Menendez Judge Rules Tape May Be Used at Trial : Courts: The decision to allow therapist’s recording is a blow to defense in trial of brothers accused of slaying their parents. It allegedly contains the suspects’ confession.

In a significant victory for prosecutors, a judge ruled Thursday that a therapist’s audiotape describing Lyle and Erik Menendez’s alleged confessions to the murders of their parents in Beverly Hills may be used as evidence in their trial.

Wrapping up the major pretrial hearing in the case, Van Nuys Superior Court Judge Stanley M. Weisberg ruled that the tape was legally seized from Dr. L. Jerome Oziel’s safe deposit box. The judge also ordered Oziel to testify about the alleged confession at the brothers’ trial, due to begin next month.

Defense attorneys said they would not appeal, meaning three years of litigation over the tape--considered the key piece of evidence against the brothers--ended in favor of the prosecution. Without Oziel, the case against the brothers is believed to rest largely on circumstantial evidence.

Lyle Menendez, 25, and Erik Menendez, 22, face the death penalty in the Aug. 20, 1989, shotgun slaying of Jose and Kitty Menendez. Both brothers have pleaded not guilty and have been held without bail since they were arrested in March, 1990. Neither showed any emotion Thursday at Weisberg’s ruling.

Jose Menendez, 45, was chief executive of Live Entertainment Inc. of Van Nuys, a video and music distributor. He and his 47-year-old wife were slain while watching television in the family room of their mansion.

The tape is vital to the case because the defense maintained that it and any testimony by Oziel were inextricably linked--that if the tape was not usable, Oziel ought to be barred from testifying about the same material.

Weisberg said Thursday that that claim lacked merit.

Oziel, who testified at length this week and said he made the tapes in part to protect himself from retribution by the Menendez brothers, appeared to remember the events, the judge said. But, if need be at the trial, the judge said, Oziel could use the tape to refresh his memory.

The judge said Oziel’s testimony was so important that the therapist “can and will be compelled to testify.”

“That’s what litigation is for,” Leslie H. Abramson, Erik Menendez’s lawyer, said after the hearing. “Some you win. Some you lose.”

Oziel made the tape from notes of sessions with the brothers on Oct. 31 and Nov. 2, 1989, about two months after the killings.

The tape itself remains sealed. But a 1991 state appeals court ruling sets forth details:

At the Oct. 31 session, Erik Menendez confessed the planning and execution of the crime to Oziel. Lyle Menendez arrived at Oziel’s office shortly afterward. Lyle Menendez said “he was considering killing me,” the court quoted Oziel as saying.

The therapist perceived this as a threat, warned his wife and his lover, took various other precautions but decided to keep the brothers as patients in hopes of persuading them he was an ally.

On Nov. 2, according to the court opinion, the brothers told Oziel they killed “out of hatred and out of a desire to be free from their father’s domination, messages of inadequacy and impossible standards.”

Defense attorneys initially maintained that none of this could be used at trial because it violated the therapist-patient privilege of confidentiality.

But last August, the state Supreme Court ruled that the privilege evaporated because of the purported threats against Oziel.

The high court did strike two other tapes Oziel also made in late 1989--notes from a Nov. 28 session with Erik Menendez and the recording of a session on Dec. 11 with both brothers. On those tapes, the court said, there was insufficient evidence of threats to warrant disclosure.

Left with only one tape, defense attorneys claimed in court this week that authorities illegally seized it in March, 1990, from Oziel’s safe deposit box at a Union Federal Bank branch. The warrant authorizing the search listed Oziel’s house and office but not the safe deposit box. Defense lawyers said that was a fatal flaw.

Weisberg disagreed. He ruled that Oziel consented to turn over the tape in the safe deposit box when confronted by authorities. The therapist’s consent made the seizure legal, the judge said.