The Menendez Brothers
The Second Trial
On February 28, 1995, Judge Weissberg set a trial date of June 12, 1995 for the retrial of the Menendez brothers. The retrial was postponed a number of times and began in August 1995. In April 1995, Judge Weissberg ruled that the brothers would be retried together, in front of a single jury. Weissberg ruled that the advantages of a "single trial greatly outweigh the potential prejudice."
For the retrial, David Conn, a veteran Los Angeles County assistant district attorney, and Assistant District Attorney Carol Najera replaced Pam Bozanich and Lester Kuriyama. Conn had 18 years of experience and was acting head deputy of the major crimes unit of the Los Angeles County district attorney's office. Conn dropped out of high school at the age of 17, joined the Marines, and was sent to Vietnam. He eventually graduated from college and law school. Conn is smooth, impeccably dressed and is often compared to comic hero, Clark Kent, to whom he bears more than a passing resemblance. Conn spent two and one half years mapping out the strategy he would use to dismantle the Menendez defense.
Leslie Abramson continued to represent Erik, although she was paid by the taxpayers of Los Angeles County because the Menendez estate had run out of money. Abramson was assisted by Barry Levin, a Los Angeles criminal defense attorney. The Los Angeles County Superior Court declared both Lyle and Erik indigent. Lyle qualified for representation by the public defender's office. Jill Lansing no longer represented Lyle and was replaced by Charles Gessler, a Los Angeles County Public Defender, who was considered the dean of the death penalty bar. This would be Gessler's last case before retiring. Gessler was assisted by deputy public defender, Terri Towery.
On August 21, 1995, jury selection began in the retrial of the Menendez brothers. On October 11, 1995, opening statements began. Judge Weissberg ruled that the trial would not be televised because it would "increase the risk that jurors would be exposed to information and commentary about the case outside of the courtroom." Weissberg also limited the number of witnesses the defense was able to call regarding the allegations of abuse. During the retrial, 64 witnesses testified. This was in contrast to the first trial where 101 witnesses testified. The retrial lasted 23 weeks and more closely resembled a regular murder trial: somber, gruesome, and occasionally dull rather than the media spectacle of the first trial.
During the two and one half years between trials, Conn studied the mistakes made by Bozanich and Kuriyama to make sure he did not repeat the biggest mistake of the first trial Bozanich's decision not to address head-on the brothers' allegations of years of physical, emotional and sexual abuse. Bozanich and Kuriyama had ignored it all, guessing incorrectly that jurors would too. The prosecution hired Dr. Park Elliott Dietz, a well-known forensic psychiatrist, to assist them.
Conn presented a new theory about the way in which the killings were carried out. Conn decided not to call Dr. Oziel to testify and instead planned to play a tape of the brothers confessing to the murders. Conn vigorously attacked the defense theory that the brothers suffered from battered person's syndrome and was successful in having Judge Weissberg rule that the defense could not present this theory to the jury. At the first trial, Bozanich believed that this defense applied to the brothers.
In his opening statement, Conn argued that the Menendez brothers were motivated by greed when they ambushed their parents. Conn illustrated his points by showing jurors autopsy and crime scene photographs. Conn said that the brothers "were carrying their dead parents' safe to the home of a probate attorney" 24 hours after they murdered their parents. Conn argued that the brothers were trying to get their hands on their parents' money as fast as they could.
Leslie Abramson countered that the brothers killed out of "mind-numbing, adrenaline-pumping fear" that their parents would kill them for threatening to expose the family's secrets.
Abramson told the jury that "we will prove to you that Erik was tortured, terrorized, exploited, molested and abused to such a state he lived in a constant state of fear."
Charles Gessler told the jurors that the brothers believed that their parents had supernatural powers and "knew everything" about their sons' activities. Gessler argued that the prosecution's theory that the brothers wanted their parents' money was wrong because Lyle and Erik thought that their parents' had disowned them.
Conn began the prosecution's case by playing three tapes that incriminated the brothers. The first tape Conn played was of the brothers being interviewed by members of the Beverly Hills Police Department. The interview took place one month after the murders and the brothers were heard saying that they had not had any problems with their parents and discussing their activities on the day of the murders. Conn next played the tape of the brothers admitting to Oziel that they killed their parents. The last tape Conn played was of Lyle's 911 call to the Beverly Hills Police Department on the night of August 20, 1989. Conn told the jury that the brothers "had spun a web of lies after the killings and turned to tears" so they would not be suspected.
