Significant Shifts Expected in Retrial of Menendez Brothers : Courts: Battles are likely over judge’s plan to sharply limit claims that the defendants acted after years of abuse. The proceeding, set to begin Wednesday, won’t be broadcast live.

The changes begin with the cosmetic and extend to the profound.

Erik and Lyle Menendez, who favored sweaters during their now-famous first trial in a bid to make themselves look younger and warmer, have appeared in court for the last year in shirts and ties--reflecting the fact that they are now 24 and 27.

When the brothers’ retrial for the murders of their parents begins Wednesday in Van Nuys Superior Court, Court TV won’t be broadcasting the case live, as the cable network did during the first trial.

Prosecutors, no longer surprised by the brothers’ provocative defense, promise a tougher approach to assertions that the two were abused by their parents and killed out of fear. Judge Stanley M. Weisberg says he intends to sharply limit the defense case. And the brothers’ fate will be in the hands of one jury, not two.

Nevertheless, the broad outlines of the case remain the same. Prosecutors claim the brothers killed their wealthy parents, Jose and Kitty Menendez, on Aug. 20, 1989--six years ago Sunday--out of hatred and greed. The brothers say they lashed out in a panic rooted in years of abuse.

And, like the first trial in 1993, the retrial promises to again focus attention on the issue that captivated the nation and that Lyle Menendez once framed in a letter he wrote to his brother after both were jailed: To what extent are admitted killers responsible for their actions?

“We alone know the truth,” Lyle Menendez said in the 17-page letter, written in 1990 but not disclosed in full until just this year in legal briefs filed by the defense. “We alone know the secrets of our [family’s] past. I do not look forward to broadcasting them around the country. I pray that it never has to happen.

“If it were not for you, I doubt I would even try for manslaughter. I would rather try and escape or die. I struggle with my belief that men take responsibility for their actions. Pleading abuse is not taking responsibility.”

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Apparently having overcome such doubts, the brothers have based their entire case on a plea of abuse. Such a strategy, lawyer Leslie Abramson said after winning approval Aug. 1 from Weisberg to put the defense on again, is “absolutely authentic and appropriate and legal and real.”

It also, as prosecutors learned during the first trial, packs a potent emotional punch that polarized jurors at the first trial.

At that proceeding, the defense put on weeks of testimony from the brothers’ teachers, coaches and friends, who painted a portrait of the Menendez house as a grim place where hugs or smiles were rare.

Then the brothers took the stand and sobbed while recounting the years of sexual abuse they allege they suffered--Lyle Menendez from age 6 to 8, Erik Menendez from 6 to 18.

On the night of Aug. 20, 1989, the brothers testified, they believed their parents were about to kill them rather than allow the years of abuse to be revealed to outsiders. So, they said, they grabbed shotguns and killed the parents first, blasting away in the TV room of the family’s Beverly Hills mansion.

Weisberg ruled Aug. 1 that he did not intend to listen to the same parade of teachers, coaches and friends. The retrial, he said, “will not include the minutiae introduced by the defense at the first trial.”

What remains to be seen, however, is just how much of the parade does take to the stand again.

“By opening the door to it in the first place,” said Southwestern University law professor Robert Pugsley, who has closely followed the Menendez case, Weisberg “has opened himself up, in my view, to an endless series of skirmishes about what can come in and what can not. I think it is safe to predict we will see a fight every inch of the way.”

Deputy Dist. Atty. David Conn concurred: “That’s going to be the challenge, to see to it that [Weisberg] does hold to it,” meaning the Aug. 1 ruling.

During his portion of the case, the prosecutor said, he intends to stress a simple, broad theme, which the prosecution did not do at the first trial: Even if the brothers were abused, so what?

No matter what happened, Conn continued, was it still “necessary,” as the law demands to reduce murder to manslaughter, to kill the parents? “There’s no way . . . that was so,” Conn asserted.

For instance, Conn said, the prosecution intends to put on new aerial photos of the Beverly Hills house, new diagrams, even new videos showing the path the brothers took to go outside for their guns, dash back inside, blast through the doors to the TV room, shoot, bolt back outside, reload, run back inside and--in the case of Lyle Menendez--shoot again.

