The defence could only have been in fear of how he would react. Lyle, the older brother, the one seen as the driving force behind the plan, was a tough, resilient, even cold man, well able to fence with Bozanich and turn her words against her, able to meet the eyes of the jury and - most likely - lie through his teeth convincingly. Erik, on the other hand, was the weaker of the two, the younger, the one who was more sensitive. He had broken down after the murder, and it had been Lyle who had had to keep it together when the cops came. How would he fare now, away from his brother’s protection, out of the sheltering arms of his god (as he had once described his brother), all alone in a small box and subjected to the laser-sharp focus of Bozanich’s interrogation? If anyone were to break, she must have known her best shot was with the younger Menendez, and she was not about to go easy on him.
The problem here was twofold. First, all the “good bits”, to use an entirely inappropriate term (if this wasn’t all made up) had already been heard by the jury. If the abuse was real, then both had suffered more or less the same, and so there really wasn’t much new to be revealed. The shock, such as it was, had been already felt and Erik was now treading over old ground. Not that repeating it might make the abuse seem less in the eyes of the jury, but the first time you hear something shocking you react, the second time, not so much. Add to that the fact that, perhaps despite expectations to the contrary, Erik Menendez was not overly emotional on the stand - in fact, after an initial tearful outburst it was said he looked more mentally deranged than upset - and the impact of his testimony further withered. In fact, it might even seem that having Erik testify all but damaged the case, as the sympathy that had been begun to be built up for his brother started to slowly evaporate.
As well as that, Erik’s contention that his mother was spying on them, had tape-recordings of conversations they had had and had tapped their phone lines is not backed up by any evidence. If such recording equipment existed, surely the police would have found it? But nothing is mentioned, so it had to be made up. Kitty would not have had the time - or indeed, thought it necessary - to get rid of it, as she had no idea she was about to be killed, so if it was there, where did it go? Another piece of nonsense that helps both show that these two killers were not anywhere near as clever as they thought they were, and that they were making things up. And they surely were. And I think they went too far, tried to be too graphic. In Erik’s account of the alleged abuse, he spoke of his father sticking pins and tacks into him in various places. As a counterbalance to that, a local rag had the so-called story of a hooker whom Jose had used for “rough sex”, but seemed to entail only (!) choking. If Jose was* this depraved, would he not have broached the subject of this kind of treatment with the woman, and even if she had - probably quite rightly and sanely - told him to **** off, would she not, if they were trying to paint him as a monster, have mentioned that this was what he wanted to do, even if she refused? But all she could come up with was that he liked to choke her. Sick, but not necessarily that big a deal.
It now also emerged that Jose - surprise, surprise! - was homophobic. Now, I suppose there are some ways people like that can get around and justify and excuse sex with boys, convincing themselves that it’s not gay (though of course it is, but far worse than that) but if a man is that much against sex with other men - Jose was said to “hate gay people” - then why would he even be attracted to his sons? It really doesn’t make any sense. And then Erik tried to say that he had begun putting cinnamon in his father’s tea, so that his semen would taste better. How could anyone get away with putting cinnamon - a very strong, spicy taste - in what they drank without them noticing? As well as this, far from being the abuser and crazy person Erik and Lyle both described her as, Erik’s first girlfriend, Jan, saw Kitty as a sister, and said she helped to hold the family together.
If anyone’s ever watched
Judge Judy, you’ll know that one of her well-used maxims is that if you tell the truth you don’t have to have a good memory. This is, in fact, inaccurate; you could easily have a bad memory and be trying to tell the truth, and in fact our memories work, as I have recently found, in such a way that we don’t actually remember what happened, but the last time we remember remembering, if you understand. Our memories are predicated on the most recent data, like computers that have been recently backed up, but the original files may have been overwritten, lost or changed since then. I’ve seen this in action myself; something I was certain was true turns out to be not at all as I remembered it, as I watch the evidence myself and say “But I could have sworn…” So our memories are not actually reliable, unless I suppose you’re someone who has an eidetic (photographic) memory.
However, leaving that to one side, the other half of that quote is true, mostly: if you lie, you have to keep remembering what the lie is. This is of course why when two people have been accused of and arrested for a crime, the police will interview each separately, to see if their stories match, to see, in effect, if they are lying, if they both tell - or remember - the same lie. It can, I’m sure, be very hard to keep all the details straight, and this pressure to keep lying, and lying properly, would have a devastating effect on the defence as one of the boys’ lies would be revealed in stark and stunning effect. And like any attorney who knows he has an ace up his sleeve, Kuriyama would lead his victim into the trap slowly and with relish before snapping the steel jaws tight on him, and leaving him nowhere to go.
