A Case for Clemency: Why the Menendez Brothers Should Be Released

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These days, the world feels crushingly bleak. There is no shortage of horror in our daily news, no shortage of abuses by those in power, no shortage of inequalities and injustices—and all these can leave you (me) crushed by the steamroller that has become a regular part of our life these days.

As I see it, there are two options. You can choose to feel utterly overwhelmed or you can try to pick out the occasional cause that maybe you can do something about, a small and focused injustice that you can try to remedy. At the moment, for me, this injustice is the one served to the Menendez brothers. Yes, those Menendez brothers.

Just to clarify, I am not a lawyer.

I am not even a law student or a paralegal.

But there are many things about the justice system that make me furious and frustrated, and even more things that I do not understand. In fact, the one time I was selected for jury duty (as an alternate) was such a miscarriage of justice that it scarred me forever.

As a rule, I do not trust that justice will be done. I trust, in fact, that justice will be at the mercy of agendas and bottom lines far more often than it is not. This is not to say that justice is elusive, merely to say that when things work as they should, it is usually by virtue of lucky accident rather than merit.

When a case has the misfortune to be high profile, when it has the kind of stakes upon which careers are made (or broken), there is even more at risk, even more ulterior motives and agendas at play, endless variables toying with fate from behind the scenes. And then, justice, which is already intensely complicated, does become elusive, subject to the mercy of all those external voices clamouring to have their say.

In 1994, Lyle and Erik Menendez were convicted of murdering their parents. The two brothers received a sentence of life in prison without the possibility of parole. This had been, however, their second trial. Their first trial—with the two boys tried separately—had resulted in two deadlocked juries. Significantly, the jurors had voted along sex lines, with the men opting for conviction. The second trial—the one which resulted in conviction–had two significant differences which clearly impacted the resulting sentences: Judge Stanley Weisberg severely limited the defense’s argument that the boys had acted following a lifetime of abuse and would not allow the jury to consider a charge of manslaughter in lieu of murder charges.

Lawyer Leslie Abramson, who represented both of the Menendez brothers, had focused the first trial on a claim of “imperfect self defense.” Unlike traditional self defense, imperfect self defense does not shield the defendant from all liability but reduces the liability primarily because the defendant actually but unreasonably believed that he or she was in imminent danger of death or great bodily injury. Imperfect self defense eliminates the element of malice, reducing the level of the offense from murder to manslaughter. 

However, in trial number two, this was not an option. Not only was Leslie Abramson unable to explore the allegations of abuse which, while not excusing the crime, could have servee to explain it–but the accompanying reduced charge was also taken off the table by Judge Weisberg. And so, both Menendez brothers were sentenced to spend the rest of their lives in prison, victims of a legal system that concealed relevant information for reasons both inexplicable and questionable.

Despite the fact that neither brother had had any prior convictions, or even a history of violence, they were sentenced to the maximum possible penalty, and, beyond this, were even forced to spend decades apart at separate prisons (only finally being reunited in April 2018 in the Richard J. Donovan Correctional Facility in San Diego). I am not a lawyer, as I said above, but this sentence horrifies me and renders me even more disgusted with the whims of the American legal system.

While neither brother denies committing the crime, to conduct a trial without providing the jury with the full story appears (to my non-legally-educated mind) to be a gross miscarriage of justice. The verdict was wrong because the jury did not have all the necessary information. They did not know, for instance, that both boys had (allegedly) been abused by their parents for their entire lives. And without that information–without the option to consider the lesser charge of manslaughter–how could they have decided properly?

Unfortunately for the Menendez brothers, they killed their parents in 1989. In the early 1990s, the definition of imperfect self-defense was quite limited, and it was seen as a justification for only the most radical of situations. Now, however-—and partly as a result of the Menendez trial—imperfect self-defense can be applied to a greater number of situations, including domestic violence. But then, in 1994, not only was it less often used, but there was also the belief—which now, in 2018, feels laughably archaic and naive—that fathers could not (or would not) abuse male children.

And so the Menendez brothers and their horrific tales were met with skepticism, a skepticism so great that the judge would forbid the possibility of abuse—and a reduced charge of manslaughter—from being considered by the jury.

However, this case cannot be considered without a conversation of the horrors of abuse. To do so is not only unfair but morally wrong and cruel. Yes, the parents are both dead and cannot explain or justify their actions. At the same time, how can one judge either brother for their crime without considering the possibility that they are telling the truth and that they did undergo years of horrific abuse at the hands of the two people charged with keeping them safe?