Perry Berman's testimony was similar to that of his testimony during the first trial. He testified that Jose was critical of Lyle's taste in women and was a strict parent. Judge Weissberg limited the scope of Terri Towery's cross-examination, throwing out as irrelevant some questions that probed recollections that cast Jose in a negative light.
During the second week of trial, the prosecution presented evidence to support its theory that greed motivated the brothers to kill their parents. Klara Wright, the wife of a probate attorney that the brothers retained, testified that the brothers brought a safe to their home hoping to find a copy of their parent's will inside. Wright had not testified at the brothers' first trial because the prosecutors did not know about the safe until after the first trial was over. The safe was opened two days after the murders when Brian Andersen and Carlos Baralt, the brothers' uncles could be present. The safe was empty.
Carlos Baralt testified that two months before the murders, Jose told him that he wanted to disinherit his sons. Conn asked Baralt if he knew of any evidence that Jose sexually abused his sons and Baralt answered no. On cross examination, Baralt was asked by Leslie Abramson why Jose had talked about disinheriting his sons and Baralt answered that Jose was disappointed that Lyle was failing academically at Princeton and that in Jose's opinion, Erik lacked talent, toughness and forcefulness.
During the third week of the trial, Conn announced that Dr. Irwin Golden, the coroner who performed the autopsies on Jose and Kitty would not testify at the trial. Golden had testified at the first trial that he could not say for certain how many shots were fired or the sequence of shots that killed the couple. In 1995, Golden was heavily criticized for the mistakes he made in the autopsies on Nicole Brown Simpson and Ronald Goldman and was not called by the prosecution in the O.J. Simpson case because of those mistakes. Conn had Dr. Roger McCarthy reconstruct the shootings. Using his reconstruction, McCarthy was able to determine the sequence of shots and showed that the murders were premeditated and deliberate.
The prosecution attacked the credibility of the brothers by introducing portions of a letter that Lyle had written in July 1991 to Amir (Brian) Eslaminia, a potential defense witness. The letter asked Eslaminia to testify falsely that the brothers had asked him to loan them a handgun. Eslaminia was a former classmate of Erik Menendez at Beverly Hills High School. Neither the letter nor Eslaminia played a role in the first trial because the police learned about Eslaminia and the letter in 1995. In 1984, members of the "Billionaire Boys Club" murdered Eslaminia's father as part of an extortion plot. His brother Reza was imprisoned for his role in the crime. Gessler told the jury that Lyle did not go through with the plot. Abramson tried to show that Erik had nothing to do with Lyle's plan.
Conn called a private pathologist, Robert Lawrence, to support the prosecution's new theory of the crime scene. The prosecution believed the Lyle and Erik executed their parents and then shot them in the leg in order to make the murders appear to be organized crime hits. Lawrence illustrated his testimony with wooden mannequins pierced with wooden rods to demonstrate his conclusions regarding the angles of the shotgun blasts. Lawrence testified that Jose was struck four times and Kitty was struck nine times with shotgun blasts and that they were shot in the head and extremities, but were not shot in their torsos. Lawrence also testified that Jose was seated on the sofa when he was shot and that the wound to his thigh was inflicted after he had died. The fatal shot was fired at point blank range to the back of Jose's head.
Most of the shots to Kitty occurred when she was lying on the floor and that some of shots to Kitty's arms, hand and shoulder indicated that she might have been cowering. Abramson tried to show that the blood patterns on the shirt Jose was wearing indicated that the shots might not have been fired in the direction that Lawrence claimed they were.
Roger McCarthy of Failure Analysis Associates reconstructed the August 20, 1989 murders, shot by shot, and showed the jurors a computer-generated recreation of the murders. McCarthy was the prosecution's star witness and testified that the brothers surprised their parents as they sat in front of the television set in the family room. McCarthy testified that Jose and Kitty were sitting side by side on a sofa when they were attacked and that the brothers aimed "kneecapping" shots at their parents to make the killings look like a Mafia hit. The brothers maintained throughout their trial that their parents were standing when the shooting began.
Gessler questioned McCarthy about his qualifications to examine the Menendez murder scene. McCarthy testified that he had never visited a crime scene or witnessed an autopsy and that he had never seen the impact of a gunshot wound on a human body. He also conceded that he did not consult with the coroner or criminalist before reaching his conclusions about the Menendez murders.
