Lawyer’s Absence, Dispute Delay Menendez Tape

Though unsealed, the tape of Lyle and Erik Menendez in therapy was not played Thursday at the brothers’ murder trial because of a lawyer’s absence and a dispute over whether the prosecution or defense will get to play it first.

Defense lawyer Leslie Abramson was away from court, attending the birth of a baby she plans to adopt.

Van Nuys Superior Court Judge Stanley M. Weisberg sent jurors home until Monday--after telling them that the trial, which began in July with an end forecast for Thanksgiving, is now likely to drag into December.

Erik Menendez, 22, and Lyle Menendez, 25, are charged with first-degree murder in the Aug. 20, 1989, shotgun slayings of their parents, Jose Menendez, 45, and Kitty Menendez, 47.

Without jurors present, prosecutors--who heard the Dec. 11, 1989, tape for the first time Wednesday night after Weisberg unsealed it--told the judge that defense attorneys should not be allowed to carry out a preemptive strike and play it for jurors first.

The tape is the only one of various sessions the brothers had with Beverly Hills psychologist L. Jerome Oziel in which they were tape-recorded. Although they now insist that they killed their parents in fear after years of sexual abuse, they apparently make no mention of molestation on tape.

The defense fought for nearly four years to keep the tape secret, but Weisberg ruled that there was no longer any basis to keep it sealed after the brothers put their mental state at issue in the trial.

Deputy Dist. Atty. Pamela Bozanich argued Thursday that the defense should not be allowed to present an out-of-court statement by the brothers because it is a classic example of inadmissible hearsay evidence.

But, she added, an exception to the hearsay rule permits prosecutors to offer such evidence against defendants in a criminal case.

Defense attorney Michael Burt conceded that the tape is hearsay. But he said the law allows expert witnesses to testify that they relied on the tape to form opinions--and argued that the loophole would allow the defense to play the tape.

Though prosecutors have been clearly elated to get the tape, defense attorneys told reporters that some material on it is helpful to them.

“It certainly doesn’t talk about money,” Abramson said. “It doesn’t talk about hatred. It doesn’t talk about BBC (Billionaire Boys Club) movies. It doesn’t talk about perfect plans.

“It talks about a very crazy, dysfunctional family--and is, in my opinion, clearly orchestrated by the Great Satan,” she said, apparently referring to Oziel. “And ultimately (it) makes absolutely no sense.”

The tape was made before the brothers were arrested.

Weisberg did not rule Thursday on who would get to play the tape first.