Erik Menendez Signals Split With Brother

Marking their first public split, Erik Menendez has asserted that he was afraid of his brother, Lyle, the night they killed their wealthy parents, and the younger brother’s lawyer wants the two tried separately, according to legal papers filed by prosecutors Monday.

Signaling that Erik Menendez may be turning on his older brother, prosecutors quoted a brief filed in April by lawyers for the younger brother saying it was crucial to his defense to prove the “theory that Erik was fearful of Lyle at the time of the alleged crimes.”

The defense filed the legal papers to bolster Erik’s bid for a separate trial. According to prosecutors who quoted from the brief, the defense contends that Erik was afraid because Lyle had threatened him.

Leslie Abramson, Erik’s lead attorney, could not be reached for comment. The brief that she filed in April has never been made public and could not be obtained Monday. Terri Towery, one of Lyle’s defense lawyers, declined to comment.

Prosecutors, who could not be reached for comment, are seeking a joint trial and said in legal papers that they filed Monday that the defense position is in sharp contrast to the united stand that Lyle, 26, and Erik, 23, offered at their lengthy first trial.

The prosecution’s legal papers ridiculed the notion that Erik “might portray Lyle Menendez as the mastermind who dominated him,” saying that was in “direct conflict” with the brothers’ testimony.

At the first trial, which ended in January, both brothers testified that they killed their parents in self-defense rooted in a deep fear of Jose Menendez, 45, and Kitty Menendez, 47. Wielding shotguns, the sons killed the parents in the TV room of the family’s Beverly Hills estate.

Each of the brothers said they lashed out after a lifetime of physical, psychological and sexual abuse. Not once in 10 days on the stand did Erik say he feared his brother.

Prosecutors contended that the brothers killed out of hatred and greed. The first trial ended in January when separate juries deadlocked between murder and lesser manslaughter charges.

Van Nuys Superior Court Judge Stanley M. Weisberg is due June 27 to set a date for the new trial. Weisberg is also due at that hearing to decide whether to conduct the retrial with one jury or two, or to have separate trials.

Both brothers remain in County Jail without bail.

Despite the appearance of solidarity that Lyle and Erik presented in the courtroom, the allegation that the younger brother feared not only the parents but the older brother was apparently entertained as a defense strategy point even before the first trial, according to the legal papers filed Monday.

The allegation was originally made in a brief that was filed by defense attorneys before the first trial, prosecutors disclosed Monday.

*

That defense brief, however, was filed under seal, meaning it was never available for inspection--and the allegation never became publicly known.

Two months ago, Abramson quietly filed a defense brief asking for separate trials.

The allegation that the younger brother feared the older did not surface until Monday, however, and then only in the brief filed by prosecutors, who said they had to respond to it--and quoted from the brief filed in April by Abramson.

Court clerks confirmed Monday that the motion was filed in April but said it could not be located at the Van Nuys courthouse.

At the first trial, the “most remarkable aspect of the defenses actually presented (was) how entirely harmonious they were, down to the smallest detail,” prosecutors said.

Urging Weisberg to conduct the second trial with one jury for both brothers, prosecutors added that the two “thought alike and acted alike at all times, and they agreed upon the role each played in the commission of the crime.”

In yet another brief filed Monday on behalf of Erik, Abramson and co-counsel Marcia Morrissey did not touch on the issue of fear. But they contended that Erik could only get fair treatment with a separate trial, or at least a separate jury.

*

Mostly, the lawyers said, that was because of potentially harmful evidence involving Lyle that might carry a “prejudicial spillover” and taint the younger brother.

Among that evidence, the defense lawyers said, was a new allegation--disclosed first last month by the prosecution--that in discussions with a family friend, Lyle “appeared to have considered various defenses before he opted for the one he finally advanced at trial.”

The prosecution contends those conversations took place before Lyle testified.

The younger brother’s lawyers retorted Monday that the conversations occurred after the testimony of both brothers and thus do not tend to show “consciousness of guilt, fabrication of evidence or fabrication of a defense.”

Other potentially damaging evidence, Erik’s lawyers said Monday, includes Lyle’s “attempt to suborn perjury, his arrogance, lack of remorse and extravagant spending after the death of his parents and his formulation of plans to escape from the county jail.”

The “attempt to suborn perjury” involves two of Lyle’s ex-girlfriends. One has testified that he offered to bribe her to lie for him at the trial. He purportedly wrote another with explicit instructions on how to testify, prosecutors contend.

The so-called “escape plans” were among papers seized by sheriff’s deputies from Lyle in County Jail.

The “plans” feature handwritten comments that include “What financial security will we have in the future” and “Can we blend in, how?”