New Strategy Pays Off for Prosecutors

A strikingly different tactical battle in the second Menendez brothers murder trial yielded strikingly different results.

In a series of aggressive moves, prosecutors diminished the impact of the defense theory of abuse, focused the case on the gruesome shotgun slayings of the Menendez parents and prompted the judge to all but limit jurors to a verdict of murder.

And, on Wednesday, murder it was--first-degree murder for both brothers. Quite a contrast from the first trial, which was dominated by the theme of abuse and ended in juries deadlocked between murder and lesser manslaughter verdicts.

Quite a boost, too, for the image of much-maligned juries in Los Angeles, legal experts said. And, added political experts, the timing couldn’t be more propitious for Dist. Atty. Gil Garcetti, who stands for reelection next Tuesday and could cite the verdicts as evidence that his office actually can win a big one.

“All in all, the breaks fell the prosecution’s way this time,” summed up Laurie Levenson, a professor at Loyola Law School. “And you ended up with a verdict that many people expected the first time around.”

UCLA law professor Peter Arenella said the “ultimate legacy” of the Menendez case will not rest on whether the brothers are sentenced to death or life in prison without parole in a hearing that begins Monday. Instead, it will be the fate of their case on appeal--whether the higher courts uphold Superior Court Judge Stanley M. Weisberg’s controversial decision not to give jurors the option of manslaughter in the slaying of Kitty Menendez.

If that decision is affirmed, Arenella said, it may severely undercut the ability of abuse victims to present a “viable” defense.

In the near term, however, the verdicts should serve as a resounding “step toward rehabilitating the image of the Los Angeles jury,” Levenson said.

Particularly in the wake of O.J. Simpson’s acquittal on double murder charges, Los Angeles had “in some ways become somewhat of a laughingstock,” Levenson said. “Now we finally have a high-visibility jury showing that they can [convict] too.”

Prosecution Tactics

The convictions marked one of the few times that the district attorney’s office has won a high-visibility case during Garcetti’s tenure--it having failed to secure convictions in the Simpson case, the Snoop Doggy Dogg murder trial and others.

Garcetti has long stressed that his office wins more than 90% of its cases.

But during the campaign, most of Garcetti’s five rivals in the Tuesday primary have emphasized the headline-grabbing cases.

On Wednesday, the challengers refused to give ground.

“Sure, he won this time,” said Todd Blair, campaign manager for challenger Harold Greenberg. “If they had done it right, they would have gotten it the last time.”

Nevertheless, political insiders said Garcetti may get a boost at the ballot box from the verdicts--even though the retrial strategy was engineered by Deputy Dist. Atty. David P. Conn.

Garcetti, they noted, took the heat when his deputies lost, especially after the Simpson case. Now it’s his turn to bask in accomplishment.

Analyst Sherry Bebitch Jeffe, senior associate at the Center for Politics and Economics at Claremont Graduate School, said: “I would expect Gil is breathing a wee bit easier. . . . It would have been nicer for Gil if he had won it on the first try. But it certainly is better than a poke in the eye with a sharp stick.”

In the courtroom, the prosecution tactics marked shrewd turnabouts from the strategy at the first trial, Levenson and others said.

But, legal experts emphasized, the prosecution had a good thing going from the start of the second trial--for the perverse reason that it had not secured convictions in the first go-around.

“Prosecutors, unless they are fools, always learn from the mistakes they make in a first trial,” Arenella said.

The biggest mistake at the first trial turned out to be Deputy Dist. Atty. Pamela Bozanich’s far-reaching decision not to address head-on the brothers’ allegations of years of physical, emotional and sexual abuse. The lead prosecutor at the first trial tried to ignore it all, hoping that jurors would too.

Having learned that such a strategy didn’t work, Conn, who headed the prosecution team at the second trial, took a different tack--a no-holds-barred strategy of attacking and ridiculing the stories of abuse at virtually every turn.

Nearly two years in the making, the tactic enabled him in the end to set the agenda in the courtroom--much as fiery defense attorney Leslie Abramson had done in the first trial.

“I feel great,” Conn said as he left the courtroom Wednesday with a smile.

Many of the prosecution victories occurred before the second trial even began.

One was gaining Weisberg’s approval to try both brothers before a single jury. The first trial was conducted before separate juries, one for each brother.

“A single jury is always more conducive to forcing the hard decisions on the table for jurors,” Southwestern University law professor Robert Pugsley said.

Another breakthrough also came early. Prosecutors kept more than 30 of the brothers’ friends, teachers and coaches off the stand, arguing that their testimony at the first trial--which veered onto subjects such as hairdos and pet ferrets--was irrelevant.

In the long months between the two trials, prosecutors--relying on Beverly Hills Police Det. Les Zoeller, the lead investigator in the case--amassed damaging evidence that suggested that Lyle Menendez tried to coach witnesses to lie during the first trial.

The older brother’s tearful testimony riveted jurors during the first trial. He did not take the stand at the retrial.

In a bold stroke, Conn decided before the retrial began to drop psychologist L. Jerome Oziel from the prosecution case.

Oziel was the chief prosecution witness at the first trial, testifying that the brothers had confessed to him. But he was savagely attacked on cross-examination over a long-running affair--a defense tactic that deflected jurors’ attention from the Aug. 20, 1989, slayings of parents Jose and Kitty Menendez.

When the retrial began, Conn made the grisly slayings the centerpiece of the prosecution case. He and Deputy Dist. Atty. Carol Najera spent a full month graphically showing how the parents were killed in the TV room of the family’s Beverly Hills estate.

Then, in a dramatic turn, Conn called one of the top forensic psychiatrists in the country, Newport Beach-based Dr. Park Dietz, to testify that Erik Menendez was rational when he and his brother fired their 12-gauge shotguns.

At the first trial, prosecutors did not refute the testimony of psychologists and other mental health experts hired by the defense with expert witnesses of their own. Bozanich reasoned that doing so would give credence to the abuse allegations.

Dietz’s testimony at the retrial “was important, indeed vital,” Pugsley said, for it “demonstrated to the jurors and even to the defense and the judge that [prosecutors] came prepared to fight this time on that front of the war.”

Abuse Evidence

More than anything else, however, the key to the retrial rested on a different prosecution approach to the law--in particular, to a section of the evidence code that gives battered women the right to present evidence of abuse.

At the first trial, Bozanich said she believed that law applied to the brothers.

Conn maintained simply that it didn’t. For one thing, he argued in court, they weren’t women.

That triggered a series of hearings that eroded the defense case and led, just before the retrial ended, to a ruling from Weisberg that the jury would not be able to reduce murder to manslaughter by considering whether abuse had led the brothers to kill out of fear for their lives.

That ruling, Arenella said, was “the full coup de grace to the defense.”

Times staff writers Bob Pool and Bettina Boxall contributed to this story.