Killers As Victims: Defending Menendez Brothers

Killers as Victims: Defending Menendez Brothers

By SETH MYDANS

Published: November 19, 1993

The New York Times

LOS ANGELES, Nov. 18— The defense concluded three months of impassioned testimony today in the Menendez brothers' murder trial after turning the tables on the prosecution in its final week and presenting the most damaging evidence against the brothers, a taped confession they had fought to keep out of the courtroom.

The tactic, intended to steal the thunder of the prosecutors, seemed a fitting close to an aggressive defense that has sought to turn the seemingly obvious on its head, making victims of the defendants and villains of the parents they admit they killed.

Even the 48-minute tape of the brothers' confession to a psychologist became a two-edged sword in the hands of the defense, leaving as cloudy as ever the motives of Lyle and Erik Menendez in the 1989 shotgun slaying of their parents in their Beverly Hills home. Effort to Win Sympathy

"I think that ultimately it's going to come down to how much do the jurors feel some sympathy for these defendants, and do they really perceive them as victims in some way," Erwin Chemerinsky, a law professor at the University of Southern California.

The prosecution will now take a final turn, rebutting defense testimony and putting its own interpretation on the taped confession in proceedings that are expected to last well into next month. Any sympathy the defendants may have won will have been hard-earned. The brothers, now 25 and 22, entered the courtroom as cliches, portrayed avidly in the press as a pair of rich boys who could not wait for their parents to die to get a $14 million inheritance, so they shotgunned them to death as they watched television.

Facing the death penalty on charges of first-degree murder, the brothers have mounted a many-layered defense in which they assert that because of years of sexual and psychological abuse by their father they developed a fear that their parents were about to kill them. They contend that they killed their unarmed parents in self-defense.

Even if this argument does not win complete acquittal, it could lead to a conviction on a reduced charge of voluntary manslaughter under the theory of "imperfect self-defense."

Speaking to reporters recently, Leslie Abramson, the lawyer for Lyle Menendez, described that theory this way: "Given what they knew about their parents, their fear at that point is unquestionably genuine. So whether they were right or whether they were wrong in the way it turned out doesn't mean that at the time they acted they didn't reasonably believe they were in danger. And that is all the law requires."

Over the past three months the defense has systematically built its case, portraying in sometimes numbing repetitiveness the overbearing and abusive nature of the father, Jose Menendez, and the fecklessness and anguish of his wife, Kitty. Once the groundwork was laid, the brothers spent nearly a month on the witness stand, recounting in graphic and wrenching detail what they said was sexual abuse by their father. Whatever the truth of their testimony, their emotions were impossible to dismiss, and much of the courtroom was in tears along with them.

"There is no way in God's green earth these boys are going to be convicted of first-degree murder," said Robert B. Hirschhorn, a leading jury consultant who has followed the trial from his home in Galveston, Tex."These lawyers are doing a remarkable job opening up Pandora's box. You are seeing America's worst nightmare unfolding before your eyes: the living hell that kids go through when they are abused." It was their lawyers' innovation to seek to apply to child abuse the precedents that have been developed in battered-wife cases, in which a spouse is so scarred by years of abuse that she may finally strike out in self-defense at a moment when she actually faces little objective threat.

For the public, which has been following the case like a local family scandal, legal niceties seem to be incidental to the opportunity to peek at the goings on behind the lace curtains of a Beverly Hills mansion. And with the defendants sobbing and wiping their eyes both on and off the witness stand, and lawyers pacing, rolling their eyes and snorting in derision at some witnesses, it has almost seemed an invasion of privacy to watch the televised trial itself.

For those seeking pure entertainment, the courtroom has even offered a subplot as a pair of feuding former lovers, the psychologist Jerome L. Oziel and his business partner Judalon Smyth, spent days in competing testimony raking over their failed affair. "The jury is going to have to sort out so many things here," said Laurie M. Levenson, a professor at Loyola Law School. "Are they going to remember more of the facts or more of the drama?"

At least two novelists have staked permanent claim to much sought-after seats in the courtroom and at least three television movies are said to be in the works. If these re-creations follow the testimony of the trial, each one could tell a different story.

The Menendez brothers assert that they bought shotguns and killed their parents because they thought they were about to be killed after threatening to reveal the family secret of their sexual abuse.

The prosecution has belittled this defense, pointing out that the young men bought their weapons well in advance and that their parents, eating strawberries and ice cream in front of the television set -- where there was also a college application form for Erik -- were obviously not about to kill them.

But the tape, the case's smoking gun, that was introduced last Friday for Lyle's jury and again this week for the separate jury hearing the case against Erik, does not seem to support the version of either the prosecution or the defense.

The tape of the psychiatric session was admitted as evidence at the end of the trial when Judge Stanley M. Weisberg of Superior Court ruled that the defense had made the psychological state of the defendants an issue. Seizing the initiative, the defense played it along with testimony from its own experts, who continued today to say that they found in it corroboration of the brothers' testimony.

But the tape does not include references either to abuse or to fear of their parents, while at the same time including no references to the prosecutors' assertion that the brothers killed out of greed.

Instead there is a passage that can be interpreted to support any version of the killing, and that leaves the case, after all the histrionics and legal jousting, as enigmatic as ever.

Through his tears, the younger brother, Erik, can be heard saying of his father: "He was somebody that I loved and I almost had no choice to do what I did. And I hate myself for doing it, and ah, and I understand why it was done, but somehow in my mind I can't rationalize it."