In HBO’s riveting documentary “The Jinx,” the filmmakers are seen wrestling with how to handle damning evidence they’ve uncovered about millionaire Robert Durst in the course of their research. Do they turn it over to the police? Or do they keep quiet and risk the chance a suspected murderer may escape justice?

For most journalists, it’s an easy choice. A reporter always wants to avoid any appearance of working hand-in-hand with cops. It’s not the role of a journalist to act as an investigatory arm of law enforcement. It’s essential for journalists to preserve their independence and not try to second-guess the impact of their work, until it is made public.

Of course, there are gray areas. And the Durst filmmakers were stomping all over the gray areas, as they wrestled with their film. They were dealing with someone they believed was a murderer. He was also a rich murderer who had already shown a willingness to don disguises and run from the law. And they also knew that their actions could inadvertently impact the investigation, making it even harder to convict a guilty man.

In a round of interviews after the final episode aired — and Durst had been arrested, –filmmakers Andrew Jarecki and Marc Smerling said detectives had reviewed key parts of the series “months” before it aired. Jarecki is shown in the series stashing the so-called “cadaver” letter, a key piece of evidence, in a safe deposit box. But the filmmakers were clearly afraid their silence could have repercussions and chose to let detectives see at least parts of the series before it aired.

Jarecki told the New York Times:

“We need to be careful about how much we describe about the details of the case, so what we’ll say about that is we provided the relevant evidence to law enforcement some months ago, and it’s been in their court. And obviously they’ve got their own timetable for how to address it.”

Once the series started to air, the filmmakers confronted a new set of fears, Jarecki said. They weren’t sure how Durst, a man they believed was capable of murder, was going to react to the series.

From the interview with The Times:

“We were obviously glad that they made the arrest. We were concerned that Bob was floating around, and we knew that Bob had been upset about Episode 5. We had anticipated he would be upset about Episode 5. The truth is, we had reached out to law enforcement to try and get color about when they planned to arrest him. Because as civilians, one always assumes that law enforcement is going to move more quickly than they naturally do. We understand why they have to be cautious. We understand they have obligations that filmmakers don’t have. But we were nervous. We had security.”

Now that the case is back in the legal system, Jarecki and his crew are entering murky waters. They are filmmakers, not journalists. They created a compelling study of Durst, but it is a TV series, a piece of entertainment, including ominous music and nightmarish re-creations. The filmmakers are artists telling a story, using their evidence for dramatic impact.

Durst’s so called confession at the end of “The Jinx” made for a spine-tingling conclusion to the series, but it was hardly a smoking gun, in a legal sense. The filmmakers had already documented his strange self-dialogue, which could easily be written off as the babbling of a doddering old man. After all, Durst admitted to cutting up a man with a saw and dumping the remains in the Gulf of Mexico and still managed a not guilty verdict.

The handwriting on the so-called “cadaver” note is more compelling evidence. But a jury under the influence of Durst’s well-paid legal team may find that slim evidence, if the prosecutors still can’t physically place Durst at the scene of the crime. The filmmaker’s handling of this key piece of evidence could become a central point of contention. O.J.’s lawyers made the chain of evidence into an elaborate conspiracy.

Durst attorneys will certainly use the series against the prosecution. Can Durst get a fair trial? Anybody who has seen or heard of the documentary will almost certainly have a pre-conceived opinion about his guilt. With it’s haunting music, skeptical tone and ah-ha dramatic moments, the series screams “Guilty! Guilty! Guilty!”

If the case goes to trial, Jarecki and Smerling are going to face intense scrutiny from defense attorneys. In court the filmmakers will certainly seek to receive protection from identifying their sources, editing choices and investigation techniques, just like other journalists.

But this is dicey territory. Some courts have not recognized independent filmmakers and bloggers as journalists, even though they are often producing cutting edge investigators, revealing stories untouched by traditional media.

The filmmakers are facing a barrage of legal questions. Will they turn over raw footage? What about their notes? Will they testify for the prosecution?

Jarecki and Smerling might regret their early interviews, when they fanned the flames, calling Durst’s audio “chilling.” Soon after the final episode aired, they clammed up, noting in a statement, “we are likely to be called as witnesses in any case law enforcement may decide to bring against Robert Durst.” Whether they like it or not, the storytellers are now a big part of the story.

Kevin Brass has covered media for the Los Angeles Times, San Diego Magazine and the Austin Chronicle. He is the author of “The Cult of Truland,” a satirical novel set in the world of celebrity journalism.

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