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Use of Tape Allowed in Menendez Trial : Courts: State justices rule that the prosecution may enter a psychologist's recorded notes into evidence against two brothers accused of killing their parents.

August 28, 1992|PHILIP HAGER | TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — The state Supreme Court ruled Thursday that prosecutors may use as evidence a psychologist's tape-recorded notes of two sessions with Erik and Lyle Menendez in which the brothers allegedly admitted murdering their wealthy parents in Beverly Hills in 1989.

The court unanimously concluded that the tape was not barred by the therapist-patient privilege of confidentiality because the psychologist reasonably believed the brothers were threatening him and others during those sessions.

While state statutes generally protect such communications from being revealed, an exception permits disclosure when patients are found to be dangerous and warnings to others are necessary to prevent harm, the court noted.

The justices added, however, that the privilege prevents use of the therapist's recorded notes of a third session and another recording of an actual session with the Menendez brothers. In those sessions, the court said, there was insufficient evidence of threats warranting disclosure.

While permitting use of potentially key evidence against the brothers, the court declined to issue broad new limitations on the therapist-patient privilege.

In an opinion signed by Justice Stanley Mosk, the court refused to hold that the privilege must yield to the state's interest in successful criminal prosecutions. The court also said that even after disclosure of a threat has been made, the privilege still may bar revelation of later communications between therapist and patient.

Los Angeles County Deputy Dist. Atty. Brent Riggs welcomed the court's refusal to bar use of taped accounts of two of the sessions. But authorities still may ask for a rehearing to seek the use of the other recordings, he said.

"There is substantial other evidence (against the brothers), but the tapes will still be important," Riggs said. "It appears the (additional) tapes will be of help, too, if we can get access to them."

Leslie H. Abramson of Los Angeles, an attorney for Erik Menendez, said she was heartened by the court's limits on use of some tapes--and minimized the significance of the recordings the justices held could be used.

"We've never believed the tapes would be fatal to our defense," she said. "We fought hard against their admission because the principle (of confidentiality) was so important."

Lyle Menendez, 24, and Erik Menendez, 21, face the death penalty in the shotgun slayings of Jose and Kitty Menendez on Aug. 20, 1989, at the couple's Beverly Hills mansion. Authorities said they believed the young men, now being held in jail, were seeking a $14-million inheritance.

At issue before the justices were taped notations by clinical psychologist Leon Jerome Oziel of therapy sessions with the brothers in the fall of 1989; his description of a session with Erik; and a recording of an actual session with both brothers.

Beverly Hills police obtained a search warrant and acquired the tapes from Oziel. The psychologist opposed disclosure of the tapes in court and the tapes were ordered sealed pending a decision on the issue.

After a series of proceedings, a state Court of Appeal in Los Angeles held that disclosure of all the tapes was justified by threats made by the brothers against Oziel, his wife and a friend, the appeal panel said.

The appellate court also quoted from contents of the tapes themselves, revealing Oziel's description of the threats and alleged admissions the brothers made about the slayings.

Among other things, the court said that Erik confessed to Oziel that he and his brother had murdered their parents, revealing in detail the plans for the killing and a fabricated alibi. Lyle indicated he was "considering killing me," the court quoted Oziel as saying. Later the therapist said he was threatened again and he warned his wife and the friend, who alerted police.

The appeal court quoted the psychologist as concluding that the brothers "didn't kill their parents for money but rather out of hatred and out of a desire to be free from their father's domination, messages of inadequacy and impossible standards."

In other action Thursday, the justices let stand an appeal court ruling that insurers do not violate state civil rights laws by refusing to offer a homosexual couple living together the same insurance policy they offer married couples.

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