Penalty Phase in Menendez Case Delayed

The start of the penalty phase in the Menendez brothers’ trial has been delayed until Wednesday, giving the defense more time to mount a life-or-death struggle centering on the brothers’ characters, mental health and history of alleged sexual abuse by their parents.

At a brief hearing Friday, attorney Leslie Abramson provided the first public glimpse into the brothers’ strategy for the penalty phase, the portion of the trial in which the rules shift significantly to give the defense every opportunity to present sympathetic testimony.

The eight men and four women on the jury will hear evidence in the penalty phase that was kept from them during the first part of the trial because of a ruling that some legal analysts say played a significant role in the prosecution securing first-degree murder convictions.

Now, because the lives of Erik and Lyle Menendez are at stake, the defense will be permitted to appeal to jurors’ sympathy by presenting detailed testimony about the abuse the brothers allegedly suffered while they were growing up.

Judge Stanley M. Weisberg granted Abramson’s request that the penalty phase be pushed back from Monday to Wednesday to allow her time to prepare witnesses from out of state. Deputy Dist. Atty. David P. Conn has told the judge that he initially will present no witnesses. The prosecution already has given the jury its most compelling evidence--much of it dealing with the brutal nature of the 1989 killings of the parents.

The defense must now switch the focus to the brothers themselves.

“Their life history now becomes much more relevant to the jury,” UCLA law professor Peter Arenella said in an interview Friday. “The defense’s job in a death penalty trial is to make their client a human being who merits some compassion from the jury.

“In a case in which the jury already has accepted the prosecution’s story of why these murders occurred, that is a daunting task,” he said. “Somehow, the defense must present a fuller picture of the family’s pathology to show this jury that something more than financial greed motivated these killings.”

Loyola Law School professor Laurie Levenson said there is nothing the prosecution can do to bar the abuse testimony at the penalty phase.

“All bets are off. All of the sympathy evidence, all of the abuse evidence can be presented to the jury even though it was kept out of the first part of the trial,” she said.

The key difference lies in the legal ground rules of the trial and penalty phase. At the trial, the defense tried to offer abuse evidence to show that the brothers killed out of fear after a lifetime of sexual, physical and psychological abuse. But Weisberg placed strict limitations on what the jury could hear.

In the penalty phase, though, the law dictates that the defense can bring evidence of mitigating factors such as the brothers’ ages, whether they were “under the influence of extreme mental or emotional disturbance,” and whether “the victims were participants” in their own deaths.

The jurors can also weigh “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”

In court Friday, Abramson mapped out her plans for next week’s witnesses, indicating that the jurors first will be led back in time to the early childhoods of Erik and Lyle Menendez, now 25 and 28.

Over the next three to four weeks, a parade of defense witnesses--perhaps more than 60 in all--will detail the brothers’ allegedly abusive upbringing.

Some of that abuse testimony was heard in the first trial and was emotionally powerful enough that the jurors could not reach verdicts.

Among the first witnesses Abramson said she will call are a cousin, Alan Anderson; an aunt, Marta Cano; a friend, Jessica Goldsmith, and a childhood tennis coach, William Kurtain. All testified during the first trial.

Anderson said at the original trial that she had seen bruises on Kitty Menendez and her sons, and that Kitty flew into dish-smashing rages, often told Lyle she wished he had never been born and called Erik “stupid.”

Teresita Baralt, Jose Menendez’s sister, described a competitive Menendez household and testified that Kitty sometimes abandoned her sons at shopping malls, did not seem to show them compassion and was mentally abusive.

Goldsmith said that Kitty once continued to buy shoes while shopping, even though Erik had cut his head and needed stitches, and that Jose punched Lyle in the stomach, telling him to be a man and not to cry.

Kurtain, the brothers’ tennis coach when Lyle was 10 and Erik was 7, testified that Jose was stern, obnoxious and verbally abusive, often dominating tennis practices.