“Any juror would have to wonder how the defendants would claim it was necessary to kill their parents under these circumstances,” Conn predicted.

Aside from the addition of a single theme, the most significant change to the prosecution case involves the subtraction of a witness: psychologist L. Jerome Oziel.

At the first trial, the therapist was the prosecution’s chief witness, testifying that the brothers confessed the killings to him on Oct. 31 and Nov. 2, 1989.

He then, however, endured a withering cross-examination designed to undermine his credibility, most of it dealing with the intimate details of a stormy extramarital affair. During the defense case, his onetime paramour, Judalon Smyth, took the stand and offered even more tawdry details--such as the IOU she once made him for 500 sex acts.

Prosecutors made it plain months ago that Oziel would not be called at the retrial.

Instead, Conn said the prosecution plans to offer only an audiotape that the brothers made with Oziel on Dec. 11, 1989, in which they said they killed their mother to put her “out of her misery” and their father deserved to die because his infidelity had driven her to despair.

That tape surfaced late in the first trial, and the defense played it as a preemptive strike. Weisberg has ruled that prosecutors can play it during presentation of their case at the retrial.

That tactic, however, carries a different set of risks--and the potential to transform the direction of the second trial, according to legal experts.

The prosecution bears the burden of proving not only that the parents were killed but that the sons did the killing, Pugsley pointed out. Even though it’s no secret who did the killing, the law still demands that the prosecution prove in court that it was Erik and Lyle Menendez, Pugsley said.

At the first trial, Oziel provided that proof. Without him, prosecutors must rely on other evidence.

The brothers’ testimony from the first trial poses a tricky legal problem. Under the highly technical rules of evidence, the defense has the right to explain why the brothers confessed by putting it in the context of all their other testimony.

The Dec. 11, 1989, tape, meanwhile, does not contain a flat-out statement by either brother of what happened in the TV room.

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However, an ex-girlfriend of Lyle Menendez’s did testify at the first trial that he confessed to her. The ex-girlfriend, Jamie Pisarcik, is expected to testify at the retrial.

Prosecutors will also be able to show once again that the brothers used a driver’s license belonging to a onetime roommate of Lyle Menendez to buy the shotguns they used in the killings.

Defense attorneys maintain that leaves the prosecution with thin proof. Deputy Public Defender Charles A. Gessler, Lyle Menendez’s chief lawyer, went so far a couple of weeks ago in court as to label the case a “whodunit.”

Assuming, however, that the prosecution proves to Weisberg’s satisfaction that the brothers killed their parents, the defense may yet have a surprise in store.

Enough hints have been dropped recently in court, for instance, that Conn said prosecutors have been preparing for the possibility that the defense will seek to offer videotapes of the brothers’ tear-laced appearances on the stand from the first trial--in place of live testimony of one or both brothers.

Defense attorneys remain discreet. “I’m not playing games,” Gessler said last week. “I honestly don’t know until I see [the prosecution] case.”

The primary advantage to the defense of such a tactic, Pugsley noted, is plain: no cross-examination.

But there’s a more subtle angle at work, Pugsley said. At the first trial, the prosecution did not produce any expert witnesses to rebut psychologists for the defense, who said that the years of abuse had left the brothers prone to impulse on the night of Aug. 20, 1989.

For the retrial, the prosecution has lined up Dr. Park Dietz, the Newport Beach forensic psychiatrist whose testimony helped convict Wisconsin cannibal Jeffrey Dahmer, Long Island serial killer Joel Rifkin and La Jolla socialite Elisabeth Anne (Betty) Broderick, among others, of murder.

Weisberg, however, has ruled that Dietz cannot interview the brothers unless they put their mental state at issue--as they did in the first trial by testifying and then calling psychologists to explain their testimony.

“Not to trivialize it, but it’s somewhat like a chess game, with each side responding to the moves the other side makes,” Gessler said.

Opening statements should begin in four to six weeks. Added Conn: “It’s going to be a different trial.”