Alleged Confession in Menendez Case Ruled Admissible : Courts: The judge says a therapist’s audiotape of sessions with the brothers is not protected by doctor-patient confidentiality.

In a major victory for prosecutors, a judge ruled Monday that a psychologist’s audiotapes on which two Beverly Hills brothers allegedly confessed to the murders of their wealthy parents may be used as evidence against them.

“I have ruled that none of the communications are privileged,” Santa Monica Superior Court Judge James Albracht announced after a series of closed-door hearings that stretched over several months.

He found that psychologist Jerome Oziel had “reasonable cause to believe” that Lyle Menendez, 22, and his brother, Erik, 19, “constituted a threat and it was necessary to disclose those communications to prevent a danger.”

Communications between a therapist and his patient are usually considered confidential, unless they involve threats or have been disclosed to a third person.

Defense attorneys, citing the importance of the issue, immediately said they would appeal the decision.

The prosecution, while calling the ruling important, said it broke no new legal ground. Albracht’s decision releases the tapes to the district attorney’s office--which has already heard them--and clears the way for their eventual use at trial.

The tapes, which include conversations and one actual psychotherapy session during a six-week period last fall, are considered key evidence against the defendants.

“They concern the brothers’ emotional and psychological state after the murder of their parents,” Albracht said of the taped sessions.

The brothers were arrested in March in the 1989 shooting deaths of Jose and Kitty Menendez. Jose Menendez, a Cuban immigrant, was chief executive of Live Entertainment Inc. of Van Nuys, a video and music distributor, a subsidiary of Carolco Pictures Inc.

The judge did not explain the legal basis for his ruling and said he would seal both his written opinion and the tapes until Aug. 15 to give defense attorneys time to seek an appeals court order. If the higher court agrees to hear the matter, local proceedings against the brothers could be delayed for months.

Defense attorneys said they will take their appeal to the state Supreme Court, if necessary.

“We’ve always said that this is too important an issue not to be decided at a higher level,” said attorney Leslie Abramson. “It brings a virtual end to the patient-psychotherapist privilege as we understand it.”

Both Abramson and co-counsel Gerald Chaleff said that the right to confidentiality belongs to the patient and should not be trampled by a “talkative” therapist.

Albracht’s decision, Abramson said, “treats the privilege as if it’s secret keeping. . . . The therapist cannot simply be a gossip or a liar--which we are contending in this case--to make the privilege disappear,” she said. “In my opinion, Dr. Oziel was less than credible with this court.”

The judge said the hearings on the issue were exceptionally complex and all parties involved “vigorously represented their side.”

Prosecutors--who opposed Oziel’s claim that the tapes belong to him and should not be used--were barred from being present during testimony or argument on the matter, although they submitted briefs and position papers. Reporters and the public also were excluded.

Deputy Dist. Atty. Elliott Alhadeff said Monday’s decision breaks no new legal ground.

“The facts were clear and there was sufficient law,” the prosecutor said. “The ruling is important, though, because of the procedures used to make the determination.”

Just what procedures he was referring to is not known, since the hearings took place behind closed doors.

“It certainly does assist us in the prosecution of the case,” Alhadeff said. “We do intend to introduce the tapes at the preliminary hearing.”

But the prosecutor insisted, as he has before, that while “we consider it to be very important evidence, it is not crucial to the prosecution’s case.”

The Menendez brothers showed no reaction to Albracht’s ruling, although relatives and friends in the courtroom gasped.

The defendants, who have pleaded innocent, remain in jail without bail. They could face the death penalty if convicted.

A date for the brothers’ joint preliminary hearing is to be set Monday in Beverly Hills Municipal Court.