A major part of the Menendezes’ story was that they had looked in the Big 5 store at guns, but had decided not to purchase there due to the fifteen-day waiting period, which they could not afford to observe. After ensuring that Erik knew exactly what he was saying, after removing any doubt or the possibility of misunderstanding or misinterpretation, after getting Erik to repeat his words so that the boy was completely aware of what he was swearing to, Kuriyama dropped the bomb. He told Erik - and the jury - that the Big 5 stores had ceased carrying handguns a year prior to the boys supposedly shopping and seeing them there for sale. Gasps erupted around the courtroom. The hearts of the defence team must have sunk. Erik looked outmanoeuvred and shocked, unsure what to say in the face of such damning contradiction of what he had sworn to be the truth. The best he could do was stutter that maybe it wasn’t a Big 5 store - but hadn’t they the receipt?
Apart from anything else, this huge blunder - and it was huge - threw a bright, sharp light on the defence team of Abramson. Why had her people not checked to see if the Big 5 did carry guns at that time? Why had they allowed such an important piece of evidence elude them, and show their clients up for the liars they were? And if they had not checked that, what else had they missed? What else might the surely now feeling triumphant prosecution team reveal? Was their entire case now to be blown apart due to a lack of thoroughness in checking facts? One final thought before the prosecution finished its cross-examination, one last shot across the bows, a grenade launched into the defence. Kuriyama showed a picture of the death scene, in which it could be seen there was an application form for UCLA ready to be filled out. If the parents were planning to kill their children, he asked, if, as Jose had sighed, “it didn’t matter any more”, then why were they bothering to fill in the application?
As they say, mic drop.
However, there was of course no way that Abramson and her team were going to allow testimony as to whether or not Erik and Lyle had been abused to hang only on the boys’ own accounts, and as in any alleged abuse case (though this was not, as Pam Bozanich pointed out sharply, an abuse case but a murder one), the experts were wheeled in. As is quite often the case with experts, they don’t like their opinions to be challenged, and so it was with the first, Dr. Ann Tyler. As she constantly focused on the “abuse” Erik has supposedly undergone, she made no reference to the murder and kept calling him a “child”. Bozanich set her straight, asking questions like, had she even read Oziel’s notes (she hadn’t) and if she seriously considered the jewel burglary that the two had pulled off as “acting out” and a “prank”? Her most damning question was saved for last, when she snapped “How does a child suffer abuse from year zero?” in response to Tyler’s contention that, somehow, Erik and Lyle had both been abused
before they were born! What happened? Jose shout at them in the womb? Punch Kitty in the stomach?
Her badgering was so bad that the usually hard-as-nails Abramson was moved to request an admonition from the judge for Bozanich’s treatment of the witness, claiming (with a straight face, mind) that it was “disrespectful”. She was, of course, overruled. Tyler left the witness box a lot less confident and sure of herself than she had been when she had entered it. Bozanich even noted that she felt sorry for her, that it was nothing personal, just her job. Kuriyama had no such qualms, and believed she deserved everything she got. The second defence witness, Professor Ann Burgess, an expert in psychiatric mental health, claimed that the murder had not been pre-planned, and introduced a phrase nobody had heard before to the case, but which the defence would no doubt use again and again: automatic pilot. It was a handy way of saying that the two Menendez brothers had no real control over their actions, that their senses had been heightened to the point where instinct had taken over and they just went along for the ride. Bozanich snarled at her if she knew what psychobabble was? Professor Burgess lied she did not: everyone knows what psychobabble is.
Trials like these ones bring all sorts of people out of the woodwork, and you can bet the crazies will come, too. And they did. Kuriyama received death threats, as did the judge and as an umbrella group, the prosecution. A woman stood outside bewailing the lack of sympathy being given to “abuse survivors”, and as usual the late-night talk shows and comedy show discussed the trial, made up skits, lampooned the brothers. From what I’ve read anyway, just them: I see a
Saturday Night Live sketch where the sympathy was clearly with the prosecution, and while there may have been others who were not, there’s no accounts of them. That’s not to say that all of America was against the Menendezes, but when SNL does a sketch and there are no real objections (or none mentioned anyway) it’s usually a pretty clear indication that the majority at least of their viewers agree, or at least do not disagree or don’t care enough to phone or write in.
Dr. Kerry English was a defence witness who caused a lot of trouble, though not from being adversarial or planting false images in the minds of jurors. He found evidence in Erik’s medical records from 1977, where a note was made of a “hurt posterior pharynx, uvula and soft plate…” which are all in the throat and point to an injury there. This could, he said (and of course the defence claimed, had been) be due to being forced to swallow* Jose’s cock. It could, however, he agreed* with Bozanich, be caused by many other factors. It was not proof, but it was the first support to what the boys had been claiming, the first actual possible proof of sexual assault that had not come from their stories alone.
