NEWS ANALYSIS : New Tactics Seen in Round 2 of Menendez Case

Even before the last Menendez jury passed one final note reporting deadlock, the prosecution and defense were plotting strategies for the expected retrial--guaranteeing that it will not be a simple replay of the grueling six-month trial that ended in a complete no-decision Friday.

Already, defense attorney Leslie Abramson was meeting with members of the first jury to give up, the one judging Erik Menendez, and gaining strength by learning how her bold strategy had struck a deep emotional chord in some of them.

Indeed, several women on the jury had become so enamored with Abramson and her argument--that the Menendez brothers were the real victims in their Beverly Hills household--that she was talking Saturday of having them join her as public advocates for the younger brother.

The prosecution, meanwhile, was digging up new evidence--and weighing provocative tactics--in an effort to win convictions the next time, again trying for first-degree murder.

The first go-around ended Friday with a pair of hung juries for Lyle Menendez, 26, and Erik Menendez, 23, in the 1989 shotgun slayings of their parents, Jose and Kitty Menendez.

Comments from jurors since then have made plain that prosecutors did not adequately counteract the aggressive, no-holds-barred defense typified by Abramson’s comment early in the trial: “Let the sleaze fly!”

So when a retrial is staged, probably in six months to a year, prosecutors are expected to be not so prim themselves. They have already given signs that they will hammer from the start at one theory--barely explored this time--that might better explain the family rift that led the Menendez brothers to blast away at their parents: homosexuality.

That is only one way prosecutors will change course in the wake of the hung juries, seen by legal experts and by defense attorney Jill Lansing as a clear defense victory. The lineup of witnesses, the presentation of critical evidence, jury selection--all may be different in the next go-round.

Already, three sets of juries--a grand jury and two trial juries--have refused to buy the notion that the brothers killed merely for greed. “Nobody on our jury believed they did it for money,” said Sharyn Bishop, 43, who was on the Lyle Menendez jury.

Rage and hatred were more believable motivations, jurors said. And the defense apparently gave the better explanation for those--that the “boys,” as defense lawyers constantly called them, had been molested by their father.

Only at the very end of the trial did the prosecution suggest that the conflict may have involved sex, but hardly the way the defense portrayed it. In his closing argument, Deputy Dist. Atty. Lester Kuriyama suggested that Erik Menendez was gay, and that his sexual orientation--not abuse by his parents--fed a family friction that led to the slayings.

Kuriyama conceded that the evidence backing his claim was thin. But what jurors did not know was that Van Nuys Superior Court Judge Stanley M. Weisberg--for unexplained reasons--had largely blocked the prosecution from exploring the sensitive issue with witnesses.

Even so, the mentions were not lost on jurors.

In interviews Saturday at Abramson’s office with selected reporters, female members of the Erik Menendez jury said they spent weeks arguing over his sexual orientation.

The men on the panel, the female jurors said, were fascinated by the issue. One suggested the brothers were homosexual lovers.

According to one account, one of the female jurors called the allegations of homosexuality “the last straw for the prosecution. They couldn’t prove hatred or greed. So they played this dirty little trick at the end and the guys fell for it.”

Legal experts said comments like that underscore the risk in presenting such evidence.

“It would, and should rightfully turn off jury members who feel this boy is being lambasted because he’s gay or the personal details of his life are being thrown in gratuitously,” said Robert Pugsley, a Southwestern University law professor.

But prosecutors insisted that there is nothing gratuitous about it.

“The reason the murders occurred is because the parents had had it with their children and were no longer going to support them as in the past,” Deputy Dist. Atty. Pamela Bozanich said. “We are convinced the father was very upset about Erik’s possible homosexuality . . . as well as Lyle’s spending and failures at (Princeton).

“The brothers simply couldn’t stand the idea of not continuing to live the way they had before and also harbored a great deal of resentment and hatred toward their parents,” Bozanich said.

She added: “There will be efforts made to admit evidence of Erik’s homosexuality. We will continue, with vigor, those efforts.”

Several factors, however, remain uncertain: First, persuading a judge to let them introduce such evidence. Then, critically, what evidence?

The past few weeks it became common knowledge around the courthouse that Vanity Fair magazine is about to publish a suggestive photo of Erik Menendez.

Perhaps the best indicator that this will be a serious issue at the retrial has been the reaction of the emotional leader of the defense, Abramson.

During the trial, she belittled the prosecution’s scattered suggestions that Erik Menendez was gay as “disgusting.” But, after the trial was over, she was ready with a more substantive response, telling a TV interviewer--without agreeing that Erik Menendez is gay--that it is just as bad to rape a homosexual as anyone else.

Aside from the issue of homosexuality, legal experts said, the second trial likely will feature a series of new battlegrounds:

* Jury selection will become a war. Having had the advantage of seeing how different jurors reacted this time, both sides know just who they would like to hear the next case. And it’s hardly a mystery.

The prosecution, noted UCLA law professor Peter Arenella, wants “working-class white males.” The defense will want women, and “preferably women who in some sense have some direct experience, either themselves or with others, with people hurt or abused--which, in this society, is a lot of women.”

* The prosecution will fight not to be outflanked by the defense. In the first trial, that happened with several key pieces of evidence, as when the defense got to play first for jurors the tape of a counseling session the brothers had with their psychologist, L. Jerome Oziel--in which Lyle Menendez compared missing his dead parents to missing the family dog.

By playing the tape first--after trying to keep it secret--the defense was able to put its own spin on it. They had an expert tell jurors that when Lyle and Erik Menendez used the word “mother,” for instance, they really meant “brother,” as when Lyle said: “My father should be killed. There’s no question . . . he’s impossible to live with for myself . . . based on what he’s doing to my mother.”

* Some witnesses who played starring roles the first time may have cameos, at best. That means Oziel, according to legal experts. He was a key prosecution witness at the first trial, but became a punching bag for the defense.

* The prosecution is almost guaranteed to use its own expert witnesses on the mental state of the brothers, something it did not do at the first trial. The defense presented half a dozen such experts, who said the brothers’ tearful tales of abuse were believable.

Bozanich belittled such testimony as “psychobabble” not worthy of a response. But only half the jurors saw it her way.

“Even if you think that opposing experts are providing ludicrous testimony, it’s necessary to provide your own experts, to give the jury an alternate theory,” said Ronald Markman, a lawyer and psychiatrist.

But if the jurors are like those about to hit the TV talk shows, some will be hard to sway. Take Betty Burke, an alternate on the Erik Menendez jury who came to Abramson’s office to meet with a few reporters. An account quoted her as saying, “I went home thinking, ‘I could kill Jose myself.’ ”

For the defense, the challenge of a second trial is clear: in recounting their tales of abuse, the brothers must once again summon the emotional pain that proved so compelling to many jurors.

Dist. Atty. Gil Garcetti said he was confident that would not happen. “I do not believe the emotional pull will be there,” he said. If it is, he added, the brothers are “better actors than even I thought they were, if they can pull it off a second time.”

Lansing, Lyle Menendez’s attorney, promised his testimony would be just as riveting: “He has quite a wellspring of pain to draw on.”