Defense Seeks to Show Lyle Menendez Tape : Courts: Erik Menendez’s attorneys want to show brother’s testimony from first trial. Lyle might not testify at retrial.

Erik Menendez’s attorneys sought Monday to play a video of the tearful testimony of older brother Lyle Menendez from the brothers’ first murder trial. The move, if successful, would create an odd scene at the Menendez brothers’ retrial, with the real Lyle sitting silently at the defense table while jurors view his earlier testimony on a television screen.

Defense attorneys Leslie Abramson and Barry Levin filed a motion on behalf of Erik Menendez seeking his older brother’s testimony amid indications that Lyle Menendez will choose not to take the stand. Lyle’s story is crucial to Erik’s case because it corroborates Erik’s contention that the brothers killed their parents out of fear.

If Erik Menendez’s motion succeeds, it means that Lyle’s testimony from the first trial won’t be communicated to jurors from dusty stacks of legal transcripts.

Instead, the defense seeks to bring in every tear and sigh as recorded by Court TV cameras. Court TV broadcast the first trial live, but Van Nuys Superior Court Judge Stanley M. Weisberg pulled the plug on the camera at the retrial, which began in October.

“While prior recorded testimony used to mean reading transcripts, which is pretty boring, now the jury can hear the words and see the demeanor. It has a very powerful impact,” said Loyola Law School professor Laurie Levenson.

Added UCLA law school professor Peter Arenella: “This is a great way for Lyle to get favorable testimony before the jury.”

The compelling testimony of a sweater-clad Lyle Menendez during the first murder trial was regarded as a dramatic highlight and a factor in two deadlocked juries.

Arenella said playing the tape of that testimony would give the brothers’ defense “a great tactical advantage” by sparing Lyle Menendez from cross-examination over potentially incriminating statements he has made since the brothers’ first trial ended two years ago.

This time, both brothers are being tried before a single jury, and Erik Menendez, 25, is on the stand, testifying on behalf of himself and his older brother.

In their motion Monday, Erik’s attorneys said that Lyle “has indicated that he probably will not testify.” Lyle’s account is crucial to Erik’s defense, the motion said, because Erik’s testimony “has already come under vituperous attack by the prosecution.”

Prosecutor David Conn said he will object to much of the videotaped testimony as irrelevant, but legal experts said they expect a substantial portion of the older brother’s prior testimony would be permitted. The only real question, they said, is through which medium: printed transcripts or videotape.

Abramson said she had planned to call Lyle, 27, to the stand as a witness for Erik in early January. But Lyle’s attorneys, Charles Gessler and Terri Towery, say they haven’t decided whether Lyle will take the stand for himself.

In his testimony during the retrial, Erik Menendez has portrayed his older brother as his protector--especially after he confided to Lyle just days before the slayings that their father had been molesting him for a dozen years.

The prosecution contends that the brothers shotgunned their parents, Jose and Kitty Menendez, to death at the family’s Beverly Hills mansion to get their hands on the parents’ millions, then concocted their tales of a nightmare upbringing to support an “abuse excuse” defense.

But attorneys for the brothers contend that their fear of their controlling parents was so profound that they believed their parents would kill them first to avoid a scandal.

The defense court papers point out that Lyle Menendez has a legal right not to testify at his trial and probably would not.

As a result, Abramson and Levin maintain, Lyle Menendez is unavailable as a witness for Erik because, as a codefendant in the murder trial, he has a right not to incriminate himself. The next best solution, the lawyers say, is an exception to the hearsay rule: Lyle’s prior recorded testimony.

From a defense perspective, Levinson said, the brothers’ “best shot with these jurors is the old Menendez brothers, not the new Menendez brothers. It’s hard to do the second time around.”

The videotaped testimony would prevent prosecutor Conn from asking Lyle about his alleged efforts to get friends to lie for him at the first trial. And Lyle would not be questioned on another potentially damaging subject: the so-called Norma Novelli tapes. Novelli, a San Fernando Valley housewife who befriended Lyle before the first trial, published an unauthorized book, “The Private Diary of Lyle Menendez,” in which he calls himself “Trial Lyle,” critiques his own performance on the stand, and vows he will “kick [Dist. Atty. Gil] Garcetti’s ass”again at the retrial.