Another doctor, this time Kitty’s therapist, testified that not only had she been suicidal, but she had laid out plans as to how she was to kill herself. However this had been at the time when she had found out about Jose’s lover, Louise. Unsurprisingly, Jose’s colleagues spoke badly of him, calling him controlling, arrogant, vain. Nobody was sorry he was dead, or indeed surprised. But if you inch open a door you would rather remain closed, don’t be surprised if your rival tries to boot it open all the way. Having brought up the issue of the Menendezes’ mental state through the testimony of their expert witnesses, the defence had given Bozanich and her team leeway to demand the release of all of Oziel’s tapes, which up to then the judge had very much restricted access to, allowing only one to be presented in evidence. The prosecution’s argument that once the line was crossed, once Abramson had broached the issue of mental state, they should be able to explore that too, was a compelling one and hard to ignore. Weisberg said he would consider it.
Having weighed up the decisions made by the Supreme Court, the Superior Court and the Court of Appeal, Weisberg ruled that he agreed with all three and would not overrule their edicts. However, in the case of the tapes - particularly the December 11 session, the one Bozanich wanted, in which Lyle apparently laid out his plan to murder his parents - he made a ruling that they were not, as Abramson had contended originally, covered under attorney-client privilege, and he would therefore allow them into evidence. It was a shattering defeat for the defence, whose entire strategy would now have to be reshaped to try to limit the damage - indeed, possibly the carnage - that the revelations on that tape would cause. It could very well be the end of their case.
However, they were not going down without a fight. Resigned now to the fact that the tape would be played for the jury, the defence set Lansing the task of trying to mitigate its content by trying to turn the spotlight back on Dr. Oziel, and convincing the twelve men and women that what they were about to hear was an elaborately-staged deception, something orchestrated by the therapist to try to make the brothers look bad, and have something to blackmail them with. The tape showed Lyle talking about putting his mother out of her misery, as if it was a mercy killing, due to her suicidal nature and the fact that she could not be expected to live, or to want to live, without her husband. The biggest shock though, surely, for the jurors, was that all through the discussion, even when pressed as to why he believed Jose had to die, Lyle never once mentioned sexual abuse of any sort. He said his father was cold and controlling, and that he was ruining their mother’s life, but nothing about any abuse.
The taped session also revealed a man markedly different to the picture both brothers, and the defence team, had painted of Jose Menendez. He was controlling and tough, yes, but there was a sense of responsibility and duty about him, Lyle believed he loved his sons and only wanted them to be the very best they could be. He even went so far as to describe one night when his father had broken down and cried. Hardly the portrait of a cold, unfeeling, dominating monster the jury had heard up to now. Then, most surprising of all, Erik, who had not really spoken for much of the tape, said he really missed his father and regretted having killed him. That did not sound like a boy who had been driven to bloody and brutal murder at the hands of a sexual predator, a kid who had finally had enough and done what he felt he needed to do to be rid of his tormentor.
Rather amazingly, and surely insultingly, Lyle made the case that Kitty had actually tacitly given permission for them to kill her; that she had wanted to commit suicide but was too weak or frightened to go through with it. But she wanted to die, and Lyle arrogantly claimed that what they had done, he and Erik, in killing their parents took “courage beyond belief.” The conversation on the tape totally contradicted their story that they rushed upstairs in a panic, loaded their guns in fear of their lives and came down shooting. In a calm, unhurried and flat voice, Lyle seemed to shrug* “She gave us permission -* kill me, kill us before you leave,” and he noted “the time was now.” To gasps around the courtroom, he likened losing his parents to losing his pet dog. As Conte left the courthouse he was heard to say that he believed the tape had “sunk” the two brothers, though then adding that he thought they had already been sunk.
The revelations on the tape were clearly a big problem for the defence, who did their best to brush them aside, but were not blind. Most tellingly, they made it quite clear that, despite what both of the boys had claimed, neither revenge for alleged sexual abuse practiced on them both, nor fear for their lives figured in the murder of their parents. They had coldly, clinically decided* Jose had to die, and that Kitty would not be able to live when he was dead, so that her murder was seen by them more in the light of a mercy killing. Perceptions had certainly been turned* on their head, and the cold, flat voice of Lyle Menendez recounting their plan to Oziel must have put the chills up some, if not all, members of the jury.
But they had what might be called the turncoat witness, Judalon Smyth, Oziel’s ex-lover, and the one who had, as she had said herself at the time “delivered the brothers to the prosecution on a silver platter.” Now claiming she had been brainwashed by her lover and had had memories and suggestions implanted, and that he had been threatening her, and in apparent anger at her case against him for rape not being taken by the D.A., Smyth was testifying for the defence, and doing her best to unravel most of the evidence she had given Bozanich and Zoeller, trying to say it was all made up on Oziel’s instructions, or at least tailored by him to his desires. Mind you, she doesn’t sound like she’s playing with a full deck: some sort of nonsense about a “Sex IOU contract” between her and Oziel, witnessed by her two cats? Right. A very reliable witness then.
Finally, after nearly three months, Abramson and her team was done. The defence rested.
It was now the prosecution’s turn.