Sons and Murderers

By GEORGE J. CHURCH

When you put the shotgun up against her left cheek and pulled the trigger, did you love your mother?

Yes.

That question-and-answer sequence is remarkable, partly because it is not especially bizarre or lurid. At least not by the standards of the Southern California trial it comes from. Other testimony last week moved some jurors to tears, as Lyle Menendez described how, when he was seven years old, he had been forced to perform oral sex on his father and later had been sodomized with a toothbrush. Lyle, now 24, and his brother Erik, 21, are seeking to explain why they burst into the television room of the family's $5 million Beverly Hills mansion on the night of Aug. 20, 1989, and killed their parents, Jose and Kitty Menendez, with 15 shotgun blasts, including two "contact" shots -- from guns pressed against the back of Jose's head and Kitty's cheek.

The trial is testing the limits of the so-called battered-child-syndrome defense. (A variant, the battered-wife defense, is sometimes used by women who kill abusive husbands.) The Menendez brothers contend that they killed their parents not to avenge years of sexual and emotional torture -- that would be no legal justification -- but in self-defense. Even though Jose and Kitty were sitting placidly watching television? Yes. The law sometimes recognizes self- defense pleas from people who are not under attack but who reasonably fear imminent death unless they get their potential assailants first. The battered- child-syndrome defense holds that a child can be so terrorized by years of sexual, physical and emotional abuse that he or she genuinely reads menace -- accurately or not -- into a look, a gesture, an ambiguous word that an outsider might not consider a dire threat.

The Menendez case originally looked much simpler. When Jose, 45, a Cuban refugee who had become the wealthy chief of a music- and video-distribution business, and Kitty, 44, a onetime beauty queen, were gunned down, the first suspicion was of a Mafia hit. But the mangled condition of the bodies argued for a motive of hatred rather than business. Though they pretended to discover the bodies, Lyle, then 21, and Erik, 18, did not put on a very convincing show of grief; they went on a $700,000 spending spree with the insurance money. In March 1990, Judalon Smyth told police that after being asked to sit outside the office of her then lover, psychologist Jerome Oziel, she had overheard the brothers admit the killings to Oziel. Police seized Oziel's tapes and arrested Lyle and Erik on suspicion of having murdered their parents to hasten their enjoyment of a $14 million inheritance.

The brothers languished in Los Angeles County jail for three years, while the California courts argued over the admissibility of the tapes as evidence. In July a final ruling enabled the prosecution to use the tapes and cleared the way for a trial. Only then did the Menendezes admit to the killings and begin spinning their story of abuse and terror: Lyle first, for nine days ending last Friday; Erik testifies this week. At the request of defense lawyer Leslie Abramson, who did not want to parade the same witnesses to tell the same stories in two successive trials, the brothers are being tried simultaneously before two separate juries. The juries listen to the same evidence, except when testimony concerns only one brother. Then, the jury that will decide the fate of the other leaves the courtroom.

Lyle has been painting a picture of Jose and Kitty as monsters who ran their sons' lives in the tiniest detail, crushing any aspirations to independence by handing out cruel punishments for trivial offenses. Much worse, he testified, when he was seven, Jose "would be in the bathroom, and he'd put me on my knees. He'd guide me in all my movements, and I'd have oral sex with him." Also, "he used objects, a toothbrush, some sort of utensil brush . . . he'd take my pants off, lay me on the bed. He'd have a tube of Vaseline, and he'd just play with me." Worse yet, "he raped me." Lyle testified that he took out some of his rage by violating Erik with a toothbrush. On the stand, he sobbingly apologized to Erik -- a display the prosecution tried to paint as a bathetic phony.

By Lyle's own testimony, his father's sexual abuse stopped when he was eight -- 13 years before the killings. Kitty, though, or so Lyle said, continued to bathe him "everywhere" and invite him into her bed and instruct him to touch her "everywhere" until he was 13. From then on, he said, he avoided her bed, but "we had arguments over that for a long time -- my whole life, really." On Tuesday, Aug. 15, during one loud argument, Kitty ripped off Lyle's toupee in front of Erik, who allegedly had not known his older brother was bald.

And that, if Lyle is to be believed, started the fatal sequence. Moved by his brother's pain and embarrassment over the toupee incident, Erik impulsively confessed to Lyle that Jose was continuing his sexual abuse of the younger brother. Two days later, said Lyle, he confronted Jose and told his father to leave Erik alone, which started three days of escalating arguments. Jose, according to Lyle, told him, "What I do with my son is my own business. Don't throw your life away. Stay out of it." Lyle interpreted that and some later remarks by his father, he said, as threats to kill his sons to prevent an exposure that would ruin his hoped-for political career (Jose nursed an ambition to become the first Cuban-born U.S. Senator).

By Sunday morning, after another alleged attempt by Jose to enter Erik's room, the brothers concluded that Erik had to get out of the house. Lyle, making conversation, asked his father for the phone number of a tennis camp he planned to attend. Jose replied, "What does it matter anymore?" Lyle said he took that "to be my dad's sarcastic way of saying, 'You're dead!' " The boys told Kitty they were going out to meet some friends; she ordered them to stay in the house. Jose told Erik to go upstairs and wait for him. Lyle screamed, "No, you're not going to touch Erik!" Jose summoned Kitty to the TV room and closed the doors. Said Lyle: "I thought this was the end. I thought they were going inside the TV room to plan to kill us." He ran upstairs to get Erik. Both brothers got their guns, and blam! And blam! again and 13 more times.

Is this story believable? Prosecutor Pamela Bozanich accuses Lyle of tear- jerking hamminess. "The level of ((Lyle's)) acting," she once remarked, "has fallen from Laurence Olivier to Sylvester Stallone." But she has been unable to shake his story much despite a pounding cross-examination. At one point, she asked why the brothers had not told the police of their fears that they would be killed. Lyle said, "We discussed: Would the police side with us, believe us?" Their conclusion: no, but "filing charges would definitely have put us in a position to be killed" by a still more outraged father.

There are problematic points in Lyle's story, though. He testified that the brothers were convinced Jose and Kitty would kill them on a shark-fishing trip the day before the final explosion. They went anyway, and nothing happened, but, said Lyle, the two boys came back convinced more than ever that they were in mortal danger. More important, while Lyle painted a menacing portrait of his father, he was less successful explaining why the brothers thought Kitty would have joined her husband in killing her sons. Some outside legal experts think the prosecution may successfully contend that the brothers killed Kitty primarily to eliminate any possibility of her identifying them as Jose's slayers -- allowing them to collect the $14 million inheritance.

Much may depend on Erik's story this week and succeeding testimony by defense experts who will testify on the psychological effect of long-continued sexual and emotional abuse. But the atmosphere of the trial has changed sharply. At first, the common belief was that Lyle and Erik would be convicted of first-degree murder and sentenced either to death or to life without parole. But hardly anyone seems to expect that now; Lyle has been too effective in painting them as victims. Even prosecutor Bozanich has told reporters, "I think the disturbed family is part of the motivation. I don't think this was a crime solely for financial gain."

On the other hand, Lyle has not exactly shown the brothers to be lovable enough to deserve outright acquittal. Witness part of his testimony about killing Kitty: "I could see somebody moving where my mother should be. So I reloaded. I ran around and shot my mom. I shot her close." The betting now is that the two will be convicted of a lesser charge of voluntary manslaughter or second-degree murder, with acquittal an outside chance. But nobody ever knows what a jury, let alone two juries, will do when the door closes.