Developments in the retrial of Lyle and Erik Menendez from April 8 - 12.
APRIL 8
Turmoil and chaos continued in the penalty phase of the trial as Erik Menendez and his attorneys met privately with the judge in an apparent effort to determine the fate of Leslie Abramson and her role in the case.
The public, prosecutors and even Lyle Menendez and his lawyers were excluded at the request of Abramson co-counsel Barry Levin. He asked for the hearing to discuss what he called matters of "dire urgency and extreme privilege."
The controversy erupted after psychiatrist Dr. William Vicary, who has treated Erik since his arrest, admitted last week that he altered notes of those sessions at the direction of Abramson.
At a subsequent hearing, Abramson invoked her Fifth Amendment privilege not to incriminate herself and refused to answer Judge Stanley Weisberg's questions about the possible misconduct.
On Monday, it is almost certain that the lawyers discussed whether Abramson should be removed from the case and whether Erik should have independent counsel. Judge Weisberg apparently has appointed a Woodland Hills criminal defense attorney, Bruce Hill, who confirmed that he is working independently for the court. Hill spent the afternoon in the courtroom with Erik and his attorneys.
Levin previously said that he would advise Erik to fire Abramson in order to distance himself from any appearance of misconduct. It was unclear what position Erik took during the hearing Monday.
It is hard to imagine the Menendez trial without Abramson. She has been at Erik's side since his arraignment six years ago when he was only 19 years old. She has professed that she considers him more than a client and was devastated by the jury's verdict finding him and his brother guilty of first-degree murder in the 1989 slayings of their parents.
Abramson's fate could be decided Tuesday. When the penalty phase continues, prosecutor David Conn will continue to attack Dr. Vicary's credibility.
APRIL 9
Defense attorney Leslie Abramson will remain on the case, despite a psychiatrist's testimony that she ordered him to alter his notes.
Judge Stanley Weisberg ruled late Tuesday that there was no conflict of interest between Erik Menendez and Abramson that would require her removal from the trial. It was clear that even after her fellow attorneys on the case fought to get Abramson removed, Erik had the last word. He spoke to the judge behind closed doors for about 20 minutes. Immediately afterward, Judge Weisberg ruled that Abramson will be with him until the conclusion of the trial.
The judge also denied motions for a mistrial. He ruled Lyle Menendez did not have any grounds for a mistrial based on Abramson's ineffective assistance of counsel because she is not his lawyer. The judge said he would instruct the jurors not to consider Abramson's alleged actions of misconduct when deciding whether the brothers should be sentenced to death or life in prison for murdering their parents.
Despite the judge's rulings, Abramson troubles are far from over. She'll probably face a state bar investigation and some lawyers say possible criminal charges.
The controversy erupted last week when psychiatrist Dr. William Vicary, who has treated Erik since his arrest, admitted that he altered notes of those sessions at the direction of Abramson.
At a subsequent hearing, Abramson invoked her Fifth Amendment privilege not to incriminate herself and refused to answer Judge Weisberg's questions about the possible misconduct. On Tuesday, Abramson withdrew her invocation of the privilege, but then refused to speak in open court and told Judge Weisberg that she would answer his questions only behind closed doors. The judge refused and did not re-ask the questions he asked Friday.
Meanwhile, the judge issued several key rulings on what the jury will hear about Dr. Vicary's notes, what was deleted and why. He said the prosecution can not elicit in front of the jury that Abramson asked him to alter his notes. He directed prosecutors to try and impeach Dr. Vicary's testimony without making any references to Abramson. But, the judge ruled that Dr. Vicary's revelation in front of the jury last week that Abramson directed him to change his notes would not be stricken from the court record.
As Dr. Vicary testified about what was deleted from the original notes, it was clear that Lyle and Erik may be damaged much more severely by the information in the original notes than by the appearance of misconduct by Abramson.
Among the items deleted from the original notes that Judge Weisberg will allow the jury to hear about:
@ Erik's statement that he hated his parents and wanted them out of his life.
@ The conversations the brothers had a week before the killings about what it would be like to live without their parents. ,p>
@ Erik statement about a fight with his parents. He said his mother took his father's side. He said he hated his mother.
The judge still must decide whether the jury will hear about references to Erik's homosexuality.
According to Dr. Vicary's original notes, Erik had homosexual experiences when he was 11, 12 and 16 years old. Asked by Judge Weisberg about why the information was relevant, prosecutor David Conn said, "it puts the allegations of sexual assault (by his father) in a new perspective."
Prosecutors have been trying for years to present evidence that Erik is gay. The state argues that Erik could have fabricated his story based on details of his homosexual relationships.
The state also wants Dr. Vicary to testify about a section in his notes in which he reveals that Erik was raped by a male baby-sitter when he was five years old. The defense has argued that Erik's personality changed when he was a young boy -- he went from being happy and loving to introverted and sad. Conn now wants to argue that the change was caused by the baby-sitter rape -- not the abuse by his father.
The judge is expected to rule on these issues Wednesday before the jury resumes hearing testimony.
APRIL 10
Just a day after the penalty phase of the Menendez brothers trial teetered on the brink of disaster, both sides rested their cases and closing arguments were set to begin.
The state will makes its closing argument first Thursday. When it's the defense's turn, attorney Leslie Abramson will ask the jury not to hold her client responsible for any appearance of misconduct on her part. She'll then let co-counsel Barry Levin deliver the closing argument for Erik Menendez. He'll be followed by Lyle's attorney Charles Gessler.
