New Menendez Mystery

The death penalty phase of the Menendez brothers’ murder trial took a dramatic turn Thursday when a psychiatrist for Erik Menendez testified that he altered his notes of their sessions, deleting a section of “prejudicial” material at the request of defense attorney Leslie Abramson.

The day’s proceedings ended in mystery as Superior Court Judge Stanley M. Weisberg met behind closed doors with defense attorneys, who later were joined by prosecutors. No announcement was made after the 90-minute closed hearing and court adjourned early.

The surprise disclosure raised eyebrows and potential ethical questions.

Neither Abramson nor prosecutor David P. Conn, who like all the other principals are under a gag order imposed by Weisberg, would comment about the witness’ contention, which, if true, could constitute attorney misconduct.

“You’ll just have to wait and hear it all at the appropriate time,” Abramson told reporters as she left the Van Nuys courthouse.

It could not be determined what material psychiatrist William Vicary said he had altered. The material was not revealed in court during the second week of the penalty phase of the brothers’ murder case.

Lyle and Erik Menendez, ages 28 and 25, were convicted last month of first-degree murder in the Aug. 20, 1989, shotgun slayings of their parents. Vicary is among the final defense witnesses in the penalty phase, in which jurors will decide whether the brothers should be executed or spend the rest of their lives in prison without the possibility of parole.

The courtroom sparks began as prosecutor Conn launched a line of inquiry into Erik Menendez’s statements to Vicary about the murders of his parents, Jose and Kitty Menendez.

Conn asked Vicary whether Erik had told him about a week before the killings that he was involved in a conversation “about what it would be like to be without parents.”

When Vicary didn’t immediately recall, Conn directed his attention to a particular page in his copy of Vicary’s notes.

It became apparent that Conn was working from a different version of Vicary’s notes when Lyle’s defense attorneys objected, saying the information was not contained in their copies.

“I don’t have it either,” said Abramson, who has represented Erik for six years.

Conn then pointedly asked Vicary if he had rewritten that page of his notes. “I did rewrite that page and I left that section out at the request of defense counsel,” Vicary responded.

“Which defense counsel?” Conn asked. “Ms. Abramson,” Vicary responded.

Asked why, Vicary added, “She said this was prejudicial and it was out of bounds.”

It was not clear Thursday how Conn came to possess a different copy of Vicary’s notes.

As Conn questioned the defense psychiatrist, Abramson repeatedly objected and asked to argue or explain out of the jury’s presence. Each time, Weisberg overruled her.

Legal analysts agreed that the actions described by Vicary, if true, raise serious ethical questions. It is considered “totally inappropriate and unethical” for potentially damaging information to be deleted from an expert’s notes, said UCLA law professor Peter Arenella.

Laurie Levenson, a professor of legal ethics at Loyola Law School, said that while she did not want to pass judgment on any lawyer, the actions described by Vicary, if true, “would violate several rules of professional conduct for lawyers in California.”

It could amount to suppression of evidence and misleading the judge and jury, Levenson said.

The judge would ordinarily report such allegations to the State Bar, which would investigate the matter, Levenson said. If misconduct was found, the state Supreme Court could impose sanctions ranging from a reprimand to disbarment.

“At the minimum,” Levenson said, “it’s a huge embarrassment because you instantly lose credibility in front of the judge and jury. And your only hope is that it doesn’t rub off negatively on your client. It may not be an ethical violation given all the facts of the case, but boy, you don’t want to be the one standing there defending yourself.”

Judy Johnson, chief trial counsel for the California State Bar, declined to comment on whether the actions described by Vicary constituted misconduct. “Under no circumstances is the State Bar going to interfere to investigate an allegation at this juncture in a trial,” Johnson said.

Vicary also disclosed that Erik Menendez initially told him that two days before the murders, Jose Menendez’s “homosexual lover” came over to the family’s Beverly Hills mansion and told the brothers that their parents planned to kill them. Vicary testified that Erik later told him the story was untrue, but that he never included Erik’s admission in his notes.

Times staff writer Bettina Boxall contributed to this story.