Erik Menendez Jury’s Notes May Indicate Progress

Two days after reporting it was hopelessly deadlocked, the Erik Menendez jury seemed back in full deliberations Wednesday with the judge disclosing two notes that suggested the jurors were focusing on murder charges.

In the first note, sent late Tuesday and read aloud Wednesday in Van Nuys Superior Court, the jury asked for an “explanation and amplification” of several legal concepts, including one of the key distinctions between first- and second-degree murder.

At noon Wednesday, its 18th day of deliberations, the jury sent another note asking to rehear testimony from older brother Lyle Menendez about how the brothers, concerned about fingerprints, picked up spent shotgun shells after shooting their parents to death on Aug. 20, 1989.

On Monday, the foreman of the same panel had sent a note indicating a strong possibility of a hung jury, saying “positions have essentially not changed after three weeks of discussion and debate.”

The separate jury weighing the case of Lyle Menendez, meanwhile, has continued deliberations without giving any such evidence of a snag. On Wednesday, its 20th day behind closed doors, Judge Stanley M. Weisberg disclosed that the panel wanted to hear just one piece of evidence--a tape-recorded interview of one of Lyle Menendez’s friends, conducted by a free-lance writer.

Erik Menendez, 23, and Lyle Menendez, 26, are charged with murder in the shotgun slayings of their parents, Jose Menendez, 45, a wealthy entertainment executive, and Kitty Menendez, 47.

But Weisberg has also given the juries the option of reaching lesser manslaughter verdicts in each killing.

The notes from the Erik Menendez jury, and short hearings in open court Wednesday, indicated that the panel was grappling to understand the fine line between the various possible verdicts, spelled out in legalese cluttering about 100 pages of jury instructions.

Both notes asked for help on the meaning of malice, the factor that must be present to consider a killing a murder. Without it, a killing can only be manslaughter.

“Your Honor, we had a long discussion about implied malice,” the jury foreman, a chemist and dean at Cal State Northridge, said during one of the jury’s court appearances. “We had difficulties with some specific words.”

Weisberg cut off the foreman because jurors are supposed to communicate with a judge only in writing. But the judge did tell the panel: “I realize the instructions themselves are not always written in the clearest and most straightforward language.”

The brothers admit they killed their parents in the TV room of the family’s Beverly Hills mansion, though they testified that they fired in fear after years of physical, emotional and sexual abuse.

Prosecutors contend that the brothers killed out of hatred and greed.

Two juries are hearing the case because some evidence was admitted against only one brother.

The lawyers in the case left the courthouse Wednesday without commenting.

But the notes from the Erik Menendez jury sparked a flurry of speculation among court veterans and legal experts.

“They would not be wasting their time or the judge’s asking for instructions on malice if they weren’t seriously considering murder as their verdict,” said Southwestern University law professor Robert Pugsley, who has followed the trial closely. “It would be a hollow exercise.”

Others noted, however, that it was also possible that the jurors were trying to decide between murder and manslaughter. The defense has expressed hope that jurors will at least rule out murder convictions, which could carry the death penalty or life in prison.

Still, experts said, prosecutors were sure to be heartened by the Erik Menendez jury’s interest in defining murder.

At the same time, the Lyle Menendez jury offered hope to the defense with its request for the tape of a reporter’s interview with Donovan Goodreau, once the older brother’s roommate--because it had been used by the defense to bolster the brothers’ claims of abuse.

In the 1992 interview with writer Robert Rand, Goodreau said Lyle Menendez had spoken of the molestation by his father.

But all that was certain from the day’s developments, the experts agreed, was that the Erik Menendez jury was back at work, following Weisberg’s prodding to keep trying.

The first note, sent to the judge just before the panel went home Tuesday evening, contained three technical questions about malice.

One asked for help understanding “malice in general” and “specifically, implied malice.”

Under the law, malice does not mean what it does in common speech, namely ill will or hatred.

The legal definition requires jurors to find that the shootings were done purposely, showing an intent to kill.

The law defines malice as either express, as when a killer makes that intent clear in word or deed, or implied, which requires a jury to infer deadly intent from the circumstances of the slayings.

The jury’s second question asked for the difference between premeditation and malice. Premeditation means planning--for days, weeks or years or just a few seconds.

Weisberg said the answers to both those questions were in the instructions he had provided when deliberations began last month, and told jurors they had to read the stack more closely.

But he provided an answer to the third question: whether first-degree murder must involve express malice, but second-degree murder could involve either express or implied malice.

That was absolutely correct, Weisberg said, sending the jurors back behind closed doors.

Just a few hours later, the second note was sent out. Part of it asked, “Must there be direct evidence to establish malice, or can circumstantial evidence be enough?”

Either will do, the judge said.

Finally, jurors asked to rehear testimony from Lyle Menendez about the shotgun shells, particularly a snippet from cross-examination on Sept. 21, 1993--an exchange that the Lyle Menendez jury has had reread three times since its deliberations began.

While inquiring about the brothers’ purchase of two shotguns Aug. 18, 1989, at a sporting goods store in San Diego, Deputy Dist. Atty. Pamela Bozanich abruptly asked about what happened two nights later, after the shootings:

“Were you at all concerned when you picked up the shotgun shells that those shells might be able to be made ballistically to a particular shotgun?” the prosecutor asked.

“No,” Lyle Menendez answered. “I was concerned about fingerprints at the time. But although later I wondered if they could match. But, I mean, I knew (authorities) didn’t have the gun. So I didn’t think they would be able to match anything.”

The Erik Menendez jury asked Wednesday to have that snippet read back twice. A few minutes later, they went home for the night.