Menendez Trial to Test Emerging Legal Theory : Law: Even if brothers can prove they were abused, judges and jurors do not always see it as an excuse for killing parents.

The murder trial of brothers Lyle and Erik Menendez, charged with the shotgun slayings of their parents, promises to be a key test of an emerging legal strategy that portrays abused children as victims, akin to battered women, and justified in killing in self-defense.

Both brothers will argue that their father sexually abused them for years, according to a defense lawyer and other sources. The brothers also will claim they endured years of mental and physical abuse from both parents, and finally killed as an act of self-defense, lawyers said. It is the same sort of defense a battered woman might offer.

The trial, due to begin Tuesday in Van Nuys Superior Court, holds the potential to break legal ground in California in the defense of youths who kill.

It is a defense with considerable risk, legal experts said, because it is not widely accepted and there is no guarantee it will be. Over the past 15 years, battered women have steadily gained acceptance from courts nationwide when they offer claims of self-defense. Abused children generally have not.

But an incipient movement is brewing. In Texas and Washington state, the law now says that if a terrified child kills a parent who brutalized him or her, the jury may find it an act of justifiable self-defense.

The law of self-defense traditionally has required proof that the defendant killed out of a “reasonable” fear of “imminent harm.” The new defense strategy will try to show how long-term domestic violence can alter an abused child’s perceptions of what is reasonable.

For the defense to work, Lyle and Erik Menendez must convince jurors that they were abused and that the abuse was so bad it warranted killing both parents. But prosecutors say the strategy misses a basic point--that plight does not make right.

And, they add, they fear such a strategy invites open season on parents. That is something the law does not and cannot sanction, said Deputy Dist. Atty. Pamela Bozanich, the lead prosecutor in the Menendez case.

“You can’t entrust people to make these types of decisions on their own,” she said. “That’s what the laws are for.”

Judges also remain wary.

Vincent J. Femia, a Circuit Court judge in Maryland, has seen two parricide cases in his courtroom in recent years. In one case, he sentenced a 17-year-old girl, who claimed abuse had driven her to kill, to life in prison. He said he and every judge he knows approaches allegations of child abuse and claims of self-defense with “great skepticism.”

“Anyone in my position has to approach such a case with the idea that you are about to be conned,” Femia said.

The judge added: “In this day and age it has become de rigueur in parricide cases to claim this abuse,” he said. “The father is gone, the mother is gone. The sympathy now lies with the children, who complain of having their pudding withdrawn.

“And people in the Fourth Estate tend to make such claims plausible,” Femia said. “Let’s face it, it sells a lot of soap, this kind of headline: ‘Children Put Upon by Terrible Parents.’ ”

Even if children are put upon by truly terrible parents, there is always resistance in court to new legal theory, advocates for abused children said.

“The reality is that child abusers are everywhere,” said Paul Mones, a Santa Monica lawyer who devotes his practice solely to defending boys and girls who kill their parents. “And in parricide cases we come face to face with the long-term consequences of abuse--with the victim transformed into perpetrator, the violence comes full circle,” said Mones, author of the 1991 book “When a Child Kills.”

Charles Patrick Ewing, author of the 1990 book “Kids Who Kill,” said he has “not met a kid who killed a parent who was not abused.”

It is natural to suspect that someone facing a charge of murder might invent claims of abuse, said Jerome G. Miller, director of the National Center for Institutions and Alternatives in Alexandria, Va., which treats troubled youths. “But in our experience, people just do not fabricate this sort of ruminative, horrendous, personally aimed abuse,” he said.

Defense lawyers and experts in child abuse said the link between abuse and parricide has only recently come to be understood, a direct consequence of the increased national consciousness of the scope of child abuse, 10 years’ worth of intense professional research, and television shows exploring the issue.

When evidence of that connection is presented--and the defense in these cases is in essence a prosecution of the dead parents for abuse--the jury can be receptive, lawyers said. When a judge bars the defense, attorneys said, that virtually ensures a verdict of guilty.

