The Menendez Brothers
The penalty phase began on March 22, 1996 and was completed in three weeks. The defense called 18 witnesses to testify on behalf of the brothers. The rules of evidence were different in the penalty phase than at the brothers' trial. Since the jurors are being asked to make a life or death decision, the defense was permitted to appeal to the jury's sympathy. The rules allowed the defense to offer evidence of mitigating factors, such as the brothers' ages, whether they were "under the influence of extreme mental or emotional distress," whether the victims "were participants in their own deaths" and any other evidence that diminished the gravity of the crime.
On April 4, during the second week of the penalty phase, an unexpected and stunning thing happened in court. Dr. Vicary, the psychiatrist who had treated Erik since 1990, admitted that he doctored his notes at the direction of Leslie Abramson. Under cross-examination, Vicary admitted that he omitted from his notes entire sections containing incriminating statements by Erik Menendez. This incident had major ramifications for the defense.
On April 5, Abramson invoked her Fifth Amendment privilege not to incriminate herself when she refused to answer two questions about her possible misconduct regarding Vicary's notes.
After hearing arguments outside the presence of the jury, Judge Weissberg rejected defense motions for mistrials for both brothers. The defense had tried to argue that a mistrial should be declared because of Abramson's ineffective assistance of counsel. Weissberg ruled that Lyle could not make that argument because Abramson was not his lawyer. Weissberg also ruled that Barry Levine was perfectly capable of taking over Erik's case, if Abramson decided not to continue to participate in the proceedings.
On April 6, Conn told the court how he learned about the deleted notes. Conn said that in 1993 Abramson had turned over to him the redacted version of Vicary's notes. At some point during the trial, Conn needed to review the notes at the Van Nuys courthouse, but had left his copy in his office in downtown Los Angeles. Conn borrowed a copy of the notes from Dr. Dietz who had received a copy from the defense. Somehow, Dietz had been given a copy of the original notes. Conn said that Abramson turned over the originals by accident and had if it not been for this mistake, no one would have noticed the discrepancy. Vicary had deleted 24 pages of statements Erik had made to him and rewrote 10 pages of notes.
The notes contained incriminating evidence against Erik. One of the sections noted that Erik told Vicary that he thought about what it would be like to live without his parents. In another section, Erik told Vicary that he and Lyle discussed doing something "drastic" but the notes do not specify exactly what is meant by "drastic." In another section, Erik told Vicary that Jose's homosexual lover visited the mansion two days before the murders occurred and told the brothers that their parents were going to kill them. Vicary later admitted that Erik told him that this story was a lie.
On April 9, Judge Weissberg ruled that a conflict did not exist between Leslie Abramson and Erik Menendez that would necessitate her removal from the trial. The ruling followed two days of closed-door hearings during which Gessler and Levine sought to have Abramson removed. It was only after Erik Menendez spoke to Weissberg behind closed doors that Abramson was allowed to stay. Weissberg said that he would instruct the jury not to consider Abramson's alleged actions of misconduct when deciding whether the brothers should be sentenced to death or life in prison. Weissberg also ruled that the prosecution could not ask Vicary about Abramson's order to delete his notes, instead Weissberg directed the prosecutors to impeach Vicary's testimony without making any references to Abramson. Leslie Abramson remained silent throughout the remainder of the trial.
On April 10, Vicary concluded his testimony and the prosecution presented three rebuttal witnesses: Les Zoeller and Kitty's two brothers, Milton and Brian Andersen.
On April 11, David Conn gave his closing argument. Conn argued that the Menendez brothers should be sentenced to death because they chose to kill their parents in a "horrifying and brutal way." Conn ridiculed the defense allegations of psychological abuse, saying that the allegations were "desperate and trivial."
In his closing argument, Barry Levine accused the Los Angeles County district attorney's office of arbitrarily deciding who was eligible for the death penalty. He reminded the jury of the O.J. Simpson case and said, "he's not even eligible for the death penalty." Levine told the jury that the prosecution had not presented evidence of aggravating circumstances other that the crime itself.
On April 12, the jury began to deliberate whether the Menendez brothers should be sentenced to life in prison or death.
On April 17, 1996, after deliberating for three days, the jury decided that life in prison was the appropriate punishment for Lyle and Erik Menendez. The jury later said that the abuse defense was never a factor in their deliberations and that the jury decided to spare the brothers' lives because neither brother had a felony record or a history of violence. Although some jurors said they were sympathetic to the brothers' upbringing and that it may have contributed to the murders being committed, in the end they could not excuse it. Several of the jurors believed some of the evidence of psychological abuse, but questioned whether the sexual abuse occurred.
Unlike the first trial where two separate juries could not agree on whether the brothers committed murder or manslaughter, jurors in the retrial said that there was never any division or dissent and there were no holdouts. None of the jurors believed the defense theory that the brothers killed because they were afraid and the jurors did not believe that the brothers killed solely to get their hands on their parents' money.
On June 1, defense attorneys for the Menendez brothers filed a motion in Judge Weissberg's court seeking a new trial for the brothers. The motion argued that Judge Weissberg erred when he refused to allow the jury to consider manslaughter verdicts. The motion also claimed that Judge Weissberg erred when he allowed jurors to hear the December 11, 1989 tape of the brothers confessing to Dr. Oziel. The motion also claimed that Weissberg erred when he limited the number of defense witnesses who testified about the Menendezes' family life.
Prior to being formally sentenced on July 2, 1996, Lyle and Erik gave an interview to Barbara Walters for the television program 20/20. The purpose of the interview was to gain public support for the brothers' bid to be imprisoned together. A committee of California state correction officials ultimately made the decision of whether to imprison the brothers together. David Conn said that he had no position on whether the brothers were imprisoned together or apart, as long as they did not receive any special treatment.
On July 2, 1996, Judge Weissberg sentenced Lyle and Erik Menendez to life in prison without the possibility of parole. Judge Weissberg sentenced the brothers to consecutive sentences for the murders and the charge of conspiracy to commit murder.
A few weeks after the sentences were announced, Lyle and Erik were taken to the North Kern State Prison at Delano, a Department of Corrections reception center outside of Los Angeles for diagnostic evaluation. A decision whether the brothers were to be imprisoned together was made after the evaluation was completed.