Menendezes’ Penalty Phase Up in the Air

Cloaked in mystery, the death penalty phase in the murder trial of Lyle and Erik Menendez continued to twist in an uncertain wind Monday as Erik Menendez spent most of the day meeting with his lawyers and the judge behind closed doors.

As court began about 9:45 a.m., one of Erik’s lawyers, Barry Levin, told Judge Stanley M. Weisberg that the defense team needed to meet with the judge to discuss “matters of dire urgency and extreme privilege.” Prosecutors and spectators, as well as the lawyers for Lyle Menendez, were led from the courtroom, which remained locked until court adjourned for the day about 4 p.m.

The penalty phase was rocked Thursday by testimony from a defense witness suggesting that Leslie Abramson, Erik’s lead attorney, may have engaged in misconduct by ordering him to alter his notes. An even more shocking and perhaps unprecedented development followed on Friday, when Abramson, questioned by the judge about her actions, invoked her 5th Amendment right against self-incrimination.

Jurors have not heard any testimony since midday Thursday, when defense psychiatrist William Vicary made the startling disclosure that he deleted potentially damaging material from notes of sessions with Erik at Abramson’s request. If true, such actions could constitute attorney misconduct at minimum and criminal evidence-tampering or obstruction of justice at most, according to legal experts.

It could not be learned what was discussed Monday or whether any decisions had been reached, because Weisberg has imposed a gag order on everyone involved in the case. However, Levin had indicated Friday that he would urge Erik to ask the court to remove Abramson from the case.

Abramson and Levin left the courtroom together, accompanied by Bruce Hill, a well-known criminal lawyer in the San Fernando Valley. Hill’s role in the case could not be determined. Weisberg ordered the parties to return to court today at 8:30 a.m.

It was the second day of fallout from Vicary’s stunning disclosure that he doctored his notes at Abramson’s request before he testified at the brothers’ first trial in 1993. That trial ended when juries for each brother deadlocked between murder and lesser manslaughter verdicts.

The brothers’ retrial resulted in first-degree murder convictions March 20. The penalty phase began a week later to decide whether the brothers will be executed or spend the rest of their lives in prison without parole.

Vicary’s note-doctoring was not discovered during the first trial, and the penalty phase of the second trial was nearly completed when Deputy Dist. Atty. David P. Conn noted a discrepancy between his notes and those of the witness during his cross-examination.

After further questioning, Vicary said he had deleted sections Abramson deemed “prejudicial, out of bounds and unnecessary.”

So far, his testimony has disclosed these key deletions:

* That Erik Menendez claimed his father’s “homosexual lover” warned the brothers two days before the slayings that their parents planned to kill them. Erik later admitted the tale was untrue, Vicary testified.

* That Erik and Lyle discussed, a week before killing their parents, “what it would be like to live without our parents.”

* That Lyle spent up to $2,000 a year on his hairpiece, for which their father suddenly refused to pay.

Vicary had been called to the witness stand for a simple reason--to demonstrate that Erik Menendez had a vulnerable, suggestible personality and could make a contribution as an inmate should jurors show mercy and sentence him to life in prison without parole.

The doctored notes might never have been discovered. A copy of Vicary’s original notes, in their unedited form, apparently got into prosecutors’ hands by accident, Conn has explained in court.

Abramson’s office apparently provided the original notes by mistake two months ago while preparing a box of materials for prosecution psychiatric expert Park Dietz to study.

Dietz did not testify for prosecutors in the first trial but was their star rebuttal witness in the second. He testified that Erik was rational when he and Lyle shot and killed their parents, Jose and Kitty Menendez, on Aug. 20, 1989.

About six weeks ago, Conn asked Dietz for his copy of the notes because prosecutors had left their copy downtown in the Criminal Courts Building and he didn’t want to make the trip from Van Nuys, where the brothers are being tried. Dietz complied.

“As I was cross-examining Dr. Vicary, I just assumed that everyone in the courtroom was working from the same set of notes,” Conn said in court.

Legal experts were at a loss to explain why the closed-door hearing lasted all day.

Perhaps, experts suggested, legalities were to blame for the delay--with Weisberg wishing to document the issues fully for any appeals court.

Others suggested the delay was for emotional reasons--with Erik Menendez forced to confront the possibility of losing the lawyer who has shepherded him through the courts the past six years.

“It may just be that Erik is freaking out at this point,” said Southwestern University law professor Robert Pugsley, who has closely followed the case.

* Times staff writer Alan Abrahamson contributed to this story.