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The Menendez Question: Can We Know What Happened Behind Closed Doors? : Trial: The prosecution is insisting the motive is greed. The defense is saying there was physical and mental abuse. And the psychologist is just talking.

July 18, 1993|Charles L. Lindner | Charles L. Lindner, an attorney in Santa Monica, is past president of the Los Angeles Criminal Courts Bar Assn.

During my first year as a district attorney's law clerk, I had a conversation with my boss, C. Robert Jameson, now an Orange County Superior Court judge. He was prosecuting a particularly gruesome murder case. The defendant, who was from a prominent family, had raised the "battered spouse" defense as justification for the killing. The tactic was widely ridiculed. In rural Yolo County, everybody knew the family, and no one had ever seen or heard of anything smacking of abuse.

Jameson's lesson was simple: You never know what goes on behind someone else's bedroom doors. Never assume that just because things look normal, they are.

That was the lesson the defense delivered last week in describing its strategy in the Menendez brothers murder trial, scheduled to begin Tuesday.

Patricide is an uncommon crime. So uncommon, in fact, that any case brings out the national press because, by definition, parent killing means there is a larger story to be exposed, layer by layer.

Lawyers for Erik and Lyle Menendez have presented the most interesting question in a murder case: Why? What was their motive? After all, the Menendez brothers were arrested based on a tip from their psychologist, or to be more precise, from their psychologist's lover, Judalon Smyth.

Murder is more than the act of killing. To prove first-degree murder, the state must show that the Menendez brothers not only killed, but acted with "premeditation" and "express malice aforethought." That means a cold and analytical turning over of the homicide in the killer's mind and weighing, in a cold and calculating way, the benefits and demerits of killing.

Proving first-degree murder, to put it simply, depends on what the killer "sees" at the time of the homicidal act. An African-American who sees a group of hooded men approaching him wearing white sheets, or a woman who sees her drunken, violent husband come through the door, may "see" far more than just a physical manifestation. They see through a prism of personal history, a history that may prevent them from being able to premeditate in the way the law requires.

Premeditation, for the purpose of proving first-degree murder, must be "rational," and a history of abuse can (with the judge's permission) be considered by the jury as reducing a defendant's ability to premeditate or harbor malice. If the jury agrees with the defense team's mental-state evidence, it can reduce the charge to second-degree murder or even manslaughter. Neither carries the death penalty, the district attorney's objective in this case.

The linchpin to the Menendez case appears to be L. Jerome Oziel, the therapist for both Lyle and Erik. It was Oziel who allegedly admitted to police that Erik told him the brothers had shot their parents.

Normally, a conversation between a psychologist and patient is privileged--the therapist is legally duty-bound not to disclose the communications he or she had with patients. It is not only the therapist's right (as well as the patient's), but his duty to remain silent. Along with the privilege for clergymen, traditionally called the "priest-penitent" privilege, the therapist-patient secrecy privilege is probably the strongest in law.

The California Supreme Court found technical reasons for allowing Oziel's partial breaking of the privilege. That means the prosecution apparently can use Oziel's statement attesting that Erik admitted the brothers killed their parents. The question remains: What else does Oziel know that he is professionally forbidden to divulge?

According to Leslie Abramson, Erik's lead counsel, both brothers suffered long-term physical, emotional and sexual abuse at the hands of their parents, principally their father. This is a defense she has used, successfully, in a previous case. But, according to Pam Bozanich, lead prosecutor, the motive was greed, a homicidal pursuit of a fast-track inheritance.

So the question of what else Oziel knows is intriguing. If Oziel testifies that Erik admitted to the killing, what in the youths' background would make them want to kill their father and mother? Lyle and Erik did not want for money.

What was it that the brothers did not have? Press reports indicate that there was no shortage of clothes or cars, money or companions. No huge gambling debts or drug habits appear to have plagued them. Did the boys talk to Oziel about hating their parents, and if so, for how long had that been going on? Did they report sexual abuse, or physical abuse, and if so, did Oziel fail to report that to the police, as he would otherwise be legally bound to do? Maybe he made a clinical evaluation not to believe them.

Or perhaps the brothers did not trust Oziel. Again, according to press reports, Oziel told his paramour about his sessions, and she tipped the police, so perhaps, instinctively, the brothers did not trust Oziel with their most intimate secrets.

The prosecution promotes its greed motive because it's simple. After all, the theory goes, if the parents did not have money, the motive could not have been greed. Therefore, if the parents did have money, the motive must have been greed.

The defense, on the other hand, has gone to Robert Towne's "Chinatown," where private eye J. J. Gittes, when asked why he left the district attorney's office, tells Mrs. Mulray that after years of working in Chinatown, he thought he understood the place like the back of his hand, but things happened, and he learned he didn't understand Chinatown at all.

Ultimately, "Chinatown" turned out not to be about greed and power, but about control, abuse and incest. It's an old L.A. story.

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