Menendez Tapes Ruled Acceptable as Evidence : Murder case: Brothers allegedly told therapist of killing their parents. Decision will be appealed.

Two Beverly Hills brothers allegedly confessed to their psychologist that they murdered their multimillionaire parents two months earlier “out of hatred and out of a desire to be free from their father’s domination,” according to tape recordings detailed Thursday in a state appellate court ruling.

Climaxing a year of legal wrangling, the 2nd District Court of Appeal ruled that psychotherapy sessions between Lyle and Erik Menendez and psychologist Jerome Oziel were not protected patient-therapist communications and that any claim to privacy had evaporated when the brothers threatened the therapist.

The ruling, if upheld, means that the tapes will be given to prosecutors for possible use as evidence in the murder trial.

Attorney Joel Isaacson, who represents Lyle Menendez, 23, said the defense will appeal the decision to the state Supreme Court, thus delaying the release of the actual tapes and the start of proceedings against the defendants. They have been held in County Jail without bail since their arrest last year, and are due in Beverly Hills Municipal Court on Tuesday to schedule their preliminary hearing.

“Most of what is on the tapes is the statements, personal thoughts and impressions of Dr. Oziel,” said Isaacson, adding that the psychologist “clearly was manipulating Erik and Lyle.” He said the tapes represent but “a small portion” of the story that will unfold at trial.

Three of the audiocassettes consist of notes dictated by Oziel after therapy sessions with the brothers on Oct. 31, Nov. 2 and Nov. 28, 1989. The fourth records a session on Dec. 11. The decision by the three-member appeals panel did not clearly identify which statements on the tapes were made by the brothers or by Oziel.

The tapes, seized from Oziel the day of Lyle Mendendez’s arrest, are the key prosecution evidence against the pair in the shotgun slayings of entertainment executive Jose Menendez and his wife, Kitty. They were shot at close range on the evening of Aug. 20, 1989, as they watched television and snacked on ice cream.

At first, authorities were investigating the murders as a possible mob hit aimed at Menendez, a high-ranking executive with Carolco Pictures Inc.

In October, 1989, Erik Menendez, now 20, telephoned his therapist for an urgent appointment.

They met late Halloween afternoon, talking first in Oziel’s Bedford Drive office and then during a walk in a nearby park, according to court records. It was there, Oziel said on the tapes, that Erik confessed that he and his brother had committed the murder.

“Erik revealed in detail the planning and execution of the crime, including (the brothers’) fabricated alibi defense,” Oziel said, according to the decision.

On Nov. 2, 1989, both brothers discussed their motivation for the crime, according to the psychologist’s account. “They didn’t kill their parents for money but rather out of hatred and out of a desire to be free from their father’s domination, messages of inadequacy and impossible standards,” the decision quoted Oziel as saying.

The ruling also revealed previously secret testimony by Judalon Smyth, identified in court records as Oziel’s “paramour.” Smyth said she was in a hallway outside Oziel’s office when she overheard Lyle explode in anger after learning that his brother had admitted the murders to Oziel.

“I can’t believe you did this!,” Lyle Menendez allegedly told his brother. “I can’t believe you told him! I don’t even have a brother now! I could get rid of you for this! Now I hope you know what we are going to do. I hope you realize what we are going to have to do. We’ve got to kill him and anyone associated to him.”

Smyth also testified that she heard Erik sob, “I can’t stop you (Lyle) from what you have to do, but . . . I can’t kill anymore.”

After the session, Oziel panicked, told his wife to leave their house with their children and spent the night at Smyth’s home, according to the decision.

The psychologist told his wife and Smyth details of the brothers’ alleged confession and threats, then he bought three shotguns, repaired his home security system, and decided to try to persuade the brothers that he was on their side.

According to the decision, Lyle told Oziel that “it wouldn’t look too good if I (Oziel) disappeared too soon. It would start to become obvious that it wasn’t too healthy to be associated with the Menendez boys since people who did seemed to die a lot and always with shotgun shells around.”

When Lyle asked if he was frightened, Oziel replied that ordinarily he did not choose to live in fear, the decision said.

“Lyle looked at me coldly and said, ‘Neither did my father,’ ” according to Oziel.

The psychologist said that when Erik was alone with him, the brother expressed fear of Lyle and remorse for the killings, saying: “It wouldn’t be so bad if he killed me. I would just let him do it.” According to Oziel’s account, Erik said his brother was not interested in further sessions: “I don’t think he wants to be controlled by anybody . . . that’s why he murdered my parents . . . he just wants to be free and he wants to do whatever he wants to do.”

Oziel is expected to be a key witness at the Menendez murder trial, where defense attorneys say they will challenge his credibility.

Oziel had sought the return of his tapes, but Santa Monica Superior Court Judge James Albracht ruled last August--after a series of closed-door hearings--that they were not privileged and could be used as evidence against the brothers. Attorneys for the brothers appealed to the state Supreme Court.

The California Psychiatric Assn. filed a friend of the court brief supporting Oziel’s contention that the tapes should remain private. Mental health professionals view any disclosure of communications between therapists and patients as a violation of the long-held principle of doctor-patient confidentiality.

The state Supreme Court sent the case back to the appeals court for a full hearing, which also was conducted in secret.

The appeals court held that “where a psychotherapist has reasonable cause to believe that his patient poses a threat to himself or others, the psychotherapist may disclose otherwise confidential communications . . . to prevent the threatened danger.

“Where the patient seriously threatens the therapist himself and thereafter neither the psychotherapist nor the patient are engaged in a genuine therapeutic relationship, the confidential nature of the therapist-patient relationship ceases to exist and further communications by the patient to the therapist are not privileged.”

The court held that while the first two sessions fall into the category of therapy, the final two “focus primarily upon topics which might aid petitioners should they be arrested and tried for the murders. During these sessions, Dr. Oziel was motivated by self-preservation, and petitioners were motivated by self-interest.

“The purported ‘therapy’ was, in fact, a charade.”

Neither Deputy Dist. Atty. Pamela Ferrero nor defense attorney Leslie Abramson, who represents Erik Menendez, could be reached for comment.