In Indiana, Dale Whipple claimed that his parents abused him for 17 years before he picked up an ax on Jan. 1, 1985, and hacked them both to death. His father had beaten him regularly with a 2-by-4, Whipple said. His mother used to lay on top of him and squeeze his pimples, then slap him when he would squirm, he said.

But the judge refused to let Whipple’s jury consider a claim of self-defense. Whipple was convicted on two counts of murder and sentenced to concurrent terms of 30 and 40 years in prison.

In an interview from the maximum-security Pendleton Reformatory near Indianapolis, Whipple said he saw no way out but killing. “I was trapped,” he said. “I didn’t want my parents to suffer. I just wanted them gone.”

In Texas, Donna Marie Wisener claimed her father abused her physically and sexually. She said he threw oak logs at her, handcuffed her to a chair, sent her lewd Valentines and gave her “rubdowns.” Two years ago, when she was 17, she shot him to death.

The jury was allowed to consider self-defense. It acquitted her.

“Anytime a child kills a parent, something’s wrong,” said her defense lawyer, Bryan Johnston of Tyler, Tex. “You need to look for more than just a murder.”

But some law professors said they remain suspicious.

Without physical evidence such as bruises or the documentation of a doctor’s report, the issue of corroboration has to loom large for a jury, said Robert Pugsley, a professor of criminal law at Southwestern University in Los Angeles.

If there is no such evidence in the Menendez case, Pugsley said, the defense then becomes the brothers’ claim “that their parents or father were doing whatever to them, with the obvious downside that they’ve conveniently eliminated both parties who would be the perpetrators or witnesses to the events.”

“That’s not to say they’re lying,” Pugsley said. “But there’s good reason to be skeptical.”

Lyle and Erik Menendez shot and killed their parents on Aug. 20, 1989, in the living room of the family’s $4-million Beverly Hills mansion. The brothers have pleaded not guilty and for nearly four years neither they nor their lawyers said anything about the killings. Allegations of abuse have been disclosed only in recent weeks as the trial neared.

Erik Menendez’s defense lawyer, Leslie Abramson, contends that Jose Menendez molested his younger son for 12 years, from ages 6 to 18. Sources have told The Times that Lyle Menendez claims to have been molested by his father from ages 6 to 8.

Abramson said the shooting occurred after confrontations that began when Lyle went to his father and told him to stop molesting Erik--or the boys would go public, embarrassing the prominent video company executive.

Jose Menendez was shot five times; Kitty Menendez, 10. Their sons, 18 and 21 at the time of the shootings, had seemingly been raised in wealth and privilege. Neither son told anyone about the alleged abuse. Neither ever ran away from home.

Over the past four years, friends and relatives have told reporters they never saw a hint of abuse. Prosecutors call it murder in cold blood and say it was greed that led the sons to kill. They are seeking the death penalty.

Cases of youths who kill their parents fit a pattern, experts said.

According to the FBI, there are about 300 parricide cases a year. Mones, the lawyer who specializes in parricide cases, said they usually involve white, middle- or upper-class boys from 14 to 22 with above-average intelligence who one day explode in rage.

The cases of battered women also follow a predictable pattern. They endure abuse for long periods of time and then explode, experts said.

Four months ago, ruling in the case of a 17-year-old boy who had killed his stepfather, the Washington state Supreme Court became the first state court in the nation to extend its law to abused children. It had also been the first state court--in 1977--to alter the standard of what was reasonable for battered women.

In California, the question remains ripe for the Menendez case: Is reasonableness to be seen through the eyes of an ordinarily prudent person or a sexually abused teen-ager?

It is not one with an easy answer.

“And it’s all tied up together in the general public’s accepting that such horrible things could happen to kids by people who appear to be decent human beings,” said Denver psychologist Lenore Walker, the nation’s leading expert on battered women and author of a book on abused children. “That’s what these cases are all about.”