Judge Keeps Abramson as Menendez’s Lawyer

Superior Court Judge Stanley M. Weisberg refused Tuesday to remove Leslie Abramson as a defense attorney for Erik Menendez during a frantic day of legal maneuvering in which Menendez’s psychiatrist said he altered his notes 24 times because Abramson threatened to take him off the case if he didn’t.

“I had an ethical problem with this,” psychiatrist William Vicary testified. “I did not think that it was right, OK?” he said under questioning from Weisberg, who is conducting an inquiry into the alleged note-tampering. But Vicary added that Abramson insisted he change his notes, saying it was legally justified.

Later in the hearing, conducted outside the presence of the jury, Weisberg closed his courtroom to ask Menendez in private if he wanted Abramson removed from the case. When he allowed the public back inside, Weisberg announced that Abramson will continue as Erik Menendez’s lawyer when testimony resumes today in the penalty phase of the murder trial of Erik and his brother, Lyle.

“The court finds no conflict of interest between Ms. Abramson and her defense of this client,” Weisberg said.

Earlier in Tuesday’s hearing, Abramson had withdrawn her claim of 5th Amendment privilege against self-incrimination. But she told the judge she could not dispute Vicary’s allegations without jeopardizing her client’s legal rights.

She asked to meet privately with the judge, but Weisberg said that anything Abramson had to say should be said in open court.

“As much as I would like to contradict [Vicary], I don’t feel I can do that in this setting,” she said. “I’m in an impossible situation. It would be real nice and in my self-interest if I could vigorously disagree” with Vicary, she said.

The three other defense attorneys, including Abramson’s own co-counsel, Barry Levin, had asked Weisberg to remove her from the case.

“At this point, [Erik’s] life is at the precipice,” Levin said. “I think Ms. Abramson’s participation in these proceedings could cause the jury to decide whether or not Ms. Abramson committed misconduct and return a death verdict in response,” Levin said. Weisberg said he will instruct the jurors to limit their deliberations to Erik’s actions rather than those of his lawyer.

Jurors, who last month convicted Erik and Lyle Menendez of murdering their parents, will decide if the two should be executed or spend the rest of their lives in prison without parole. The jury has not heard any testimony since midday Thursday. It was then that Vicary said that he changed his notes, deleting “prejudicial” statements at Abramson’s direction.

On Tuesday, Vicary returned to the stand and elaborated on what he called his reluctance to follow her instructions.

“My reaction was, why can’t we just leave it alone and wait until we come to court,” he said. “I didn’t want to do this, but I was told this [material] had to be taken out.”

More details about the deleted material came to light Tuesday when the judge and Deputy Dist. Atty. David P. Conn questioned Vicary. He described a meeting in 1993, one week before he took the witness stand in the brothers’ first trials, which ended in hung juries. Vicary said he and Abramson went through his notes page by page.

The notes were taken by Vicary during numerous sessions with Erik beginning in June 1990, nearly nine months after the murders of his parents, Jose and Kitty Menendez, in Beverly Hills.

Vicary agreed that he deleted one section of his notes that was strongly suggestive of premeditated murder. It said: “Hate this man and this woman. . . . Want them out of my life.”

That section, Vicary said, prompted “probably the bitterest argument” that he and Abramson had over the notes. During the argument, the psychiatrist said, Abramson threatened to take him off the case. Vicary said he weighed his options and responsibilities, then agreed to change his notes because it was a lesser evil than leaving the case and “abandoning a patient.”

Other items among the 24 deleted, according to Vicary’s testimony Tuesday:

* Erik’s statements that a week before the killings he hated his parents and “couldn’t wait. I wanted to kill them.”

* Erik saying he was sexually molested at the age of 5 by a male baby-sitter.

* Any mention of homosexual acts by Erik involving men other than his father at ages 11, 12 and 16.

* Erik’s statement that Lyle had an incestuous relationship with his mother but that it was “in his head.”

Weisberg ruled that the jury will hear nothing further about Abramson’s alleged role in altering the notes. The jury has already heard Vicary’s statement that he changed some notes at her request.

And Weisberg has delayed ruling on whether any mention of the homosexual activity that Erik discussed with Vicary will come before the jury. He will allow the jurors to hear about the statements Erik made about hating his parents and wanting to kill them.

Vicary was caught in two contradictions. On Monday he had denied rewriting his notes in a manner that concealed the deletions. But on Tuesday he acknowledged that he intended to conceal the changes.

He also testified that he destroyed the 10 original pages of notes. But when Conn questioned him sharply about whether he had told police and prosecutors that Abramson destroyed the notes, Vicary explained why he disclosed his note tampering on the witness stand. “What was done was wrong and the question was, what was done and who is responsible,” Vicary said. “If we divide the responsibility, I’ll take 50%. I’m not trying to shirk my responsibility and dump it on Ms. Abramson. I’ll take my 50%.”

Lawyers and legal experts said the risks of bar discipline against Abramson may grow as more information is learned about her handling of the psychiatrist, but emphasized that they do not have firsthand knowledge of what is being revealed in the courtroom.

Daniel Drapiewski, a former prosecutor who almost exclusively represents lawyers in malpractice or discipline cases, said that if Vicary had told Abramson, “This is unethical. I don’t want to do it,” and she replied, “It doesn’t matter what you want to do. . . . You do what I say,” then it “comes close to an improper manipulation of testimony.”

That “arguably could be very nasty,” he said. “But it is also consistent with an attorney using a very aggressive defense position, asserting it with an expert and the expert acquiescing. If it is the latter, there is nothing wrong with it.”

Former State Bar Judge Ellen Peck, now in private practice in Malibu, said the bar court is severe with lawyers who assist witnesses in falsifying documents. Punishment for a first-time offense ranges from a public reproval to a suspension for more than a year, she said.

Factors that would be considered include the extent of the lawyer’s involvement in falsifying evidence and the impact of that falsification in misleading a court or jury, she said.

Peck said she is frequently an expert witness in legal malpractice cases. She will not change her opinion because a lawyer tells her to, she said, but she may change her mind after listening to evidence and views presented by the lawyer who hired her.

University of San Diego law professor Robert C. Fellmeth, a former prosecutor and State Bar monitor, emphasized that he had not heard Abramson’s defense, but that if she altered physical evidence, she would face disbarment or at least severe suspension. An attorney who is disbarred can reapply to practice law after five years, he noted.

“When you start altering physical evidence,” he said, “you have crossed a very thin line.”

In a prepared statement, the State Bar of California said Tuesday that it would not disrupt the Menendez trial to investigate the allegation of attorney misconduct while the trial continues.

Judy Johnson, the bar’s chief trial counsel, noted that trial judges are responsible for checking misconduct in the courtroom through fines, sanctions or jail time.

“We will continue to follow the Menendez brothers’ proceedings,” Johnson said. “If warranted, the State Bar will look into allegations of misconduct and initiate an investigation after the trial is over.”

O’Neill reported from Van Nuys and Dolan from San Francisco.

* TURN OF FATE: Leslie Abramson will need all her skills to survive probe. B1