After more than 30 years behind bars for murdering their parents and two recent Netflix series that have galvanized attention about their notorious crimes, Lyle and Erik Menendez could soon walk free—and their future is riding on progressive Los Angeles District Attorney George Gascón.
Under pressure in a reelection race where he’s trailing by 30 points in the polls, the prosecutor is set to deliver his re-sentencing recommendation in the case by Friday and thus determine the brothers’ fate.
“I plan to have a decision by the end of this week,” he told CNN’s Jake Tapper on Tuesday, “which is what I promised when we started getting a lot of inquiries. We had been looking at this case for over a year, by the way. We had a court time late November …but given the public attention to this case, I’ve tried to come up with a decision earlier than that and I will.”
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Gascón says his own office falls into two camps: one that is “adamant that they should spend the rest of their life in prison” and a second that “believe, actually, that they probably were molested and that they deserve to have some relief.”
Those divided camps reflect the sordid history of the bloody shotgun murders in Beverly Hills.
Lyle and Erik’s first separate trials ended in deadlock with jurors split over whether the young men, then 18 and 21, killed their parents Jose and Kitty out of greed or in self defense after years of sexual and emotional abuse.
In their second trial, most of the abuse evidence was excluded and prosecutors accused the boys of killing their parents for their $14 million inheritance and lying about the molestation. In 1996, a jury found them guilty of murder and conspiracy and they were sentenced to life in prison without the possibility of parole.
Now, with a cast of celebrities like Kim Kardashian pleading for mercy, there are two possible paths that could see Erik, 53, and Lyle, 56, receive some sentencing relief or even walk free.
Path One: Resentencing
As early as this week, Gascón could recommend resentencing, a process that weighs new evidence, extenuating circumstances like trauma and abuse and the brothers’ behavior and rehabilitation in prison.
Since their conviction, the brothers have been model inmates, according to their lawyers and prison authorities, earning praise for their behavior, even though they had no expectation of release.
Gascón’s office has already resentenced more than 300 people with four reoffending.
If Gascón determines that a reduced sentence for the Menendez brothers is “in the interest of justice,” veteran Los Angeles Superior Court Judge William C. Ryan will have 30 days to consider the matter. Within that time frame, Ryan could theoretically release the brothers, resentence them, or set another hearing to consider the request. Or he could reject the request entirely. Ryan has served on the bench since 1994.
If Gascón recommends that the brothers be resentenced to life in prison with the possibility of parole, and if Judge Ryan concurs, then a parole board would meet to consider arguments about whether they should be released.
More than 24 Menendez family members have supported the release of the brothers.
However Kitty Menendez’s 90-year-old brother, Milton Andersen, opposes their release.
Path 2: Habeas Corpus Petition and New Evidence
The second route to freedom is harder and centers on a so-called habeas corpus petition filed last year, leveraging supposedly new evidence. This requires evidence to be presented that would probably have changed the outcome of the trial.
In their petition to the court in May of last year, the brothers’ lawyers argued that a letter from Erik Menendez to his cousin, written eight months before the murders, described sexual abuse he endured at the hands of their father.
Additionally, a former Menudo boy-band member, Roy Rossello, has made a sworn statement that he was also sexually abused by José, adding weight to the brothers’ longstanding claims of parental abuse.
If Gascón supports this petition, Judge Ryan could vacate their sentences or order a new trial.
Next Court Date and Potential Release
If Gascón moves forward with resentencing, the brothers will appear before Judge Ryan for a hearing on November 26th.
Even if he is defeated on Nov. 5, Gascón will remain in office until Dec. 2.
That leaves enough time for his resentencing decision to be considered by Judge Ryan on Nov. 26.
But if the timeline extends beyond Dec.2, the matter could fall into the hands of Gascón’s potential successor, Nathan Hochman, a Republican criminal defense lawyer running as an Independent who hasn’t taken a position in the case and has accused Gascón of trying to exploit the situation for political advantage.
“The timing is incredibly suspicious,” Hochman said in a debate against Gascón. “You certainly would not have me hold a press conference to tell you I’m just thinking about (resentencing).”
After taking office Dec. 2, Hochman could try to reverse any request that Gascón makes in the case if the judge hasn’t already made a decision.