How can one judge either brother for their crime without considering the psychological ramifications of betrayal, especially when it comes at the hands of those who are supposed to protect?

How can one judge either brother for their crime without considering the psychological ramifications of feeling that your home—the one place in the world which should feel safer than anywhere else—is a place of constant danger and pain?

How can one judge either brother for their crime without considering the psychological ramifications of—every time that you do try to confide in someone about what is being done to you—ever increasing punishment and threats of death?

Child abuse is horrific. It points to the worst of human nature. But unfortunately ignoring it does not make it go away.

In fact, in 1994, Judge Weisberg argued specifically that the abuse could not have happened and should not be acknowledged because abuse does not happen to boys. If the Menendez brothers had been the Menendez sisters, then a conversation about abuse would have been permitted during the second trial. If the Menendez brothers had killed their parents ten years later, a conversation about abuse might also have been permitted.

Not only has progress been made since 1994, and the sad reality that boys can (and are) abused become self evident, but California has passed a new law that should help prevent this kind of miscarriage of justice from happening again—sort of.

On September 30, 2012, Governor Jerry Brown signed into law AB593, also known as the “Sin by Silence” bill. AB 593 seeks to address allows victims of domestic violence whose expert testimony was limited at their trial court proceedings to re-file for a writ of habeas corpus to allow expert testimony to weigh in on their defense.

Earlier legislation—SB 799 (passed in 2002) and SB 1385 (passed in 2005)—allowed petitioners to seek a new trial, a reduced sentence, or another equitable remedy if expert testimony on intimate partner battering and its effects had not been received into evidence during their original trial proceedings, and it is reasonable to believe that the outcome of the trial would have been different with such expert testimony. However, AB 593 applied to cases where the defendants did receive expert testimony but it was “deficient by today’s standards.” AB 593 not only allows victims of domestic violence whose expert testimony was limited to file for a writ of habeas corpus, but it also gives victims more time to receive legal representation by deleting the sunset clause in the original statute.

But are the Menendez brothers victims of domestic violence in the eyes of the law? Can this expanded legislation be used to provide them with increased expert testimony? Can SB 799 be used to justify a new appeal? Short answer: no. Longer answer: no, but the reason why is even more troubling.

Despite the various laws passed in California over the last decade taking into account the concept that people’s brains are not fully developed until age 25, or legislation such as AB 593, that allows for the fact that violence may come from complex causes which must be taken into account during sentencing, the Menendez brothers are precluded from benefiting from any of these thanks to a California ballot proposition that prevents life without parole inmates for applying for clemency or parole. So not only did they get screwed with their initial sentencing, but the cruelty of that initial sentencing prevents them from receiving any clemency in the decades to come.

As of May 2018, the Menendez brothers (as far as I know) are not getting another chance. Their last appeal—in 2005, to the Ninth Circuit of the U.S. Court of Appeals, was turned down. While Chief Justice Alex Kozinski agreed that there had clearly been one set of rules for the first trial, and then a second set of rules for the subsequent trial—the state didn’t succeed so “it changed the rules dramatically,” he says—he still upheld the convictions. And so the Menendez brothers waste away in prison, all indicators pointing to a lifetime in prison following a lifetime of abuse.

Again, no one is disputing what transpired on the night of August 20, 1989. However, what has been noticeably ignored was what happened on the nights prior to August 20, 1989. How can the murder of an abuser by the abused by judged without mentioning the (alleged) abuse? How can two men be sentenced to decades—the rest of their lives, in fact—in prison without acknowledging the trauma and impact of sexual and physical abuse? How is that trauma not, at the very least, part of the conversation to explain why they made the choices they did?

Now children are more likely (although still often sadly reluctant to do so) to know where to turn, what to say, about abuse. In 1989, two boys had no idea what to do. When they did try to tell others about their abuse, it only brought retribution upon them tenfold. These two boys had nowhere to go that felt safe, and so yes, they did a horrible thing, but they did a horrible thing because at one point in their lives, that felt like the only way out.

While it is impossible to know exactly what transpired during the first eighteen years of their lives, it is quite possible to see how unfairly the two of them have been treated in the twenty-four years since, and how cruelly Judge Weisberg manipulated the scales of justice. Haven’t they suffered enough?