L.A. Prosecutors Learned Lesson In Menendez Case -- Tactical Shift Won Guilty Verdict In Brothers' Retrial

LOS ANGELES - The Menendez brothers' prosecutors apparently learned their lesson the first time.

As the retrial unfolded, they stymied the defense's abuse theory, focused on the Menendez parents' gruesome shotgun slayings and prompted the judge to all but limit jurors to a verdict of murder.

The result: first-degree murder convictions yesterday for both Erik and Lyle Menendez. Quite a contrast from the first trial, which was dominated by the theme of abuse and ended in juries deadlocked between murder and lesser manslaughter verdicts.

Quite a boost, too, for the image of the much-maligned Los Angeles jury, legal experts said. And, added political experts, the timing couldn't be more delicious for District Attorney Gil Garcetti, who stands for re-election next Tuesday.

UCLA law professor Peter Arenella said the "ultimate legacy" of the Menendez case is not whether the brothers are sentenced to death or life in prison without parole in a hearing that begins Monday.

Instead, it's what happens to their case on appeal - whether the higher courts uphold Superior Court Judge Stanley Weisberg's controversial decision against giving jurors the option of manslaughter.

If that decision is affirmed, Arenella said, it may severely undercut the ability of abuse victims to present a "viable" defense.

But the verdicts should serve as a resounding "step toward rehabilitating the image of the Los Angeles jury," said Loyola Law school professor Laurie Levenson.

Los Angeles had "in some ways become somewhat of a laughingstock," Levenson said. "Now we finally have a high-visibility jury showing that they can (convict) too."

The convictions marked one of the few times the D.A.'s office has won a high-visibility case during Garcetti's tenure - having failed to secure convictions in the O.J. Simpson double-murder case, the Snoop Doggy Dogg murder trial and others.

The prosecution tactics marked shrewd turnabouts from the strategy at the first trial, according to Levenson and others.

The biggest mistake at the first trial turned out to be Deputy District Attorney Pamela Bozanich's far-reaching decision not to address head-on the brothers' allegations of years of physical, emotional and sexual abuse.

Deputy District Attorney David Conn, who headed the prosecution team at the second trial, instead followed a no-holds-barred strategy of attacking and ridiculing the stories of abuse at every turn. The tactic enabled him in the end to set the agenda in the courtroom - much as fiery defense attorney Leslie Abramson had done in the first trial.

Many of the prosecution victories occurred before the second trial even began.

One was gaining Weisberg's approval to try both brothers before a single jury. "A single jury is always more conducive to forcing the hard decisions on the table for jurors," Southwestern University law professor Robert Pugsley said.

Prosecutors also kept more than 30 of the brothers' friends, teachers and coaches off the stand, arguing that their testimony at the first trial - which veered onto such subjects as hairdos and pet ferrets - was irrelevant.

In the long months between the two trials, prosecutors amassed damaging evidence that suggested Lyle Menendez tried to coach witnesses to lie during the first trial.

The older brother's tearful testimony riveted jurors during the first trial. He did not take the stand at the retrial.

When the retrial began, Conn made the grisly slayings on Aug. 20, 1989, the centerpiece of the prosecution case. He and Deputy District Attorney Carol Najera spent a full month graphically showing how the parents were killed in the TV room of the family's Beverly Hills estate.

Then, in a dramatic turn, Conn called one of the top forensic psychiatrists in the country, Dr. Park Dietz, to testify that Erik Menendez was rational when he and his brother fired their 12-gauge shotguns.

At the first trial, prosecutors did not refute the testimony of psychologists and other mental-health experts hired by the defense with expert witnesses of their own. Bozanich reasoned that doing so would give credence to the allegations of abuse.

More than anything else, however, the key to the retrial rested on a different prosecution approach to the law - in particular, to a section of the evidence code that gives battered women the right to present evidence of abuse.

At the first trial, Bozanich said she believed that law applied to the brothers. Conn maintained it simply didn't apply to them. For one thing, he argued in court, they weren't women.

That triggered a series of hearings that led to a ruling from Weisberg that the jury would not be able to reduce murder to manslaughter by considering whether abuse had led the brothers to kill out of fear for their lives. ----------------------------------------------------------------- The Menendez case

1989

Aug. 20 - Jose Menendez, 45, and his wife, Mary Louise "Kitty" Menendez, 47, are slain in their Beverly Hills mansion. Sons Lyle and Erik report finding bodies.

1990

March 8 - Lyle and Erik are charged. Lyle is arrested.

March 11 - Erik arrested.

1992

Aug. 27 - State Supreme Court rules notes of psychiatric sessions in which brothers admit killings can be released.

Dec. 8 - Brothers indicted on murder and conspiracy charges.

Dec. 29 - Brothers plead not guilty.

1993

Jan. 12 - Prosecution decides to seek death penalty.

Feb. 9 - Judge decides each brother will have his own jury.

June 8 - Erik's attorney, Leslie Abramson, discloses brothers will admit killings and claim self-defense.

Sept. 10 - Lyle testifies father raped him at age 7 and abused Erik for 12 years, and says his mother was cruel, suicidal and taunted him sexually.

Sept. 27 - Erik testifies he was sexually tortured by his father.

1994

Jan. 13 - Mistrial declared in Erik's case. After 19 days, jury cannot decide between premeditated murder and self-defense.

Jan. 28 - Mistrial declared in Lyle's case after 25 days for same reason.

1995

Aug. 23 - Selection of one jury for retrial begins.

Nov. 20 - Prosecution rests.

1996

Jan. 9 - Erik concludes 15 days of testimony, claiming sexual and physical abuse. Lyle does not testify.

March 1 - Jury begins deliberating after 78 days of testimony.

March 14 - Jury has to start deliberations over after illness forces judge to replace two panelists.

March 20 - Jury convicts brothers of first-degree murder.