VAN NUYS : Menendez Judge Sets Criteria for Defense Evidence

Taking up the issue of whether the Menendez brothers will go back to trial together or separately, the judge in the case ruled Wednesday that he could not consider evidence from secret defense witnesses unless the material is first shared with prosecutors.

That evidence, defense attorneys said, would be offered only if Erik Menendez, 24, and Lyle Menendez, 27, are convicted of first-degree murder in the Aug. 20, 1989, shooting deaths of their parents--and then only if the brothers are tried separately.

That, defense lawyers added, was because the testimony of those witnesses might be helpful to one brother but harmful to the other. What that evidence is--and the identities of those witnesses--remain unknown because defense attorneys filed descriptions under seal, Van Nuys Superior Court Judge Stanley M. Weisberg said Wednesday.

Prosecutors, who also are barred from seeing the documents, complained to Weisberg that it would be unfair to them if he were to take the sealed materials into account in ruling on the critical issue of one retrial or two.

Weisberg ruled Wednesday that prosecutors were right, and said he would not consider those documents unless defense attorneys reverse their position and make them available to prosecutors. The judge added that he would decide the issue of separate retrials on March 27.

At the brothers’ first trial, which ended in January, 1994, separate juries deadlocked between murder and lesser manslaughter charges. The brothers remain in custody without bail.