Motion in Menendez Case Denied : Trial: Judge rejects argument that prosecutors should not be permitted to seek the death penalty against the brothers.

Attorneys for Lyle and Erik Menendez on Wednesday argued that prosecutors should not be permitted to seek the death penalty against their clients because the district attorney’s office chose to not seek it against O.J. Simpson. However, the judge in the case quickly ruled against the defense argument.

After the brothers’ lawyers argued that the two cases showed just how “arbitrary and capricious” the death penalty laws can be, Van Nuys Superior Court Judge Stanley M. Weisberg said the law in California is well-settled: It’s up to the prosecution to pick and choose the cases in which it seeks the death penalty.

The district attorney’s office has long made it plain that it wants Lyle Menendez, 27, and Erik Menendez, 24, on Death Row. The brothers are charged with first-degree murder in the Aug. 20, 1989, shotgun slayings of their wealthy parents, Jose Menendez, 45, and Kitty Menendez, 47.

The prosecution alleges that the brothers killed out of hatred and greed. The brothers admit the killings but say they lashed out in fear after years of abuse.

A first trial, which ended in January, 1994, concluded with separate juries--one for each brother--deadlocked between murder and lesser manslaughter charges. A retrial is scheduled to begin June 12.

In the Simpson case, prosecutors are seeking a lesser punishment--life in prison without parole in the June 12, 1994, killings of Nicole Brown Simpson and Ronald Lyle Goldman.

The Menendez defense, in a motion that repeated a point made informally for months, said that wasn’t fair. Outside court Wednesday, Leslie Abramson, Erik Menendez’s defense attorney, called it “gross political discrimination.”

The only perceived difference between the cases, the Menendez defense attorneys argued in a legal brief, is that Simpson is “a celebrity who has tremendous support in the black community, which provides a large number of voters who participate in elections for the office of district attorney.”

By contrast, the Menendez brothers, “formerly wealthy members of the community, no longer have wealth and certainly do not possess political value to anyone standing for election to the district attorney’s office inasmuch as there is a very small Cuban American community in Los Angeles County.” That reference is to Jose Menendez, who immigrated to the United States from Cuba.

In the legal brief, the defense also launched a broad attack on capital punishment, noting that California’s death penalty law has landed 408 inmates on Death Row as of April 1, and produced but two executions in the last 28 years.

“What is the solution? Is it to pick an ‘Aztec sacrifice’ every year in order to have a ritual execution such as we did with Robert Harris, in order to fill up the newspapers with execution stories and satisfy the voting public that retribution is being carried out?”

Harris was executed in April, 1992, for the murders of two San Diego teen-agers.

In the legal brief, the defense attorneys went on:

“Isn’t it time that responsible government leaders set an example for the state’s citizens that life is sacred? Children learn to do as they see their elders do, not to do what their elders just say. If we are to successfully teach that life is sacred, the state itself must treat all lives as sacred.”

Weisberg was unmoved.

“The court is satisfied that the system (of death penalty laws) as currently implemented in the state of California passes constitutional challenge,” he said, and denied the motion.

The next hearing in the case is Wednesday.