On November 20, Conn rested the state's case against the Menendez brothers. He had called 30 witnesses. The cornerstone of the state's case was McCarthy's computer generated reconstruction of the August 20, 1989 murders of Jose and Kitty Menendez. Conn used the reconstruction to demonstrate to the jurors that the brothers had deliberately and methodically killed their parents. The reconstruction was strongly disputed by the defense and contradicted by the brothers' testimony in the first trial, where the brothers testified that they fired their shotguns in a blind panic.
The defense began its case by calling Martin Fackler, an expert on wound ballistics. Fackler testified that the McCarthy reconstruction could not be considered scientific because it contained too many errors. Fackler said that no one could design a reconstruction of the Menendez crime scene because there were too many variables. Under Conn's cross-examination, Fackler, demonstrated that he did not know the facts of the Menendez case as well as McCarthy.
During Abramson's redirect examination of Fackler, she told the jury about the defense's newest version of events that occurred on August 20, 1989. Abramson said that the brothers had entered the family room and that Jose and Kitty were standing in front of the couch, facing them. Erik began to shoot randomly at his parents. Lyle was to Erik's right and began to fire his shotgun as he walked around the room. Lyle fired the contact wound to Jose's head. Abramson did not describe the shooting of Kitty, but said that she was standing as the shots were fired.
Abramson called Ron Linhart, the assistant director of the Los Angeles Sheriff's Department crime lab, to rebut the conclusions reached by Roger McCarthy. Linhart testified that his blood spatter analysis contradicted much of McCarthy's reconstruction and that his analysis showed that Jose and Kitty must have been standing at some point during the shootings.
Dwight Van Horn testified as a defense witness. At the first trial, he had testified as a prosecution witness about the type of shotguns used in the killings. Van Horn testified that McCarthy's reconstruction was "junk science" because it "ignored evidence in some instances and lacked it in others." Conn attacked Van Horn and suggested that he resented the prosecutors using McCarthy's firm instead of the sheriff's department for the crime scene reconstruction.
Dr. Cyril Wecht, a well-respected pathologist from Pennsylvania, testified for the defense that any "reconstruction of the shootings was doomed to failure," because the victims and the defendants were all moving during the killings. Charles Morton testified that the blood patterns and shotgun pellet holes in the clothing of Jose and Kitty contradicted the prosecution's reconstruction of the crime scene. Morton testified that the physical evidence at the crime scene indicated that Kitty was standing when she was shot. Morton further testified that the blood patterns on and around the family room couch and on Jose's clothing indicated that he had been shot while standing, except for the shot to the back of his head.
On December 6, Erik began the first day of 15 days of testimony. Erik's testimony began much like it did in the first trial where he described details of the alleged sexual abuse Jose supposedly inflicted on him. Under Barry Levine's guidance, Erik testified that his parents were violent: Kitty humiliated and degraded him and Jose beat and molested him. Erik told the jury that he loved his parents and that he did not kill them out of hatred or for money or because of abuse. Erik testified that the brothers feared their parents would kill because they threatened to reveal the alleged sexual abuse.
During the third day of Erik's testimony, Judge Weissberg limited his testimony about allegations of early childhood abuse. The judge rejected as irrelevant some of the stories the defense wanted to introduce. The judge also limited testimony that had little to do with the brothers' state of mind at the time they killed their parents. The defense argued that the brothers' early childhood trauma was critical for the jury to hear so that they could understand why the brothers thought their parents were planning to kill them.
Erik testified that Jose had told him that he had been written out of his will because he was not living up to Jose's expectations. Erik also testified about the circumstances leading up to the taped confession at Oziel's office.
Conn set out to portray Erik as a liar. Conn pointed out to the jury that Erik had lied for six months to the police, his family and friends about the murders before he and Lyle were arrested. Conn attacked Erik's claims that his father had forced sex upon him at the age of 18 when Erik had a car and money to leave his parents' home. Conn asked Erik why he did not join the Army and Erik said that the Army would not have protected him from his father because his father "was the most powerful man I've ever met." Erik later conceded that there were no living witnesses to the sexual abuse. Conn raised the issue of Erik's sexual orientation to show that it was a source of tension in the Menendez family.
