Judge Clears the Way for Use of Menendez Tape : Courts: Brothers confess to killing parents in recording of therapy session. Defense had claimed confidentiality.

The judge in the Menendez brothers murder case cleared the way Friday for prosecutors to present the most explosive evidence from the first trial, the tape recording in which the brothers confess they killed their parents.

Van Nuys Superior Court Judge Stanley M. Weisberg rejected the defense claim that the contents of the tape--recorded Dec. 11, 1989, by the brothers’ therapist--had once again become secret under the rules of psychologist-patient confidentiality that usually apply to therapy sessions.

The defense bid was based on technicalities in the rules of court evidence. Although it was the defense that played the tape at the first trial, the brothers’ attorneys insisted Friday that the rules gave Lyle and Erik Menendez the right to resurrect a claim of secrecy at the retrial.

But Weisberg said that when the tape was aired at the first trial, any secrecy was ended.

It remains unclear when the tape will be played again for jurors. A start date for a new trial remains bogged down over the issue of how much of the brothers’ testimony will be presented at the retrial.

After asking Friday for more legal briefs, Weisberg scheduled an Oct. 27 hearing to pick a start date. He said he also will decide then whether the retrial will be before one jury or two, one for each brother.

Meanwhile, it was evident Friday that the Menendez trial, which had been the preeminent court drama in Los Angeles and across the nation, has lost the spotlight to the O.J. Simpson murder case.

For the first time in months, there were a few empty seats in the courtroom. Court TV, which was covering Friday’s hearing live from Van Nuys, switched to the Simpson case, then came back to the Menendez case.

But the brothers still drew the usual crowd of about a dozen avid supporters. “Nice shirt,” someone called to Lyle Menendez, 26, who sported a new plaid dominated by blues and greens. Erik Menendez, 23, wore a new red shirt.

“God, they look good,” another supporter said.

Both brothers remain in County Jail without bail. They face first-degree murder charges in the Aug. 20, 1989, shotgun slayings of their parents, entertainment executive Jose Menendez, 45, and Kitty Menendez, 47.

At the first trial, which began one year ago this week and ended in January, separate juries deadlocked between murder and lesser manslaughter charges.

The brothers admit to killing their parents in the TV room of the family’s Beverly Hills mansion. But they testified that they lashed out only after years of abuse.

Prosecutors, who are seeking the death penalty, contend that the brothers killed out of hatred and greed.

On the Dec. 11, 1989, tape, the brothers tell psychologist L. Jerome Oziel that they killed their mother to put her “out of her misery” and that their father’s infidelity caused her despair.

On tape, the brothers present the killings as far from a spur-of-the-moment act of self-defense. Lyle Menendez told Oziel: “There was no way I was gonna make a decision to kill my mother without Erik’s consent. I was going, I didn’t even wanna influence him in that issue. I just let him sleep on it for a couple days.”

The 61-minute recording also includes a comment from Lyle Menendez that he missed his parents but also missed “not having my dog around.” That comment set off gasps in the courtroom.

At the start of the first trial, prosecutors asked Weisberg to order that the tape be released.

He did so near the end of testimony, saying that the brothers had opted to make their mental state a central issue in the case. By doing so, he said, they erased the protection of the rules of confidentiality.

In a preemptive strike, the defense then played the tape for jurors.

Prosecutors have made it plain that they plan to play the tape early in the retrial and refer to it often. “It’s a very difficult piece of evidence for the defense to explain away,” Deputy Dist. Atty. David Conn said Friday outside court.

The tape also offers prosecutors the tactical advantage of not having to rely on Oziel’s testimony. The therapist, who was the prosecution’s chief witness at the first trial, became the target of a relentless cross-examination.

The defense contended Friday that the tape had once again become confidential. Until the brothers take the stand again to discuss their emotions the night of the killings, the defense contended, their mental state is not an issue.

Defense lawyer Leslie Abramson, Erik Menendez’s attorney, promised an appeal. Weisberg, she said after the hearing ended, “will only change his rulings to favor the prosecution. He will not change his rulings to favor the defense.”