On Wednesday, defense witness Dr. William Vicary concluded his testimony. The psychiatrist testified that he altered his notes of his sessions with Erik. But he was not allowed to tell the jury that he did so at Abramson's request.
Dr. Vicary admitted that the deleted information was damaging to Erik and Lyle. The deleted sections included notes about conversations the brothers had a week before the killings about what it would be like to live without their parents. Also included were notes which detailed Erik's statements that he hated his parents and wanted them out of his life.
Judge Stanley Weisberg did not allow prosecutors to introduce evidence from the notes that Erik had homosexual relations when he was 11, 12 and 16 years old, and that he was raped by a male baby-sitter when he was five-years-old. Prosecutor David Conn argued that because Erik had homosexual experiences, he could not have been so traumatized by his father molesting him.
Under re-direct examination, Dr. Vicary admitted that he should not have doctored his notes, but said he never committed perjury and that his role was still "to tell the truth, the whole truth and nothing but the truth."
After Dr. Vicary's testimony, the state presented three rebuttal witnesses: a detective and Kitty Menendez's two brothers, Milton and Brian Andersen. They testified about how they remembered their sister and how devastated they were when she was taken from them.
"She was a beautiful person, " Milton Andersen said. "She always had a special care for people. family and myself."
Brian Andersen broke down in tears as he testified about the nightmares he has about the murders. He said he would wake up in the middle of the night screaming, thinking that his sister was alive during much of the shooting spree.
"I dream of her all the time. I miss her...It's not been easy, especially knowing how she died," he said.
During his testimony, prosecutors introduced a videotape of Andersen, Erik, Jose and Kitty Menendez, taken nine days before the killings. The scene was of a happy, healthy family on a family trip. Everyone was smiling, waving at the camera and talking to each other. Erik waved at the cameras and said, "hello everyone out there in TV land." The last thing Kitty said before the camera was turned off was, "here were are -- all safe."
APRIL 11
Lyle and Erik Menendez were born with silver spoons in their mouths but are just as eligible for the death penalty as people from poor neighborhoods, prosecutor David Conn told jurors during the first day of closing arguments in the penalty phase of the trial.
Conn argued that the brothers should be sentenced to death because they chose to kill their parents in a horrifying brutal way. At one point, he presented a large illustration showing a scale weighing aggravating and mitigating circumstances. On the aggravating side, a gory crime scene photograph was displayed. On the mitigation side, were the words, "too much tennis. Not enough hugs."
Conn proceeded to ridicule the defense allegations of psychological abuse, calling them desperate and trivial. "You should reject this country club excuse," he told the jury.
Erik's lawyer Barry Levin began his closing argument by attacking the Los Angeles District Attorney's office -- accusing it of arbitrarily deciding who should be eligible for the death penalty. He reminded jurors of the brutal murders of Nicole Brown Simpson and Ronald Goldman and said, "what about OJ. He's not even eligible for the death penalty."
Levin's argument was extremely emotional. He stormed around the courtroom, yelling, putting his hands on Erik's shoulders and pointing at prosecutors. He told the jury that prosecutors did not present any evidence of aggravating circumstances other than the crime itself.
"What Mr. Conn is telling you to do is kill them because they're really, really, guilty," he said. "You cannot bring back Kitty and Jose Menendez by killing their sons."
In explaining what jurors can consider when deliberating the fate of the brothers, Levin said, "you cannot be mad at Erik Menendez and give him death. You cannot hate Erik Menendez's life and give him death ... You are leaders of Erik Menendez's life and if you feel any compassion this is the time to use it. If you feel any mercy, this is the time to use it."
APRIL 12
After a marathon day of emotional closing arguments, the question of whether Lyle and Erik Menendez should be sentenced to life or death went to the jury.
The jury must decide separate verdicts for each brother. It also must return verdicts on each victim.
Once a verdict is reached, defense attorneys can ask the judge to change a sentence of death to life in prison. The judge can not change a life verdict to death.
The attorneys made their final pleas to jurors -- prosecutors for death, defense attorneys for life. But Leslie Abramson, who has represented Erik Menendez since his arrest, did not say anything. After possibly having lost her credibility because of allegations that she asked an expert defense witness to change his notes, she let co-counsel Barry Levin make the final argument.
Levin argued that Erik's life should be spared because he did not have a prior history of violent crime or felony convictions and because he was sorry for his crimes.
"Erik Menendez will spend the rest of his life locked in a cell the size of your bathroom," Levin told the jury. ``He will spend the next 50 or 60 years there until he dies."
He urged the jury to take into consideration that Erik was only 18 when he killed his parents. ``Would any of us want to be judged by a decision we made at 18 years old?" he asked the jury.
Lyle's attorneys, Terry Towery and Charles Gessler, described their client's childhood, saying he was a scared kid who was not allowed to cry or show any emotion. They said he lived under the constant pressure to succeed at any cost.
At the end of his argument, an emotional Gessler seemed about to break down in tears. He walked over and squeezed Lyle's shoulders and asked the jury to spare his life.
"Lyle Menendez will spend the rest of his life in prison," Gessler said. "But at least no one will ever again tell Lyle Menendez that you have to be No. 1."
Prosecutor David Conn reminded jurors that Lyle once said he misses his parents but he also misses his dog. Conn demonstrated how he believes Lyle straddled his dying mother, leaned down close to her and fired one last shot through her see face.
"Look at those eyes," Conn said, walking toward Lyle and pointing at him. "You see black eyes, dead eyes. And they should be dead."