Because Erik had "tendered his mental state" as part of his defense, Judge Weissberg ruled that Erik had to undergo a psychological examination by Dr. Dietz. Prior to his involvement in the Menendez case, Dietz had testified in numerous high-profile trials. His critics say that he is biased in favor of the prosecution. Dietz has assisted many prosecutors in winning convictions against defendants such as Betty Broderick, who fatally shot her ex-husband and his second wife, and serial killer Jeffrey Dahmer.
On January 9, 1996, Erik completed his testimony by attempting to explain questions raised by the prosecution during his eight days of cross-examination. Erik said that he and his brother did not concoct stories of child abuse in order to avoid murder convictions.
Dr. John Wilson, a psychology professor from Cleveland State University, testified that Erik suffered from Post-Traumatic Stress Disorder at the time he killed his parents. Wilson testified that the cause of Erik's disorder was the repeated acts of sexual, physical and psychological abuse that he experienced. Wilson said that Erik suffered from the classic symptoms of Post-Traumatic Stress Disorder that included nightmares and amnesia. This was the first time that jurors had heard a specific diagnosis applied to Erik Menendez. Wilson did not testify at the first trial.
On January 12, Charles Gessler completely changed the direction of Lyle's defense. Gessler told the court that he planned to argue that Lyle killed his parents in the heat of passion, that fear and anger overwhelmed him on August 20, 1989 when he and Erik murdered their parents. During the first trial, Lyle had testified that he killed his parents out of the honest and mistaken belief that his parent were going to kill him and that he was afraid for his life. Gessler now told the jury that Lyle was a reasonable man who reacted out of fear, anger and passion. At the first trial, the defense used the "imperfect self-defense theory" and argued that the brothers could not be judged by the standard of what a reasonable person would do because years of abuse caused the brothers to see danger differently than a normal person.
The reason that Lyle's attorneys changed defense strategies was that Lyle did not want to testify because of damaging impeachment evidence the prosecution had gathered since the first trial. Lyle was considered a sympathetic witness during the first trial, however prosecutors had tape recorded conversations between Lyle and Norma Novelli, Lyle's one-time confident, where Lyle describes how he "snowed" the jury at his first trial with his testimony about abuse. The prosecution also discovered a letter Lyle had written to a former girlfriend instructing her on how to testify at the first trial. Because Lyle did not testify, his attorneys were not able to call child abuse experts to testify about his state of mind. Without Lyle's testimony, he was not able to use the same defense as he had in his first trial.
At the beginning of the trial, the brothers had mounted a joint defense. However, as the trial wore on, Gessler relied almost completely on Abramson's witnesses and called very few on behalf of Lyle. As a result, Lyle remained somewhat of an enigma to the jury.
Toward the end of the defense case, Judge Weissberg ruled that six witnesses who had testified at the first trial were irrelevant to the second trial and would not be allowed to testify. Weissberg ruled that the parents' alleged psychological mistreatment of the brothers was irrelevant.
On January 30, after presenting 25 witnesses, the defense rested. Judge Weissberg limited the number of mental health experts the defense was allowed to present. In the first trial, the defense presented five experts. At the second trial, the defense was allowed to present only one. In addition, the defense was not allowed to present the testimony of Dr. William Vicary, the psychiatrist who had treated Erik since 1990.
The prosecution began its rebuttal on February 5, 1996. Jaime Pisarcik testified that Erik knew that Lyle wore a toupee as early as 1988. Pisarcik's testimony called into question a major part of the defense's case that a number of confrontations between Jose and Kitty and Lyle and Erik lead to the murders on August 20, 1989.
Dietz testified that Erik did not suffer from any disorder that would impair his ability to make rational decisions on the night that he murdered his parents. Dietz diagnosed Erik as suffering from generalized anxiety disorder, the inability to control his restlessness, worry and irritability. Dietz had interviewed Erik for 16 hours at the Beverly Hills Police Department. The defense contended that Erik suffered from Post-Traumatic Stress Disorder. Dietz testified that it was impossible to diagnosis Erik with this disorder because he had no way of knowing if the events that were allegedly were true. Dietz also rejected other conclusions presented by the defense's expert witnesses. Dietz testified that Erik did not suffer from "learned helplessness," a symptom of Post-Traumatic Stress Disorder. Dietz pointed out that Erik bought two shotguns, loaded his weapon, and went to the shooting range to learn how to fire the weapon. This behavior showed rebelliousness and assertiveness inconsistent with the passiveness of learned helplessness.
