Poll Cited in Menendez Request for Two Trials : Courts: Most view Lyle as the leader, defense says. But majority thinks both brothers are guilty of first-degree murder in their parents’ slayings.

In a highly unusual bid to get separate trials for Lyle and Erik Menendez, defense lawyers recently commissioned a telephone poll of potential jurors and plan to argue Monday in court that the results prove the brothers cannot fairly be tried together.

Defense lawyers are so determined to get separate trials that they included the poll results in court filings even though a majority of those who responded said they believe the brothers are guilty of first-degree murder.

About 345 of the 800 potential Los Angeles-area jurors who were surveyed last month identified Lyle Menendez as the leader or mastermind of the Aug. 20, 1989, shotgun slayings of the brothers’ wealthy parents, simply because he is the older sibling.

If that group in the poll blamed Lyle Menendez more just because he is older, it is “asking more than most mortals are capable of” to expect 12 jurors to judge the brothers separately if they are tried together, defense lawyers said in legal briefs.

“It’s very unusual,” Southwestern University criminal law professor Robert Pugsley said of the defense tactic. It shows, he added, “how seriously (defense lawyers) are gearing up for the next trial and coming in with all their resources blazing, as it were,” even at the risk of introducing damning material.

The retrial is scheduled to begin June 12. Van Nuys Superior Court Judge Stanley M. Weisberg is due at a hearing beginning Monday to decide whether the brothers should be tried together or apart.

At the first trial, which lasted six months, the judge opted for separate juries, one for each brother. The case was presented to both panels at the same time. It ended in January, 1994, with each jury deadlocked between murder and lesser manslaughter charges.

The brothers admit that they killed their parents, entertainment executive Jose Menendez, 45, and Kitty Menendez, 47, in the TV room of the family’s Beverly Hills mansion. They testified that they lashed out in fear after years of abuse. Prosecutors say the brothers killed out of hatred and greed, and are seeking the death penalty.

The brothers were 18 and 21 when they killed their parents. Erik Menendez, now 24, and Lyle Menendez, 27, have been held in County Jail for more than five years and remain there without bail.

Weisberg has indicated several times at hearings in recent months that he will not again use two juries at a single trial, believing it presented overwhelming logistics hassles.

Prosecutors David Conn and Carol Najera have said repeatedly that they want a single trial.

Hoping, however, to provide Weisberg with evidence that two trials would be a better option, defense attorneys commissioned the phone survey. According to court papers, it was conducted Feb. 2-25 and targeted 800 possible jurors in the areas served by the Downtown, Santa Monica and Van Nuys courthouses--the likely sites of the next trial.

It was conducted by the National Jury Project in Oakland and J.D. Franz Research of Sacramento. Details of the methodology, including the margin of error, were not included in the court filings.

Of the 800 people surveyed, 784, or 98%, said they had read, seen or heard of the case.

Those 784 were asked whether one of the brothers “was more of a leader than the other brother,” generating 456 “yes” or “maybe” responses.

That subgroup of 456 was then asked: “As you may recall, Lyle is the older brother and Erik is the younger brother. Which brother do you think was more of a leader than the other?”

To that question, 75%--roughly 345, no exact figure was provided--answered “Lyle.” Another 5% answered “Erik.” The others answered “don’t know” or “both or neither.”

Those results, defense attorneys asserted in legal briefs, bore out their “common-sense belief” that “commonly held assumptions about the roles of siblings in a family might well be used to hold Lyle Menendez more accountable.”

Some pollsters said Friday, however, that the key question may have been improperly suggestive. “They perhaps could have asked the question in a more objective way,” Calabasas pollster Arnold Steinberg said. Without identifying an older or younger brother, he explained, “They could have said both brothers’ names and said, ‘Which is the leader?’ ”

Prosecutor Conn said he wanted to see the raw poll data before commenting on the survey.

Defense attorney Leslie Abramson, who is Erik Menendez’s lead lawyer, and Deputy Public Defenders Charles Gessler and Terri Towery, who represent Lyle Menendez, could not be reached Friday for comment.

In the legal brief filed in Van Nuys Superior Court, defense lawyers didn’t address the other findings in the poll. They include:

* 65% said Lyle Menendez is guilty of first-degree murder in the killing of his father, 61% in the killing of his mother.

* 54% believe Erik Menendez is guilty of first-degree murder in the slaying of his father, 51% in the slaying of his mother.

* 29% believed that Lyle Menendez deserves the death penalty and another 29% say he should go to prison for life without parole.

* 24% believe Erik Menendez should be executed and another 27% say he should be jailed for life.