Justices to Rule on Use of Psychologist’s Tapes in Menendez Case

The state Supreme Court agreed Thursday to decide whether a psychologist’s audiotapes including an alleged confession by two Beverly Hills brothers can be used in their trial for the murders of their wealthy parents.

The tapes are considered potentially significant evidence in the case of Erik and Lyle Menendez, charged with the August, 1989, shotgun slayings of Jose and Kitty Menendez in a bid to acquire a $14-million inheritance.

The court’s action means an indefinite delay in the widely publicized case--and its ultimate ruling could provide important new guidelines on confidentiality of conversations between patients and therapists.

The justices, granting a request by the brothers’ attorneys, will review a ruling in March by a state Court of Appeal finding that release of the tapes was not barred by the therapist-patient privilege of confidentiality.

Thursday’s action came in a brief order signed by five of the seven court members: Justices Armand Arabian, Stanley Mosk, Allen E. Broussard, Joyce L. Kennard and Marvin R. Baxter.

Gerald L. Chaleff of Santa Monica, an attorney for Lyle Menendez, welcomed Thursday’s action as a sign the justices may rule against use of the tapes.

“This is an important issue for everyone because of the question of the therapist-patient privilege,” said Chaleff. “I don’t believe the court would have granted review if it didn’t feel at least we had an arguable issue.”

Los Angeles Assistant Dist. Atty. Harry B. Sondheim said the action did not imply the court would rule against use of the tapes. “I don’t think there has been a prejudgment in this case,” he said.

State law generally protects the confidentiality of communications between psychotherapists and patients, but exceptions have been made when patients threaten harm to others or their statements have already been revealed to a third party.

In a separate case last April, the high court ruled 4 to 3 that both a threat by a patient and a therapist’s subsequent warning to the intended victim could be used later as evidence to help convict the patient of a crime.

In the Menendez case, attorneys for the brothers had sought to prevent the release of four separate tapes authorities seized from L. Jerome Oziel, a Beverly Hills psychotherapist. Three cassettes contain notes dictated by Oziel after therapy sessions with the brothers Oct. 31, Nov. 2 and Nov. 28, 1989. The fourth is a recording of an actual session with the two men on Dec. 11, 1989.

In its ruling March 28, the court quoted Oziel as saying that Erik Menendez had confessed that he and his brother committed the murder. The court further quoted the psychologist as saying: “They didn’t kill their parents for money, but out of hatred and out of a desire to be free from their father’s domination. . . .”

The appellate panel found that threats made by the brothers against Oziel during the first two sessions eliminated their legal right to maintain confidentiality.

In a subsequent appeal to the state Supreme Court, lawyers for the brothers said the appellate court’s ruling should be reconsidered in light of the high court’s decision in the separate case in April.

The April ruling indicated that even if some statements to therapists may be released, others may not be, the attorneys said. Only those statements by patients that cause a therapist to warn potential victims should be revealed in court, they said.

In reply, county prosecutors said the appellate ruling was consistent with the decision the high court issued in April.