That Killer Smile

By MARGARET CARLSON

LYLE MENENDEZ, WHOSE RICH KID'S TAN has long since faded from his face, broke his pose as the grieving son to peel a thin smile from his limited supply. It was his response to the judge's announcement of the second deadlocked jury in the case of the two brothers on trial for murdering their parents. Menendez's attorney Jill Lansing later boasted about how she had introduced doubt into a case the prosecution had once hailed as open-and-shut murder in the first degree: "I don't think anybody at the beginning believed the possibility that they were abused or motivated by fear. Obviously, a great number of people believed that was the situation at the end." She added: "I think there are a lot of abuse victims . . . empowered by this case. They could see themselves as victims as opposed to being responsible for their situation."

Victimology has turned out to be the winning tactic of our era. In the Menendez case, the law has been so stretched that an "unreasonable" belief that one is in danger of serious harm -- one no sane person would harbor -- can be sufficient grounds for self-defense. How did we go from a society that brooked no excuses to one that embraces every explanation; from a society that distinguished right from wrong to one that understands all and punishes nothing? In less understanding times, two boys who chose the maid's night off to pump 16 rounds of fire into their parents as they ate ice cream and strawberries in the family room in front of the TV and are on tape admitting they did so would be serving life sentences by now. But under California law, you can tie up a court for six months, eat up the resources of the criminal justice system and use your murdered parents' $14 million estate to pay for a top-of-the-line legal representation if you unreasonably believe your parents were going to kill you for fear that you were about to expose their abuse.

The age of the culprit as victim began with the Twinkie defense, which freed the killer of San Francisco Mayor George Moscone and Supervisor Harvey Milk; too much sugar made him do it. More recently Damian Williams, videotaped beating trucker Reginald Denny during the Los Angeles riots, was found not guilty because he got caught up in the moment. Lorena Bobbitt convinced a Virginia jury that being physically and sexually abused by her husband, forced to have sex when she didn't want to and failing to "have orgasm," drove her to cut off his penis. She only has to see a psychiatrist.

But victim chic has found its finest expression in Lyle and Erik Menendez. The brothers admitted what they had done only when the existence of a tape their psychologist had secretly made became known. On it they said they had killed their parents because it was what was best for their mother, who had been cheated on by her husband. So what could the jury have made of the fact that they reloaded to shoot her point-blank in the face when she refused to quit crawling away?

For months, of course, the boys' strategy was lying, from the frantic, tearful call to 911 saying, "Somebody killed my parents," to the loving eulogy at the memorial service, to the hiring of a bodyguard in case they were next on the Mafia hit list. Then they came up with the theory of self-defense- cum-child-abuse.

But the more important technique employed was that of the modern talk show. Erik's lawyer Leslie Abramson held her jury riveted. She mastered the art of tough love so well that in her postmortem disgust with Jose and Kitty -- who were tried and convicted of the most heinous crimes without being able to confront their accusers -- the jurors wanted to go wherever she did. She was the law as grand Oprah. By dragging the case out for six months, the defense was able to give the jury time to work through their problems with what the boys had done. In this 12-step program, the jurors were led through a recovery process whereby they could see that the sons could only begin their healing process once they got their parents out of the way.

Each day the defense team came into the small, windowless courtroom as if it were a foster home and they were surrogate parents, making sure these orphans were seated comfortably, picking lint off a shoulder, huddling close during recess. The brothers eschewed the suits worn by most defendants seeking respectability in favor of the open-necked Oxford shirts and crew-neck sweaters of all-American college boys, not two grown men who could have left home if life was so intolerable.

In the jargon of the trial, the parents were guilty of enabling their sons to be bad boys without consequences. Plush Beverly Hills High, which the boys attended, comes complete with an indoor parking garage for BMWs and Mercedes- Benz. When Lyle's father presented him with an Alfa Romeo -- a gift for learning to drive -- the boy called it a "piece of shit" because he wanted a Porsche. Within days of killing the old man, he bought one for $70,000. The jury looked shocked only twice: when Lyle's cool voice came out of a boombox telling the therapist he would miss his dog as much as his parents, and when Erik said he felt love for his mother when he placed the shotgun in her cheek and blasted away her eye and nose. The brothers went from parents who understood too much to a jury that did.

At a time when the public is clamoring for a get-tough policy on crime, juries are being led to empathize. During the trial, Lyle, who wears the most authentic toupee money can buy, put on a mask of pain. Last week he smiled.