Seized Tapes May Be Excluded in Menendez Murder Case

Tape recordings believed to be the central piece of evidence in the case against Beverly Hills brothers Lyle and Erik Menendez, accused of murdering their parents, may be excluded from their trial because of legal proceedings initiated by the defendants’ psychologist.

Therapist L. Jerome Oziel, who already is on probation with the state psychology committee for ethics violations in another case, is contesting the constitutionality of the seizure of records from his home and the breach of doctor-therapist confidentiality their admission as evidence would create.

“He is obligated (by California law) to submit the issue of confidentiality to a Superior Court,” his attorney, Bradley Brunon, explained to reporters after a 90-minute closed-door meeting with Santa Monica Superior Court Judge James Albracht, attorneys for the Menendez brothers, and Deputy Dist. Atty. Elliott Alhadeff, who will prosecute the case.

Albracht said the situation is so unusual that he was at a loss as to what to call the motion, which seeks the records’ return. The judge set a hearing on the matter for April 4, and ordered that all related documents and motions be sealed in the meantime.

“This is a very serious issue,” the judge added, because it involves “potential prejudice to the defendants and violation of legal rights.”

The prosecution contends that the confidentiality usually accorded therapist-patient exchanges does not apply “where there is a continuing threat of violence to others,” in this case alleged threats against Oziel.

The defense argues that such exchanges are protected by law and should neither be made public nor used in the courtroom.

Last August, the two brothers reported finding the bodies of their parents, entertainment executive Jose Menendez and his wife, Kitty, in their Beverly Hills mansion. Both victims had been hit repeatedly with shotgun blasts fired at close range.

Prosecutors allege that the two were slain by their sons for financial gain, an estate estimated at $14 million. A $400,000 life insurance policy already has been paid to the brothers.

The defendants are to be arraigned Monday in Beverly Hills Municipal Court on two counts each of murder with special circumstances that, if they are convicted, could send them to the gas chamber. They are being held without bail.

Los Angeles County Dist. Atty. Ira Reiner has characterized the psychologist’s tapes as “ very important.”

However, Alhadeff said the prosecution has other evidence and will go forward with or without the tapes, which were seized in a search of Oziel’s Sherman Oaks home hours before the arrest of Lyle Menendez, 22, earlier this month. His 19-year-old brother, Erik, was playing in a tennis tournament in Israel, but returned to Los Angeles to surrender.

The search was carried out by a “special master”--an independent attorney appointed by the court when a search warrant involves the records of a psychotherapist who is not a suspect in a crime.

Under the procedure, the special master is to seize and seal such records, then take them to court.

However, in the Menendez case, the police reviewed the materials before they were turned over to the special master, according to a law enforcement source. The defense contends such a review violates their clients’ right to a fair trial.