The hung jury in the trial of Erik Menendez is the biggest "defense win" since Howard Weitzman kept John DeLorean out of jail for dope dealing nearly a decade ago.
The Menendez juries--one for each brother--were confronted with fact situations that did not compute. One story involved blood and money; the other, "dirty secrets." While Erik Menendez's jury was hearing testimony about cold-blooded murder, they were simultaneously watching a "loving mother" nurture her "adoring son" at counsel table. The set-up was the ultimate in cognitive dissonance. What Erik's jury witnessed at the defense table was so incongruous with what they were hearing from the prosecution that their data processing short-circuited.
Still, with one exception, there is nothing about the Menendez brothers' case that makes it unique. We get a free peek at a highly dysfunctional, sexually eccentric rich family, but we got that a few years ago in the case of Klaus Von Bulow. Similarly, patricide, while infrequent, is not so unusual that it should obsessively captivate the public's attention.
What makes the Menendez case unique is a defense strategy of unmitigated chutzpah --led by Leslie Abramson.
The defense conceded that Lyle and Erik Menendez killed their parents, conceded that the brothers planned the a pre-homicides, conceded that the two executed planned cover-up of the shootings, and conceded that Lyle and Erik went on a spending spree after the slayings. One is reminded of the French general who sent off a communique to Napoleon: "Our flanks are broken, the center cannot hold. The time is ripe. We are going to attack."
This was a murder trial of all offense. The prosecution served up the homicides of Jose and Kitty Menendez, and the defense chose to prosecute a dead man for incestuous pederasty. No one was defending. How was the prosecution supposed to disprove father-son incest, a crime that, by its nature, would require the utmost privacy because it violated the primary taboo of all cultures?
In the end, the defense's sex-with-sons "charges" against Jose Menendez proved so bizarrely diverting that the jury deliberating Erik's case froze in visceral ambivalence.
There are 35,000 lawyers in Los Angeles. Of them, there are perhaps 100 who possess the skills required to defend a death-penalty case. Of that number, perhaps 40 have what Tom Wolfe called "the right stuff": a combination of physical endurance, canny intellect, tactical brilliance and nerveless courage.
Of the 40 with the right stuff, there are 39, then there is Abramson.
In the small world where lawyers play for all the marbles--and clients die if they lose--Abramson is capital litigation's Chuck Yeager. When she is on stage, even her seen-and heard-it-all colleagues are awe-struck. Her performance in the Menendez brothers' murder trial was like watching the Navy's Blue Angels or the Air Force Thunderbirds--the anticipation of a 600-mph wipeout, followed by dumbstruck amazement that she actually might pull it off without spreading hamburger all over the tarmac.
I have known Abramson for 15 years, during which time we have been either staunch friends or staunch enemies, depending (mostly) on whether I agreed or disagreed with her on something of momentary importance. It is not difficult to be her admirer, but it requires the patience of Job and the endurance of Moses to be her friend. Abramson is a savant , as obsessed with criminal-defense law as Bobby Fischer was with chess, or Vladimir Horowitz with the piano. Anyone who does not see what she sees is, by her lights, a fool. At the moment, that no doubt includes Judge Stanley M. Weisberg, who is presiding over the Menendez brothers' trials.
Like many savants , Abramson can be an enormous pain outside her element; inside her element--the courtroom--she is a prosecutor's heart attack waiting to happen.
Some years ago, Deputy D.A. Steve Barshop, a tough trial lawyer in his own right, found himself facing Abramson in a murder trial by day and a failing marriage by night. In a master stroke, Barshop hired Abramson as his divorce lawyer, thereby ethically compelling him to withdraw from prosecuting the murder case, and saddling his ex-wife with a nightmare. The move became a legend in the district attorney's office.
Becoming a great criminal lawyer shares much with becoming a great actor. The experiences and personality traits in the lawyer's inventory are called upon to make the current role believable to the audience--in this case, the jury.
The summoning of past memories as tools of persuasion follow from years of daily practice in the art of public theatre, starting with dozens of misdemeanor trials as a public defender and arriving two decades later at the pinnacle where a single misstep means your client dies.
Abramson brought to the Menendez stage her peerless form of empathy and her unrelenting volcanic rage.
When Abramson argued Erik's case to the jury, it was not Kitty Menendez who was Erik's mother, it was Leslie Abramson. Hers was not the argument of lawyer to fact-finder, but the far more primal defense of cubs by their mother. For Abramson, Lyle and Erik Menendez are a modern-day Romulus and Remus. Jose and Kitty Menendez were wolves--not parents--who needed killing because they had turned on "the boys" (who are, of course, men). Not Jose's and Kitty's boys. Leslie's boys. That is why she picked lint off Erik's sweaters, brought them cookies and jumped down the throat of anyone who questioned whether the defendants actually were molested.
To a number of her colleagues, this is Abramson's patented "act." But to those who watch her with some regularity, it would be more accurate to say that her virtual "adoption" of murder clients is a self-induced delusional state--sustained not only by Abramson, but imposed on all around her, most especially the jury. In a way, watching Abramson try a death case is like watching Jack Nicholson act, and thinking, "Maybe he is that crazy."
In his numerous admonitions to Abramson to stop her "Jewish mother" schtick , the remark left unsaid by a sometimes droll Weisberg was, "Ms. Abramson, I believe your client has shown, in the most dramatic way possible, that he no longer needs a mother."
Abramson's second quality is her unquenchable rage. A government that kills is uncivilized. To Abramson, "gas chamber" does not mean San Quentin; it means Auschwitz. People who want to put Abramson's clients into the gas chamber are not prosecutors, they are Nazis.
Weitzman's victory made him, in most lawyers' eyes, the lawyer of the '80s. Abramson's stunning victory may well make her the lawyer of the '90s.