Imminent Danger Defense, Used in Menendez Case, Is Upheld

The California Supreme Court, ruling on the type of defense employed by the Menendez brothers, held Monday that defendants can escape murder convictions if they kill out of an honest but mistaken conviction that their lives are in imminent danger.

The court’s 5-2 decision on a case out of Orange County allows murder defendants to be convicted on lesser charges if they feared imminent harm from their victims. The doctrine upheld by the court, known as the “imperfect self-defense,” is widely employed, particularly by battered wives.

Lyle and Erik Menendez, who are facing new trials for the murders of their parents, argued that they feared for their lives after years of physical and emotional abuse.

“Fear of future harm--no matter how great the fear and no matter how great the likelihood of the harm--will not suffice,” wrote Justice Marvin Baxter for the majority. “The defendant’s fear must be of imminent danger to life or great bodily injury.”

Without that defense, judges would be required to instruct juries to convict defendants of murder unless the killing occurred in clear self-defense or in the heat of passion.

Leslie Abramson, attorney for Erik Menendez, said the decision reinforces her client’s right to assert that defense in his retrial. She said he and his brother had an “understandable” and imminent fear for their lives after they had threatened to make public their father’s alleged sexual abuse.

The defense lawyer praised the court’s ruling for making clear that such defenses have been used for decades.

“People seem to think that this was some sort of designer defense that was recently made up,” she said. “It clearly was not. . . . (The court) recognized that non-criminals kill.”

A state legislator has introduced a bill that would write into law the acceptability of the defense. The bill would codify a 1979 California Supreme Court decision that an honest, albeit unreasonable, fear of imminent danger negates the mental state of malice aforethought necessary for a murder conviction.

Prosecutors had contended that such defenses were barred under a 1981 state statute and the 1982 Victims Bill of Rights initiative. Chief Justice Malcolm Lucas, joined by Court of Appeal Justice Robert K. Puglia in a dissent, agreed with prosecutors that the Legislature abrogated the defense in 1981.

“No court, not even a supreme one, may create new defenses or revive abrogated ones simply as a matter of policy or preference,” Lucas wrote.

In the Orange County case before the court, a 16-year-old Dana Point boy shot and killed a reputed gang member who chased him on the beach after threatening and harassing him for a year.

A judge convicted the boy of second-degree murder, but a Court of Appeal in Santa Ana reduced the conviction to manslaughter. The court held that the defendant, Christian S., had an “honest but unreasonable fear of immediate harm” when he shot reputed skinhead Robert Elliott.

Deputy Atty. Gen. Garrett Beaumont, who had argued that such defenses are barred, said he was disappointed with the decision. He noted, however, that the court did not seem to favor an expansion of the defense.

“They want to make sure it is not expanded to allow somebody to use the doctrine if they are not in fear of imminent danger to their life or great bodily injury,” he said.

The attorney for Christian S. could not be reached for comment.