Judge’s Inquiry Sends Menendez Trial Into Chaos

After a judge’s inquiry was launched into possible misconduct by defense attorney Leslie Abramson, the Menendez brothers’ murder trial plunged into chaos Friday as she invoked her 5th Amendment right against self-incrimination and the judge denied requests for a mistrial of the penalty phase.

During a daylong series of hearings, Superior Court Judge Stanley M. Weisberg grappled with how to deal with the explosive testimony Thursday of defense psychiatrist William Vicary, who told jurors that he deleted potentially damaging information from his notes of therapy sessions with Erik Menendez at Abramson’s request.

As testimony was put on hold for a second day, Weisberg launched an inquiry into Vicary’s surprise disclosure, which has raised a number of questions about possible perjury, evidence tampering and attorney misconduct.

Weisberg made no findings regarding the issue of misconduct. He told lawyers: “My purpose is to see to it that this trial is concluded in a legally proper way. I’m not concerned with such extraneous matters at this point.”

The possibility of a mistrial applied only to the penalty phase of the case--not to the guilt phase, which ended March 20 with the brothers’ convictions on first-degree murder charges in the Aug. 20, 1989, shotgun slayings of their parents. In the penalty phase, which is scheduled to resume Monday, the jurors must decide whether the brothers should be executed or spend the rest of their lives in prison without the possibility of parole.

The day’s stormy developments included:

* Abramson, questioned by the judge about the deleted material, twice invoked her privilege against self-incrimination after consulting with her attorney, Dennis Fischer.

Legal experts said they had never heard of a defense attorney invoking the 5th Amendment on her behalf while fighting to keep a client from death. “Nope,” said Charles Lindner, a Santa Monica defense lawyer who has handled eight death penalty cases. “Never,” UCLA law professor Peter Arenella said.

* Lyle Menendez’s lawyers, Charles Gessler and Terri Towery, argued that their client has been harmed, through no fault of his own, by co-counsel Abramson’s error in calling Vicary to the witness stand even though she knew that the notes had been altered.

* Barry Levin, who along with Abramson is representing Erik, accused prosecutors of “proceeding on a witch hunt against Ms. Abramson, rightly or wrongly.” He asked Weisberg to appoint independent counsel to help Erik determine whether he should fire his lawyers for ineffectiveness.

Weisberg looked toward the defense table and responded: “It has nothing to do with the prosecutors here. If there’s blame, the blame lies somewhere else.”

And, the judge told Levin that he was qualified to assume the lead role as the untainted, conflict-free attorney.

Levin said in turn that he will advise his client, Erik Menendez, to ask the court to remove Abramson from the case because her credibility with the jury has been so severely damaged that Levin said he now views the trial’s penalty phase “as a death march.”

“Her credibility in front of this jury has been so severely tainted and damaged that it’s very unlikely that any of her arguments are going to persuade this jury,” Levin said.

Deputy Dist. Atty. David P. Conn argued against the judge ordering a mistrial, as requested by attorneys for both brothers.

Weisberg also noted that “the material [jurors] are authorized to consider excludes conduct of counsel.”

Vicary also came to court with a lawyer, Paul J. Fitzgerald. On Thursday, Vicary had left it unclear what particular portions of his notes had been deleted. But on Friday, he elaborated under questioning by Weisberg and Gessler.

After a meeting with Abramson a week before he was to testify in the first trial, Vicary said he deleted several sections of the notes he and Abramson considered prejudicial, confusing, or misleading. No one else was present, he said.

The sections deleted, he continued, included a session in which Erik said he and Lyle talked a week before the killings about “what life would be like without our parents.”

And, he said he deleted another section in which Erik said he and his brother discussed taking “drastic action.” According to Vicary’s testimony, Erik said Lyle asked him to wait a week, but that Erik responded he “couldn’t take it anymore.”

The deletions might never have come to light, Conn said, if Abramson hadn’t “accidentally” turned the original notes over to the prosecution’s psychiatric expert two months ago.

Faced with an apparently unprecedented situation involving Abramson, experts said, Weisberg chose the least disruptive option--to keep the trial moving while waiting until later to deal with Abramson’s conduct.

“For now,” Southwestern University law professor Robert Pugsley said, “Leslie’s legal problems have to be put as far out of the courtroom as possible.”

Referring to Friday’s events, he added: “This is the least worst alternative in terms of protecting Erik’s trial rights and rights to effective assistance of counsel. Lyle’s, too. While it’s not a perfect solution, it is probably the most practical and fairest.”

The jury, meanwhile, was left to wait and wonder about the proceedings, which occurred outside their presence. For jurors, Arenella said, “the damage has been already been done” to Abramson’s credibility--no matter what the ultimate outcome of her dealings with Vicary is.

“With Vicary announcing in front of the jury that Leslie Abramson ordered him to alter his notes, Abramson lost whatever credibility she had in front of that jury,” Arenella said.

Asked how that might affect jurors deciding the fate of Erik and Lyle Menendez, Arenella said it shouldn’t. But, he added, that is no sure thing.

“The jury should distinguish between a lawyer’s credibility and the probative value of the evidence suggesting deep pathology in the Menendez family,” Arenella said. “But sometimes juries don’t do what they should do.”

In theory, jurors ought not to learn until the trial ends that Abramson invoked the 5th Amendment. Over the past several months, Weisberg has cautioned them repeatedly not to pay attention to news accounts of the case.

Abramson has long been one of Los Angeles’ leading criminal defense attorneys.

The first Menendez trial, which was televised live on Court TV, made her a national celebrity--known as much for her legal smarts and her passionate portrayal of the brothers’ abuse defense as for her in-your-face personality and signature mane of frizzy blond hair.

During the O.J. Simpson murder trial, she was a frequent commentator on ABC-TV’s “Nightline.” She has suggested frequently in recent months that the Menendez retrial might be her last court case--and that she may turn full time to TV.