The Menendez Brothers Could Be Freed: Here’s How It Would Work

22 Oct 2024, 15:30 by Gene Maddaus · Variety

District Attorney George Gascón could announce as soon as this week that he is seeking to have the Menendez brothers released from prison.

Lyle and Erik Menendez are serving sentences of life without parole for the August 1989 murders of their parents, Jose and Kitty. The Netflix series “Monsters” and the documentary “The Menendez Brothers” have brought renewed attention to their case and to the defense that they were both victims of their father’s sexual abuse.

Gascón, a reform-minded prosecutor, has indicated some sympathy for their cause, and he might go along with a defense request to reduce their sentences.

The latter is more likely. A habeas petition requires a high bar — that new evidence has emerged that would likely have resulted in a different outcome at trial. But for resentencing, it’s a much lower standard. All that is required is that the D.A. believes a reduced sentence is “in the interest of justice.”

How significant is the new evidence?

Menendez’ lawyers filed a petition for habeas corpus in May 2023. It included a letter Erik Menendez sent to his cousin in December 1988, eight months before the murders, which appears to corroborate his abuse claim. It also included a declaration from Roy Rossello, a member of Menudo, who alleges that Jose Menendez raped him in 1984. Gascón said the D.A.’s office has received a photocopy of the letter, but the original has not been authenticated.

The new evidence is critical to the habeas petition, but is not required for resentencing.

What goes into the D.A.’s determination that resentencing is “in the interest of justice”?

The resentencing factors are listed in state law and in Gascón’s Special Directive 22-05. They include things like a defendant’s childhood trauma, such as “abuse, neglect, exploitation, or sexual violence,” as well as the defendant’s conduct in prison. The D.A.’s resentencing unit is currently looking over the brothers’ prison file.

The brothers’ attorney, Mark Geragos, has said that they have been model prisoners, that Lyle Menendez recently got his college diploma, and that they “clearly qualify” for resentencing.

According to the D.A.’s office, 300 people have been resentenced during Gascón’s administration, including 28 people convicted of first-degree murder and five who were serving life without parole.

How quickly could this happen?

After the habeas petition was filed last year, Judge Ryan asked the D.A.’s office to give an informal response. The deadline has been repeatedly postponed, and is currently set for Nov. 26. No hearings are scheduled in the case, though Gascón has mistakenly said that a hearing was set for Nov. 29.

The D.A. did not show much urgency about the issue until an Oct. 3 press conference, which came in response to media inquiries that were prompted by the Sept. 19 release of the Netflix show. (Gascón has said he will not watch the show because he does not want a fictionalized portrayal to enter into his thinking.)

Gascón has said he wants to bring “finality” to the case, and is expected to take some action this week.

Then what would happen?

If Gascón asks for a new sentence, a judge must set a status conference within 30 days. The judge could resentence the brothers on that date, or could elect to schedule a hearing at a later date to consider the request.

Does the judge have to go along with the D.A.’s request?

No, but the D.A.’s request gets a lot of weight. To deny the request outright, the judge must find that the brothers currently pose “an unreasonable risk of danger to public safety.” That is a high bar — it means the risk that the defendant will commit one of a handful of violent felonies.

But even if the Menendez brothers are entitled to resentencing under that standard, they are not entitled to the particular sentence requested by the D.A. In other words, Gascón may request that their sentences be reduced from life without parole to time served. But the judge could decide to reduce their sentences to, say, 50 years to life, or 25 years to life.

Do the victims’ family members have a right to be heard?

Yes. Marsy’s Law, a voter-approved amendment to the California constitution, gives victims the right to be notified of and to be heard at proceedings involving their case, including hearings to discuss post-conviction release.

Most Menendez family members support the release of the brothers. But Milton Andersen, Kitty’s brother, opposes it. His attorney, Kathleen Cady, has filed a request to be kept informed of court dates and to be heard on the issue. She has also sought a meeting with Gascón’s office, though that has not happened yet.

What if Gascón loses?

Gascón is trailing badly in the polls. If he loses on Nov. 5, he would remain in office until Nathan Hochman is sworn in on Dec. 2. That could well be enough time to hold a resentencing hearing.

If the Menendez proceedings are postponed beyond Dec. 2, Hochman could decide to change the office’s position. The judge could then allow the request to be withdrawn, provided Hochman’s office makes the withdrawal before a ruling on the merits and gives some legitimate reason. An appeal would likely follow to determine whether Hochman’s reasons were sufficient. The judge does not have to grant the withdrawal — he could hold Hochman to Gascón’s position.

Hochman has not taken a position on the issue, but has criticized Gascón’s handling of the case.

What happens if they’re resentenced to an indeterminate sentence?

The brothers have already served 34 years in prison. If the judge resentences them to, say, 25 years to life, they would then go before the Board of Parole Hearings to determine if they are suitable for parole. If they were resentenced to 50 years to life, they would have to serve the balance of the determinate portion before being eligible for parole.

Gov. Gavin Newsom would have the power to approve or reject the Parole Board’s recommendation.

Is this all about politics?

At the time of the brothers’ two trials, public opinion was strongly against them. In 1995, their defense team conducted a poll that showed a majority believed they were guilty of first-degree murder.

Geragos and the Menendez family believe public opinion has shifted in their favor in the decades since thanks to heightened awareness of child abuse. In recent days, Gascón has been inundated on TikTok with comments urging him to free the brothers.

Hochman has argued that Gascón is using the Menendez case to crowd out other damaging stories about his record in office in the final weeks of the campaign.

Tiffiny Blacknell, Gascón’s chief of staff, told Variety that it’s “absurd” to think he is pursuing clemency for the brothers for political gain.

“His biggest criticism is he’s soft on crime,” she said. “So letting the two murderers out wouldn’t seem to be the best move politically.”