Menendez Uncles Describe Anguish

As testimony in the death penalty phase of the Menendez brothers’ murder trial ended Wednesday, prosecutors left jurors with two images that had never before been seen during the six-year legal drama.

One was a white-haired man sobbing on the witness stand for his sister, Kitty Menendez, who was slain by her sons. The other was a family video that showed Erik Menendez smiling and waving with his parents as they boarded a small plane 11 days before the murders.

“Wave goodbye,” Kitty Menendez instructed Erik as he stepped onto the plane. Later, as they landed, she said, “Here we are--home safe.”

“That’s the last time I ever saw my sister,” said Brian Andersen, who recalled Kitty Menendez as “a great friend for me, as well as a sister.”

Until now, the focus has been on the killers as a stream of family members, coaches, teachers and friends testified about the brothers’ redeeming qualities and harsh upbringing.

But on Wednesday prosecutors called Andersen, as well as his brother, Milton, to the witness stand to counter the Menendez family’s impassioned pleas earlier in the penalty phase to spare the lives of Erik and Lyle Menendez. The two were convicted last month of first-degree murder with special circumstances in the August 1989 shotgun slayings of their parents.

Although Judge Stanley M. Weisberg ruled that the Andersens could not plead for the death penalty, they were allowed to describe the toll the crime has taken on them and their side of the family.

“Sleepless nights,” Brian Andersen testified. “Sometimes I wake up at night screaming at the vision of her and the way she was murdered, knowing she was alive for part of that time.” He paused, sobbed twice, then continued: “I wish I’d been there to help protect her.”

Milton Andersen told jurors: “It was devastating. Totally devastating. I still can’t believe it happened.”

Erik and Lyle Menendez bowed their heads and showed no emotion during the testimony, which seemed to move some members of the jury.

Also expressionless was Kitty Menendez’s sister, Joan Vander Molen, who has become allied with the Menendez relatives.

Lawyers are expected to give the jury their closing arguments today, and then the panel will be asked to decide whether the Menendez brothers will face execution or spend the rest of their lives in prison.

Earlier in the day, jurors heard more details from the psychiatrist whose testimony threw the trial into turmoil a week ago when he disclosed that he rewrote some pages of his notes, deleting “prejudicial material” at the request of defense attorney Leslie Abramson.

Jurors were given three instructions before the psychiatrist, William Vicary, took the witness stand.

First, Deputy Dist. Atty. Carol J. Najera read the panel an agreement between prosecutors and three of the four defense lawyers, excluding only Abramson, lead attorney for Erik Menendez.

It stated that none of the other defense lawyers--Barry Levin, Charles Gessler and Terri Towery--knew that Vicary’s notes had been edited until he revealed it during the penalty phase of the retrial. It further stated that the three lawyers had never been provided copies of Vicary’s original notes.

Weisberg further instructed jurors that “misconduct of counsel, if you believe it exists, is not a factor you can consider.”

Vicary’s testimony that he altered his notes has raised ethical questions as well as misconduct issues for the lawyer and the psychiatrist.

Vicary’s surprise disclosure led to several days of hearings, numerous calls for a mistrial and requests from the other three defense lawyers to remove Abramson from the case. But Weisberg ruled she could stay.

Once again on the witness stand, Vicary was solemn as Deputy Dist. Atty. David P. Conn’s questions tolled like a bell in the hushed courtroom.

Page after page, 10 times in all, Conn asked Vicary: “Did you rewrite that page?” “When you rewrote the page did you delete that notation from the page?” “After you rewrote that page, deleting that notation, did you destroy the original page?”

Each time, Vicary responded, “Yes.”

“Do you concede today that your actions were wrong?” Conn asked.

“Yes,” said the bespectacled Harvard Law School graduate.

Vicary also acknowledged that he used the altered notes in the brothers’ first trials, which ended with hung juries two years ago. He said he knows he could be prosecuted criminally for destroying his original notes and altering their content. Still, Vicary said he had not committed perjury and now was testifying without any promise of immunity from prosecution, or other legal protection.

“My testimony has been completely honest and truthful,” he said. “You take these changes in my notes and you put them back in my notes, and it doesn’t make a damn bit of difference,” he said under questioning by defense attorney Levin.

Abramson had previously questioned Vicary, but turned the witness over to Levin. Abramson had invoked, but later withdrew, her 5th Amendment right against self-incrimination when questioned about the allegations that she instructed Vicary to delete sections of his notes.

Also Wednesday, testimony outside the presence of the jury disclosed for the first time that a Beverly Hills psychotherapist may have tried to warn the Menendez parents that “Erik and Lyle were a danger” to them.

Erik Menendez made the disclosure during a therapy session in jail with Vicary, who testified that he could not pinpoint the date or the source of Erik’s information. Vicary testified that Erik told him Jose Menendez did not believe Jerome Oziel, his previous therapist. Nonetheless, Erik said “the parents started locking their doors,” Vicary testified.