Prosecutors Again Seek Menendez Tape : Courts: The judge reserves a decision on whether to release a recording of the brothers discussing their family life with a therapist. They have testified that they killed their parents out of fear.

With Lyle and Erik Menendez having based their defense on their mental state, prosecutors Monday asked a judge to release the tape of a 1989 therapy session the brothers had with their Beverly Hills psychologist.

The Dec. 11, 1989, session is the only one the brothers had with therapist L. Jerome Oziel in which they were taped, and defense lawyers have fought hard to keep the recording secret before and during the brothers’ murder trial.

Not even prosecutors have been allowed to hear the tape. Monday, however, they appealed to Van Nuys Superior Court Judge Stanley M. Weisberg to let them listen to it.

Legal arguments over the tape consumed much of the day in court as testimony was postponed because a pregnant juror was under doctor’s orders to stay home. Weisberg did not release the tape, reserving a decision.

Using his own notes--not the tapes of the counseling sessions--Oziel testified for the prosecution that the Menendez brothers confessed to the Aug. 20, 1989, shotgun slayings of their parents at sessions about two months later, on Oct. 31 and Nov. 2, 1989.

There has been no testimony at the trial about the Dec. 11 session, which involved a discussion of the Menendez “family constellation,” according to a state Court of Appeal decision.

But Deputy Dist. Atty. Pamela Bozanich said the tape should be unsealed now that the Menendez brothers have testified that they killed their parents out of fear after years of physical, sexual and psychological abuse.

Arguing without the juries for each brother present, the prosecutor cited a technicality in the rules of evidence that lifts the usual patient-therapist confidentiality when the patient puts a “mental or emotional condition” at issue.

Defense lawyers argued that fear was not a “mental or emotional condition,” but Weisberg disagreed.

He declined to release the tape to prosecutors, however, after defense attorney Michael Burt said Oziel made the Dec. 11, 1989, tape at the urging of one of the brothers’ previous defense lawyers--meaning that it was covered by the confidentiality of the attorney-client privilege.

Weisberg said he wanted more time to consider that argument.

Lyle and Erik Menendez are charged with first-degree murder in the killings of their parents, Jose Menendez, 45, a wealthy entertainment executive, and Kitty Menendez, 47.

Testimony is due to resume today. Defense lawyers said they hope to rest their case by the end of the week.