Menendez Retrial Plays Differently


When Erik and Lyle Menendez first faced jurors two years ago, their nationally televised murder trial was dominated by defense lawyers and their virtually unchallenged theory that abuse by the slain parents accorded the brothers the same rights as battered spouses.

Not so at their far less publicized second trial, which went to the jury Friday.

At the fiercely fought retrial, an energized prosecution team launched countless legal attacks and convinced Superior Court Judge Stanley M. Weisberg that the defense had shown insufficient evidence that the brothers were battered persons who had killed out of duress and fear. Prosecutors also persuaded the judge to cut short testimony about the Menendez family’s troubled history.


During the 20-week trial, the judge seemed impatient with the defense, and particularly with fiery attorney Leslie Abramson, who had commanded the courtroom during the first trial.


With no television cameras, the retrial more closely resembled a regular murder trial--somber, gruesome, sometimes nasty, and occasionally crashingly dull as it unfolded in a tiny courtroom in the Van Nuys Courthouse. Unlike most murder trials, however, there was no one sitting in the audience on behalf of the victims.

Weisberg, who presided over both trials, pulled the plug on the cameras on the eve of the trial, and once they were gone, media and public interest rapidly dwindled.

Prosecutors, again changing tactics, spent a month graphically showing how the parents died. They presented a reconstruction of the crime by a Silicon Valley engineering firm, supporting their argument that the killings were planned and that the shooters did not fire randomly.

And they called one of the top forensic psychiatrists in the country--Park Elliott Dietz--to testify that Erik Menendez was rational when he and his brother Lyle fired their 12-gauge Mossberg shotguns into their wealthy parents Jose and Kitty Menendez on Aug. 20, 1989.

This second time around, with the element of surprise gone, Deputy Dist. Atty. David P. Conn, the unflappable lead prosecutor, set the agenda as Abramson had in the first trial. As the trial wore on, Conn, who bears a striking resemblance to Clark Kent, exuded confidence while Abramson seemed frustrated and fatigued.

Missing from the retrial was the tearful testimony of older brother Lyle Menendez, arguably one of the first trial’s most dramatic defense witnesses.

But had he taken the stand this time, Lyle would have faced damaging evidence that he tried to coach witnesses to lie during the first trial. Instead, he relied on his brother’s testimony. Erik, who described himself as “the throwaway son,” portrayed older brother Lyle as his protector.

The brothers mounted a joint defense, and Lyle’s lawyers, Deputy Public Defenders Charles A. Gessler and Terri Towery, relied on Abramson’s witnesses, calling few of their own. As a result, Lyle may remain somewhat of an enigma to the retrial jury.

It will be up to the seven men and five women to decide who made the most convincing case. The jurors, who deliberated three hours Friday, have been particularly stoic and difficult to read.

The group seems to get along, unlike the two juries in the first trial, which broke down into cliques.

The defense in the first trial, which featured juries for each brother, was able to convince half the members of both panels. Erik’s jury split along gender lines, with the women voting to convict him of lesser manslaughter charges.

During Abramson’s dramatic closing argument last week, two male jurors wore suits and ties to court, sending court watchers into a tizzy as they tried to read what the fashion statement signified. The next day, the two men wore matching denim shirts. One of them, a postal clerk who has been particularly stone-faced, smiled at Abramson as she began her summation. Later, he copied one of her charts into his notebook.

Just as she had at the first trial, Abramson wove a compelling and intricate story of child abuse, molestation, tyranny and despair hidden behind the gates of a Beverly Hills mansion.

The sex and child abuse, Abramson argued at both trials, explained why the brothers would shoot and kill their parents: Conditioned by years of degradation and fear, they were profoundly afraid that their parents were about to kill them to silence a family incest scandal.

Prosecutors began to concentrate two years ago on how to combat that richly detailed story, which not only convinced half the jurors to reduce murder verdicts to manslaughter, it sharply divided the public debate that followed.

They had been stunned after the first trial resulted in two deadlocked juries. Pamela Bozanich, the lead prosecutor, had made a strategic decision to downplay the brothers’ abuse allegations. Convinced that the abuse story was made up, prosecutors had been certain jurors would see through it.

Conn, acting head of the district attorney’s major crimes unit, volunteered for the retrial, bringing on Carol J. Najera, and later, another member of the unit, Juan Mejia. So began a series of secret strategy sessions with Bozanich.

The prosecutors were trying to figure out how to take back the case that had made instant celebrities of the tennis-playing, sweater-wearing scions, and of the charismatic Abramson.

They decided to attack on two fronts--through the law and by sarcastically telling jurors at the retrial that it was a hoax.

The first victory was gaining Weisberg’s approval to try both brothers before a single jury.


Prosecutors also decided to hammer on “the Kitty factor.” Killing a domineering father with a point-blank shot to the back of the head was one thing. Shooting a mother multiple times as she sprawled helpless on the floor, then reloading and shooting her in the face, breaking every bone, was quite another.

Another legal breakthrough came early, when Conn reread the section of the evidence code that deals with battered women’s syndrome. While Bozanich, fearing a possible issue for appeal, agreed in the first trial that it applied, Conn vigorously attacked it, setting off a series of hearings that eroded the defense case until it crumbled on the eve of closing arguments.

Prosecutors kept more than 30 of the brothers’ friends, teachers and coaches off the stand, arguing that their testimony was irrelevant.

Abramson’s frustration was evident when, late in the trial, she pleaded with the judge to allow testimony from the brothers’ uncle.

“C’mon your honor, we could use a break. Throw us one little bone,” she wheedled.

“Your bone was the first mistrial,” Conn retorted.

Abramson’s playfulness was gone by the end, when Weisberg sharply limited the testimony of one of her mental health experts, Dr. William Vicary, to whom Eric first disclosed the molestation allegations. Abramson bitterly set forth a basis for appeal, arguing her own ineffectiveness:

“I want it spread on the record that I have been utterly and completely incompetent in representing Mr. Menendez in this case. . . . I want it very clear that I operated under the completely erroneous, fallacious and stupid assumption that I would be able to call Dr. Vicary.”

The next day brought an even more crushing defeat.

Weisberg ruled that this time the Menendez jury would not be able reduce murder to lesser manslaughter verdicts by considering whether the abuse had led the brothers to kill out of fear for their lives. The theory, the defense’s cornerstone, is known as the “imperfect self-defense.”

Jurors can still consider manslaughter in the slaying of Jose Menendez if they find he provoked the confrontation that led his sons to blast away at the parents.

Abramson has complained, often bitterly, about the judge, and claims that the brothers aren’t getting a fair trial. But judges and other legal sources point out that Weisberg was only responding to legal issues raised by prosecutors.

However, some legal observers believe that Weisberg hijacked the second Menendez trial by clamping down on the defense and making rulings that should have been credibility calls for the jury.

But Weisberg explained in court that he wasn’t questioning anyone’s credibility; rather, that the law had changed since the first trial. He said he based his decision on a 1994 state Supreme Court case that narrowed the uses of the imperfect self-defense.