Justices Urged to Bar Tapes From Menendez Trial

Lawyers for two Beverly Hills brothers accused of murdering their wealthy parents asked the state Supreme Court on Thursday to bar from their trial a psychologist’s audiotapes that allegedly contain their confessions to the crime.

The tapes, if ruled admissible as evidence, are seen as a potentially key element in the prosecution’s case against Erik and Lyle Menendez, accused of the August, 1989, shotgun murders of Jose and Kitty Menendez in what authorities say was an attempt to gain a $14-million inheritance.

The high court, hearing a far-reaching test of the privilege of secrecy between psychotherapist and patient, was told by attorneys Michael Burt and Leslie H. Abramson that the only statements that should be disclosed are those specifically involving an alleged threat to the psychologist by the brothers.

The lawyers argued that the rest of the taped material is inadmissible and that the psychologist violated the privilege by telling his wife and his paramour about the reputed confession to the slayings.

“Did he really have to give detailed, titillating information to those two women to reduce any danger to them?” asked Abramson.

Los Angeles County Deputy Dist. Atty. Brent Riggs countered that the privilege of confidentiality evaporated when the brothers threatened the life of their psychologist. In any event, Riggs said, any privacy interest maintained by patients in such circumstances must yield to an interest by the state in effectively prosecuting murderers.

“We now have a duty to define due process of law for (the state) in equivalent terms to what we have defined for the defendant in the past,” he said.

The justices heard arguments for an hour in a downtown Los Angeles courtroom. A decision is due within 90 days.

State law generally protects the confidentiality of communications between psychotherapists and patients, but an exception is made when patients make threats and the therapist reasonably believes others must be warned of the danger.

The tapes at issue contain audio notes by Beverly Hills psychologist L. Jerome Oziel of conversations with the brothers and a session with the two in which they allegedly made incriminating statements about the murders.

During one session, the brothers threatened Oziel. The psychologist warned his wife and a woman friend and told them of the alleged confessions. Investigators learned of the tapes from the friend and acquired them in a search of Oziel’s office.

The tapes have remained under court seal pending trial but a state Court of Appeal quoted Oziel as saying on the tapes that the Menendezes had killed their parents “out of hatred and out of a desire to be free from their father’s domination.”

Lawyers for the brothers challenged the admissibility of the tapes, saying they were protected from disclosure by the privilege of confidentiality. But the appeals court ruled in March, 1991, that the recordings could be released in light of threats the brothers made against the therapist.

In past cases, the state high court has held that both a threat by a patient and a therapist’s subsequent warning to an intended victim could be used as evidence to convict the patient of a crime. But the court has yet to rule definitively on whether other statements made during therapy sessions--such as a confession--can also be used against a patient in court.

The Menendez case has drawn wide attention from medical and psychotherapist groups concerned that allowing broad use of statements to therapists could discourage potentially dangerous patients from seeking treatment and counseling.

In a friend of the court brief, the American Psychological Assn. and the California Psychological Assn. said that exceptions to the privilege of confidentiality should be limited to warnings and the specific statements that triggered the warnings. If a threat to a therapist automatically ends a confidential relationship, few patients will continue therapy and the result will be greater danger to the public, the associations said.