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High-Tech Prosecution : Trial: Firm known for its sophisticated disaster analyses will reconstruct Menendez slayings in an attempt to show premeditation. But defense attorneys say Failure Analysis is not qualified to make that case.


For more than two decades, Failure Analysis Associates has made a name for itself by staking out the intersection where the laws of physics collide with Murphy's Law, studying what makes cars crash, buildings burn, ships sink and machinery go on the blink.

The company's engineers have pored over the remnants of disasters large and small, using computer know-how to re-create everything from Ann-Margret's tumble from a Las Vegas stage to the Kennedy assassination to the slayings of Nicole Brown Simpson and Ronald Lyle Goldman.

This week at the retrial of the Menendez brothers, an executive from the Silicon Valley firm will offer a courtroom reconstruction of the crime scene at the family's Beverly Hills mansion six years ago. Using police photographs and state-of-the-art computer imaging techniques, CEO Roger Lee McCarthy will bring the jury into the mansion's den, laying out a chilling scenario for the final moments of the lives of Jose and Kitty Menendez.

Prosecutors, who have bypassed the Los Angeles County coroner's office to make Failure Analysis the cornerstone of their case, are seeking to graphically demonstrate that the couple were murdered with premeditation.

It is a point that Deputy Dist. Attys. David P. Conn and Carol J. Najera believe was lost during the first Menendez trial, which ended early last year with juries split between murder and manslaughter convictions for Erik and Lyle Menendez.

The brothers contend that they killed their parents in self-defense after years of abuse and a mounting fear that the parents planned to kill them.

By contrast, Failure Analysis' digitized study of more than 800 crime scene and autopsy photos concludes that the sons killed their parents execution-style, then shot them in the legs to give the killings organized crime overtones.

Defense attorneys say Failure Analysis is not qualified to make that case because its engineers have no expertise in criminalistics and forensic medicine.

"It's the mechanical engineer against the entire medical profession," attorney Leslie Abramson recently said. She has called McCarthy "the Mark Fuhrman" of the Menendez case, the prosecution witness who "will bring [prosecutors] down."

The rhetoric and daily legal skirmishing over Failure Analysis shows, perhaps more than anything else, how important lawyers on both sides consider the reconstruction testimony.

"They have the abuse excuse and we have Failure Analysis," Conn said in an interview. "I think we're on very solid ground."

The Menendez case marks CEO McCarthy's debut as an expert witness in a criminal trial. Although he reportedly can command up to $450 an hour, he is working for free as a favor to the prosecution's jury consultant.

McCarthy could take the witness stand as early as Tuesday as the final witness before the prosecution rests its case. Conn hopes the impressive computer diagrams and slide show of gory photos will give his case a dramatic flourish, keeping jurors focused on the parents as victims while the defense launches its case, which is replete with allegations of cruelty, child abuse and incest.

The district attorney's office has taken the unusual step of bypassing the coroner's office because it does not support Failure Analysis' more conclusive version of the sequence in which the shots were fired. Conn says he won't be calling a single coroner's witness.

"I don't think that happens a lot," he acknowledged.

Politely and politically skirting controversy, Conn, who heads the district attorney's major crimes unit, said his decision was not based on any quarrel with the coroner. The problem, he said, was that Deputy Coroner Irwin L. Golden, who performed the Menendez autopsies, made two unsolicited revisions of his findings. (The first revision came in 1992; the second as the jury was being chosen for the retrial, Conn said.)

Those changes would have made Golden vulnerable to scathing cross-examination, Conn said, adding: "We had no choice but to go outside."

Golden became a controversial figure last year during his disjointed testimony in the O.J. Simpson preliminary hearing; prosecutors in that case did not call him as a witness during the trial.

Among the exhibits prosecutors hope to introduce are two wooden models pierced by metal rods to show Failure Analysis' conclusions about the direction and angle of the dozen shots fired into the bodies of Jose and Kitty Menendez. This, prosecutors say, will underscore the methodical nature of the killing.

The defense, meanwhile, has embraced Golden because his testimony would contradict the prosecution's murder scenario. Abramson said in court Friday that Golden will be the first defense witness for Erik Menendez.

The coroner and Failure Analysis' McCarthy disagree not only about the sequence of the shots, but about the number of them, the position of the bodies and which wounds were inflicted before and after death.

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