Menendez Lawyers Seek a Halt to TV Films : Blackout: Attorneys want to prevent a screening in L.A. County, fearing jury bias. Legal precedents make effort unlikely to succeed.

Attorneys for the Menendez brothers, hoping to ensure a fair retrial for their clients, are making a desperate effort to prevent Los Angeles residents from seeing a two-hour television movie about the sensational shotgun killings of Jose and Kitty Menendez that Fox plans to air next Monday night. The lawyers are even more up in arms over a four-hour miniseries on the subject that CBS has scheduled in May.

Lyle Menendez’s new public defenders are expected to file an injunction in federal district court today to prevent the Fox Broadcasting Co. from airing “Honor Thy Father and Mother: The True Story of the Mendendez Murders” in Los Angeles County, where Lyle and Erik Menendez will stand trial again for the 1989 murders of their Beverly Hills parents. In January, mistrials were declared because separate juries for each brother could not agree on verdicts.

Deputy public defenders Terri Towery and William D. Weiss--along with Leslie H. Abramson, attorney for Erik Menendez--fear their clients will suffer irreparable harm when potential jurors for the retrial see “Honor Thy Father and Mother,” which they perceive to be a pro-prosecution docudrama loaded with inaccuracies.

“We will seek to show that the falsities in the script will damage the potential jury pool and so taint it that we will not be able to get a fair trial,” said Towery on Friday. She intends to file a similar injunction next month against the CBS miniseries, “Menendez: A Killing in Beverly Hills,” starring Edward James Olmos and Beverly D’Angelo as the parents.

The lawyers face legal precedents that show that any effort to block television broadcasts is unlikely to succeed.

Last week, the Mendendez attorneys sent a hand-delivered letter to Gary Hoffman, Fox’s vice president of movies and miniseries, strenuously objecting to “Honor Thy Father and Mother” based on the second draft of a script they had read.

Fox refused their request not to air the TV movie, citing numerous legal precedents involving prior restraint, when the media’s First Amendment right to free speech was upheld over a defendant’s Sixth Amendment right to a fair trial. The last major decision occurred in 1987, when “Billionaire Boys Club” founder Joe Hunt failed to prevent NBC from airing a docudrama about his gang of wealthy thrillseekers when Hunt was appealing a murder conviction and awaiting trial in another murder case.

Legal authorities acknowledge that TV projects torn from the headlines can be powerful in swaying public opinion, but have dealt with that. During jury selection for the first trial, the judge excluded the use of any jurors who had seen tabloid TV re-enactments of the killings.

“The longer away they are from the actual trial date, the less likely there will be an impact” by the Fox and CBS docudramas, said Laurie Levenson, a Loyola Law School professor in Los Angeles. A Superior Court hearing Friday will determine when the Menendez retrials will take place--probably at least a year from now.

“However, it means there really has to be a very close examination of the prospective jurors to determine what kind of exposure they have had to all types of pretrial publicity,” Levenson said. “The movies just add to the burden that will be involved in getting a fair jury for the retrial.”

Bob Pugsley, a professor of criminal law at Southwestern University School of Law in Los Angeles, said public opinion is colored by all coverage of the criminal proceedings--including the trial itself, which was carried live each day like a soap opera on some broadcast stations and the cable channel Court TV.

Pugsley said the live court coverage enabled Abramson to polarize public opinion, which was weighing heavily against the brothers at the time, with a defense that wrapped Erik Menendez in the “mantle of sexually abused children everywhere.” He also noted that Abramson herself made the rounds on network news programs to publicize her personal perspective after the first trial.

“She went on with what she called ‘her’ jurors, those who were on her side,” Pugsley said. “Other times she went on with her newly adopted infant. During the course of the trial, she adopted a baby, and on some TV appearances she brought the baby, cuddling and cooing on the program. My only point is that the media has been a carrier of all messages, both sympathetic and antagonistic to the brothers’ case.”

Still, Abramson calls Fox and CBS unconscionable for planning to broadcast an account of events that she perceives to be strongly biased against Lyle and Erik Menendez, who could face the death penalty if they are convicted of murder.

“The power of these entertainment creeps to completely position the public view when these boys’ lives are depending on public opinion is just appalling,” Abramson said. “If they stuck with public record, at least they could produce an unbiased account and let the public decide. But they’re not willing to do that. They’re insisting on a vicious fictionalization of everything that bolsters the prosecution case--nothing else exists. There’s no favorable fictionalization of the defense and the defendants.”

The Menendez attorneys attack “Honor Thy Father and Mother,” for example, for portraying Jose and Kitty Menendez sitting on the couch eating blueberries and ice cream at the time they were shot, although a prosecution expert acknowledged it would have been impossible for the couple to have suffered the wounds they did unless they were standing. The depiction hurts the Menendez brothers’ position that they acted in self-defense, their attorneys claim.

The producers of both docudramas defend the objectivity and balance of their work, and point out that their projects dramatize examples of parental abuse the Menendez brothers say they suffered. The producers believe the defense attorneys have early versions of their scripts, which went through many revisions and then further changes during filming and editing.

“Honor Thy Father and Mother” is based on the book “Blood Brothers” by Los Angeles Times reporter John Johnson and former Times reporter Ronald Soble, who has said in interviews that he believes the brothers are guilty of murder. But Hoffman at Fox said the public record was the true measuring stick for the movie, which dramatizes the highlights of the trial and some key points in the lives of the family that led the killings.

The TV movie began shooting in January when the trial was still going on. “So the story had to be jury proof,” Hoffman explained. “We had an ongoing trial. I did not want to be in a position of advocating something, a viewpoint, which may not be in agreement with the jury. In other words, if we took a position that the boys deserve to be convicted of murder, and the jury deadlocked, I didn’t want to be involved with a movie that was rewriting history.”

Terry Moran, Court TV’s on-site reporter for the Menendez trial, will host a commentary and critique of “Honor Thy Father and Mother” tonight on Court TV, including a comparative analysis of fictional and authentic trial footage.

“I think it’s a pretty fair movie,” said Moran, who has seen an early videotape of the film, which Hoffman says is slightly different than the final version. “But at crucial points, where a choice had to be made over contested evidence--when the prosecution and the defense had differing opinions--the movie consistently chooses to take the prosecution’s point of view.”

CBS, meanwhile, has just finished its miniseries based on the contributions of Dominick Dunne, who did some scathing reporting for Vanity Fair, and the story of Judalon Smyth, the former lover of the Beverly Hills psychologist to whom Erik Menendez confessed the shootings.

Zev Braun, producer of the CBS program, does not hide his feelings about the killings. “My belief is they’re guilty of murder in the first degree,” he said. But he added, “I would like to believe that our miniseries takes an objective point of view. We tried to objectify it by sticking to public record, court record and police record.”

Braun said CBS Entertainment President Jeff Sagansky was concerned when the trials resulted in two hung juries, and he even considered holding the miniseries back. “But ultimately everything has already gone public,” Braun said.

“A Killing in Beverly Hills,” scheduled to air May 24 and 25 on CBS, did revise its ending as a result of the hung juries by going behind closed doors and fictionalizing jury deliberations. “This country is torn--there’s a lot of people who feel a great deal of sympathy for the brothers,” Braun said. “The two juries were split evenly. They are a sort of microcosm of America, or a Greek chorus, if you will. So we go in and see the struggle that 24 angry Americans are having, trying desperately to do the right thing.”