, all media, is inherently subjective. Just the process of whittling your footage down is a series of decisions. How you choose to frame your shot. Low angles suggest one thing, high angles suggest another.

Bob Garfield: In fact, in Paradise Lost, there's this one moment when you captured the stepfather of one of the victims, a guy who is a part-time clergyman, and there's a shadow of one of the pieces of I think of recording equipment, on his forehead, that looks very much like a pentagram. And you know, it's to gasp, to see that. Especially as the story plays out.

Joe Berlinger: Well, I mean that was a true found moment. It was around Christmas Time, they were putting a miniature Christmas tree on the grave of their newly deceased son, and because of the angle of the sun, and the angle of the head of that stepfather, it reversed the image of the star that was on top of the Christmas tree, to being an upside-down star, which is what a Satanic pentagram is. It was a chilling moment to observe, and a chilling moment in the film.

Bob Garfield: You style of filmmaking is to simply let the camera do the talking. You have no audio narration, every now and then, you insert a title card to set a time and a place, a little bit of context. Especially when there's been quite a bit of elapsed time. But you do show up in the film "Paradise Lost." That is in the form of a conversation about a possible murder weapon is being examined in court and the source of the murder weapon was you guys.

Joe Berlinger: At the grave of the deceased's son of one of the stepfathers, we were given a knife by him, as a present, which was an unusual present to give, you know, on Christmas Eve. And when we went back to our hotel room, we opened that knife up and there was blood in the hinge, and it was a serrated knife, and these children had multiple stab wounds on them that were consistent with a serrated knife, and so we were confronted with a serious ethical dilemma, you know. Was this a potentially a piece of evidence? What do we do? Do we violate this relationship that we have with our subject by turning this knife over? What would that mean for the film? We felt that if we turned this knife over, it would undoubtedly shut the film down, because the filmmaker/ subject relationship is so important in gaining and maintaining access, that we felt that this would really be the death knell of our project. Within 24 hours, we were back in New York, meeting with various executives, and legal representatives at HBO, and collectively we made the decision that good citizenship trumps any filmmaking need, that doing the right thing was more important than our film project, and that if we came into possession of a potential piece of evidence, we had a moral obligation to turn it over.

Bob Garfield: And yet, the filming continued, you took your project to fruition, and then in two subsequent installments. How did the fact that you became a participant in the investigation alter the filmmaking process?

Joe Berlinger: The first film was purely an exercise in cinema, you know, we came to film a story as it was unfolding. And because we thought we had witnessed this incredible miscarriage of justice, we assumed that the first film was going to have a major impact on the case, and when the film was ignored by the authorities, and the outcry was ignored by the authorities in Arkansas, we thought we had a duty to make a second and a third film, and that's when we passed from, I think, neutral filmmakers, to advocates, and the second and third films are I think pieces of advocacy, where the first film I think is a piece of journalism, and that's the difference.

Bob Garfield: How much directorial license have you to fiddle with sequence, of chronology, and to exclude certain complicating facts in order to make the story more understandable, more seamless, and more powerful?

Joe Berlinger: Any documentary is a compression of time, you know, presenting a six-week murder trial in "Paradise Lost" in a two-and-a-half hour film, is a compression of time, which is by definition a manipulation of chronology. That's a given, but what is not acceptable in my opinion is overtly telling an audience that something happened on this date, when in fact it happened on another date. And so, it's a delicate dance, but that's the difference between a good documentary and a bad documentary. There's a fine line between exploitation and investigation, and you always have to be aware not to tip in to the exploitation part of the equation.

Bob Garfield: We've discussed the scene where the star on the top of the Christmas tree at the grave site, cast a shadow of a pentagram, on the head of one of the grieving step-parents. And an hour and a half later, you come to realize that, holy moly, I think this guy might be killer. Did you withhold anything from the audience? For the sake of the ensuing drama?

Joe Berlinger: If you're asking me, do documentarians and do I selectively withhold information until the right dramatic moment, the answer is yes. Because you can't present every moment at the moment it happens, because mathematically you can't show your entire story at one moment. There is a thing called running time of a movie that you have to fill. You have to thread the needle in such a way that you keep your audience, and that you have an unfolding narrative. I mean that's called filmmaking.

Bob Garfield: So on the subject of unfolding narrative, when Andrew Jarecki unfolded the probably incriminating evidence of a Robert Durst penned envelope next to an apparently Robert Durst-penned letter to the Beverly Hills police, which would have made him in his own words, the only possible killer. That happened a couple of years earlier than we were perhaps lead to believe. Did that, as a filmmaker, make you squeamish?

Joe Berlinger: Good question. I am not in favor of giving false information to an audience, for obvious reasons. But I am OK with holding off giving information until the right dramatic moment, because that is the nature of storytelling.

Bob Garfield: If I haven't misheard you, there is a structural conflict between the role of a documentarian to seek truth, and his responsibilities as a filmmaker, to spin out the most compelling narrative. Is it possible to do both to the utmost at the same time?

Joe Berlinger: A documentarian must be committed to a truthful presentation of the facts. But, in my book, emotional truthfulness is a valid form of truthfulness. You want to give the emotional truth of a situation. Chronology gets manipulated by the act of filmmaking. It doesn't mean you can overtly manipulate chronology. A documentary needs to have balance, but it doesn't mean you need to put every fact, and to counterpoint every fact, because then the film would be endless. It's a series of decisions. And what I think what separates good documentaries from bad documentaries is finding that balance between truthfulness and storytelling.

Bob Garfield: Joe, thank you very much.

Joe Berlinger: Thanks for having me.

Bob Garfield: Joe Berlinger is a filmmaker most recently of "Whitey: The United States of America vs. James Bulger."