To Retry, or Not to Retry, Is the Question : Courts: If a second Menendez jury is hung, both sides will have to weigh how the panels split, and the costs and risks of another round.

The trial of the Menendez brothers provided great theater. But after more than six months in court, it apparently will have produced zilch in the justice column.

The Erik Menendez jury gave up two weeks ago, officially hung. The Lyle Menendez jury is due back in court Friday, having already announced that it is deadlocked in the case of the older of the Beverly Hills brothers charged with murder in the Aug. 20, 1989, shotgun slayings of their wealthy parents.

With the second jury seemingly on the brink of a mistrial, both practical and emotional factors will go into the decisions--of both the prosecution and the defense--on whether to seek a retrial or resolve the case with plea bargains.

On the practical side, there is the cost. For prosecutors, that means weighing whether taxpayers will support spending $1 million or more to stage a retrial. Defense attorneys, on the other hand, will have to decide if they are willing to work for county wages now that the Menendez estate apparently is all but spent.

Finances aside, however, there is the emotional stake each side now has in a case that drew a wide television audience.

Defense attorney Leslie Abramson, in particular, developed a national reputation by “winning” a hung jury--as many legal

experts termed it--in a trial in which the Menendez brothers admitted blasting away at their parents with shotguns and lying repeatedly to cover up their deed.

At the same time, prosecutors, who could barely conceal their disdain for Abramson’s in-your-face style, seem determined to expose what they view as a fabricated defense--the brothers’ tearful tales that they were sexually molested and thus killed in fear and self-defense.

A key factor in any decision will be the votes and reactions of the 24 jurors, one panel for each brother, who have spent the last half-year absorbing the defense and prosecution cases. The attorneys have already talked privately with the Erik Menendez jurors, but they--and the jurors--have been ordered to stay silent until the Lyle Menendez jury is done.

Whatever the jurors say, the two sides will have to decide whether the grind of a second trial is worth it.

“God, the thought of doing it all over again,” said Jack Earley, the Newport Beach lawyer who represented La Jolla socialite Elisabeth Anne (Betty) Broderick in both of her high-profile murder trials in the San Diego courts a few years ago. Her first trial ended in a hung jury, the retrial in two second-degree murder convictions.

“All of a sudden your life becomes that trial--again. . . . For months afterward, I was tired. No energy,” Earley said. “Would you want to do it again--for a county salary?”

Abramson, for one, seems ready. After the hung jury for Erik Menendez, she took to new levels her bold claim that the brothers were the real victims in the Menendez household and spoke of creating a national defense fund for Erik Menendez.

She also predicted that no jury would ever convict him of first-degree murder, and said she would be open to a plea bargain only if prosecutors agreed to a manslaughter conviction.

Some legal experts suggest that it would be in the public interest for Dist. Atty. Gil Garcetti to consider some sort of plea bargain.

“A lot depends on the numbers of the jury split in the two cases,” said UCLA law professor Peter Aranella.

“If you have three or more people in each jury holding out for voluntary manslaughter,” Aranella said, “that should really send a message to the prosecution that the chances of securing a unanimous verdict of first-degree murder on a retrial are not terribly high.”

Garcetti, however, was elected to office in part because of the perception that his predecessor, Ira Reiner, could not win big cases. On the campaign trail in 1992, Garcetti stressed that he was an aggressive, hands-on prosecutor; again and again, he told how, when he was directing the D.A.’s branch office in Torrance, he still prosecuted cases himself.

So it was in keeping with his character when, on Jan. 10, three days before the Erik Menendez case ended in a mistrial, Garcetti vowed to retry either--or both--of the Menendez brothers.

“If it’s a hung jury, regardless of how it’s hung, it will be retried as a murder case--because that’s what it is,” Garcetti said.

But if it turns out that the juries are split evenly--say 6-6 or 7-5 for first-degree murder--that will undoubtedly ratchet up the pressure on Garcetti to explore a plea bargain, legal experts said, in part because of the expense.

A second Menendez trial would cost taxpayers hundreds of thousands of dollars, at least.

Two years ago, a Los Angeles Superior Court study found that the pricetag for running a criminal trial was $9,459 per day.

“That $9,459 is fully loaded,” said Clemon Brown, financial management analyst for the court, meaning that it includes the costs of the judge and the lawyers, even court-appointed attorneys. It also includes other salaries, such as those of bailiffs and court reporters, and factors such as the utility bill.

But the $9,459 is only an average--and does not include extra costs of a death penalty trial.

Testimony alone in the Menendez trial consumed 85 days over five months. Using the 1992 figure, that adds up to $804,015.

The lawyers then presented closing arguments for six days--$56,754 more. The Lyle Menendez jury has been in deliberations for 24 days. That’s $227,016.

Those three sums total $1,087,785--for the trial.

There also were weeks of pretrial hearings and nearly five weeks of jury selection. And taxpayers picked up the tab for expert fees and various costs for the defense--presumably hundreds of thousands of dollars more. State law, however, requires that those costs remain sealed.

A second trial would cost even more because defense attorneys have said there is not enough of the Menendez estate, once valued as high as $14 million, to pay them.

Abramson and Jill Lansing, the brothers’ lead lawyers, have not publicly disclosed how much they were paid from the estate for the trial likely to end Friday.

Each brother has had a second lawyer--paid for by taxpayers, which is routine in death penalty case. Through Dec. 31, according to county figures, Michael Burt earned $267,625 defending Lyle Menendez, while Marcia Morrissey was paid $144,131 on behalf of Erik Menendez.

The usual rate for court-appointed attorneys in a death penalty case is $100 per hour.

But Reiner, the county’s former top prosecutor, said Wednesday that Garcetti is unlikely to compromise just because of costs and outside presssures. “There’s political pressure every day of the year in the D.A.’s office,” Reiner said. “That’s a fact of life. You don’t make decisions that involve justice on the basis of politics. I don’t care if that does sound corny. You just don’t do it. Certainly not on a case like this.”

Garcetti has already hinted that prosecutors have come up with new evidence that would help them in a retrial. In addition, legal experts said, the prosecution may have a slight advantage at a second trial because it has now gotten a good look at the unexpected defense based on child abuse.

“Think about the King case,” said Loyola law school professor Laurie Levenson, referring to the two trials of the four police officers charged in the beating of motorist Rodney G. King.

Prosecutors “were able to come back after 12-0,” a reference to the acquittals in the state trial in Simi Valley, “and win it”--with two convictions last year in Los Angeles federal court.

If Garcetti “believes this is a murder case and he has the evidence to prove it the second time around, that’s what he should do,” Levenson said.

“But he has to look at the realities. The realities include the fact of how jurors perceive the case. If the majority are not inclined to vote for a murder conviction, he has to look carefully at whether he should his use resources to go after the charge of murder.

“He really has to look at the realities.”