Guilty Verdicts in Menendez Case

Re “A Verdict Beyond Dispute,” Commentary, March 21: Alan Dershowitz has some nerve saying it’s OK for women who have endured abusive relationships to assert that abuse as a defense to murdering their abusers, but it’s not all right for kids to do the same. The reason the “battered woman syndrome” has become a well-accepted partial defense to murder (it reduces murder to manslaughter) is because of the strong lobby women’s organizations have. Unfortunately, children do not have a similar lobby. Even though many expert psychotherapists recognize a “battered child syndrome,” it has not caught on as a partial defense to murder charges, although some courts have allowed it.

Judge Stanley Weisberg, frustrated at the failure of the jurors in the first Menendez trial to convict the brothers of murder, saw to it that history did not repeat itself. He emasculated the defense in the second trial by not allowing some 30 or 40 witnesses to testify about the “battered child syndrome.”

Finally, Judge Weisberg refused to give the jury the option of convicting the brothers of the lesser offense of manslaughter on the “imperfect self-defense” theory--an honest but unreasonable belief in the need to defend oneself from imminent death or great bodily injury. The jury was thus deprived of the opportunity to connect the abuse with the degree of the crime--murder or manslaughter.

It may be that even with the whole story of abuse, the jury would still have convicted the brothers of murder. But the jury didn’t have the opportunity. Fortunately, the law is more merciful during the penalty phase. The jury will now hear the evidence of abuse, and will have to decide whether the brothers live or die.

MARJORIE COHN

Criminal Law Professor

Thomas Jefferson School of Law

San Diego