Judge Weissberg did not allow Vicary to testify as he had in the first trial when he testified that he believed Erik's claims of molestation and that Erik killed his parents out of fear. Vicary was allowed to testify as a rebuttal witness regarding Erik's anxiety disorders. The result was that Vicary was a much less effective witness during the second trial.
On February 16, Judge Weissberg ruled that there was insufficient evidence that the brothers were in imminent danger when they fatally shot their parents on August 20, 1989 and that the "imperfect self-defense" jury instruction that the defense sought would not be read to the jury after closing arguments. The "imperfect self-defense" theory was at the center of the defense in the first trial and convinced some of the jurors on each of the two panels to vote to convict the brothers of manslaughter instead of murder.
Judge Weissberg ruled that the defense could argue that the brothers shot Jose in the heat of passion, but not Kitty. Weissberg ruled that there was sufficient evidence to show that Jose might have provoked his sons into committing a homicide, but there was insufficient evidence to show that Kitty provoked her sons.
On February 20, Conn began the first of four days of closing arguments. He ridiculed the brothers' claims of abuse as "the silliest, most ridiculous story ever told in a courtroom." Throughout his closing argument, Conn's tone was belittling and sarcastic. Conn urged the jurors to find the brothers guilty of first degree murder and not manslaughter. He attacked the testimony of Erik and said that it was self-serving and filled with lies and inconsistencies. Conn told jurors that they should reject Erik's claims that his father sexually abused him.
On February 26, Abramson began the first of three days of closing arguments. She accused David Conn of presenting fraudulent witnesses in an effort to win a case for "political reasons." Abramson was trying to point out to the jury that the Los Angeles County district attorney's office was under enormous pressure to win a "big case" after losing the McMartin preschool molestation cases, the first Menendez trial and the O.J. Simpson murder trial. She attacked Conn for using the taped confession from the December 11, 1989. Abramson attacked the prosecution theory that the brothers fired shots at Jose and Kitty's knees in order to make the killings appear to be a Mafia hit. She argued that the crime scene indicated that the killings were "highly emotional overkill" and not a professional hit.
Abramson told the jury that Erik had a mental disorder, Post-Traumatic Stress Disorder, and was in a state of mind at the time of the killings where he did not harbor malice. Abramson attacked the prosecution's theory that the brothers killed for money. "Parricide doesn't happen for money," she said. Abramson concluded her closing arguments with an emotional plea. She told the jury how close she had grown to Erik and that it would be "the ultimate tragedy" in her life if he were convicted.
Gessler's closing argument was low-key. He attacked the prosecution arguments that the brothers killed their parents in order to get their hands on their money. He said that Lyle believed he was disinherited and would lose his means of support if his parents died. Gessler asked the jurors to find Lyle not guilty of murdering Kitty and guilty only of manslaughter in the death of Jose. Gessler compared the Menendez case to a Greek tragedy, suggesting that Jose and Kitty had brought about their own demise because of fatal mortal flaws. Gessler added that Jose caused his own death by molesting his sons and making them believe that they could not escape from him. The brothers felt that their only option was to arm themselves. Gessler argued that Kitty brought about her own death by not protecting her sons and by making them believe that she was an enforcer of her husband's abuse.
On February 29, closing arguments ended with Conn telling the jury that Lyle and Erik blamed their victims, put their parents on trial, created a clever abuse excuse and told many lies in order to justify shooting their parents.
On March 1, the jury began to deliberate. On March 14, Judge Weissberg removed two female jurors, including the foreperson for medical reasons. The foreperson had suffered a heart attack and another female juror had gone into premature labor. One male alternative juror and one female alternative juror replaced the two female jurors. Jury deliberations would begin all over. This second jury consisted of eight men and four women.
On March 20, after four days of deliberation, the jury convicted the Menendez brothers each of two counts of first degree murder, as well as conspiracy to commit murder. Jurors also found that there were two special circumstances attached to the murders: lying in wait and multiple murder. Because special circumstances were found, there were only two sentencing options: life in prison without the possibility of parole or death by execution. The same jury that found the brothers guilty of first-degree murder would deliberate after a second, smaller trial, called the penalty phase, to determine the brothers' sentences.