The Menendez brothers still face major hurdles to freedom

For the first time in nearly three decades, Erik and Lyle Menendez have some reason to hope they might one day live as free men.

In 1989, the Menendez brothers bought a pair of shotguns with cash, walked into their Beverly Hills home and shot their parents — Jose and Kitty — while they watched a movie in the family living room.

Los Angeles County Dist. Atty. George Gascón said Thursday that his office would review what he described as new evidence that the brothers were molested, a move that could pave the way to a new trial or resentencing and possibly their release.

Their protracted legal battle captivated audiences across the nation through the mid-1990s as the brothers claimed that they were sexually abused by their parents while prosecutors argued they killed their parents for money.

Three decades later, the same debate is playing out across the country after the release of several popular shows and documentaries placed renewed focus on the case.

But legal experts say the brothers path to freedom remains an uphill battle despite the growing calls for them to leave prison.

The evidence prosecutors plan to consider includes a letter allegedly penned by Erik Menendez eight months before the murders and claims by another man that Jose Menendez sexually assaulted him in the 1980s. A judge is also set to review the case during a hearing next month.

Erik Menendez’s wife, Tammi Menendez, expressed appreciation for the public support on social media Thursday.

“We hold onto hope that this November will bring the resolution we have all been wishing for,” she wrote. “We would deeply appreciate your ongoing prayers as we await their official response. Thank you for standing by us!”

An Oct. 31, 2016, photo provided by the California Department of Corrections and Rehabilitation shows Erik Menendez, left, and a Feb. 22, 2018 photo provided by the California Department of Corrections and Rehabilitation shows Lyle Menendez.

(California Department of Corrections and Rehabilitation/Associated Press)

Laurie L. Levenson, a Loyola Law School professor of criminal law, said the evidence may be seen by the court as “too little too late” and not enough to get their convictions overturned or lead to resentencing.

“It is extremely rare, particularly in a case like this,” she said. “This is not a whodunit case. This is, ‘Gee, did I have enough of an excuse for what I did?’ And I would say that’s the rarest type of case to get relief.”

The district attorney’s review will center on whether the recently uncovered evidence undermines the prosecutors’ confidence in the prior verdict. Ultimately, prosecutors could also choose to support clemency, she said.

Gascón said during a press conference that there was no question the brothers committed the murders but said the issue was whether the jury heard evidence that their father molested them.

Mark Geragos, one of the attorneys representing the Menendezes, said the brothers “are literally the poster children for resentencing.”

Geragos said he sent the district attorney a draft memorandum proposing that option.

“I made a pretty compelling case. In my humble opinion, they are eligible for resentencing, and I think under the law, it could be recalled, and you can deem it a manslaughter, and it could be time served,” he said.

Geragos said he’s optimistic his clients will be released.

“I am hoping to have them over for Thanksgiving dinner,” he said.

Evidence detailing sexual abuse was presented during the brothers’ first trial, which ended in hung juries, but was largely withheld during their second trial, where they were convicted and sentenced to life in prison.

“Judge [Stanley] Weisberg allowed some evidence of abuse in the first trial, but not in the second because I think from his perspective even if the defendants had been abused, it was not going to be enough to be a defense,” Levenson said.

Matt Murphy, a former prosecutor who tried sex crimes and capital murder cases, said even if the brothers claims of sexual abuse were true, it doesn’t negate that they carefully planned and carried out their parents’ murders and went on a spending spree in the months that followed.

They were not being abused in the moment when the murders took place, he said.

“You can be motivated largely by something else, but if even part of your motive in shotgunning your mother to death is financial gain, that’s first degree murder with a special circumstance for financial gain,” he said.

Gascón’s announcement comes more than a year after Erik and Lyle Menendez filed a writ of habeas corpus asking the court to vacate their 1996 conviction, citing new evidence.

The petition pointed to evidence from a Peacock docuseries, “Menendez + Menudo: Boys Betrayed,” which raised allegations that Jose Menendez sexually assaulted a former underage member of the 1980s pop band Menudo.

The petition also details a recently discovered letter that defense attorneys say was written by Erik Menendez eight months before the 1989 shooting that suggests sexual abuse by his father continued into his late teenage years.

“I never know when its going to happen and its … driving me crazy,” the letter, submitted in court filings, reads. “Every night I stay up thinking he might come in.”

Murphy said he’s skeptical of the reliability of the letter given that it was found decades after the fact and by family members who have publicly supported the brothers.

“Once you get past the Netflix specials and the public fascination with this case, in pure legal analysis, I don’t think the context of this letter changes the outcome either in front of the jury or the sentencing,” he said. “I would be very surprised if the court gave this the weight to which people who watch Netflix think it deserves.”

The renewed interest in the case has prompted an outpouring of support for the incarcerated brothers and discussions about the likelihood of their release.

In an interview with Variety, Ryan Murphy, the co-creator of the hit Netflix series “Monsters: The Lyle and Erik Menendez Story,” speculated that the brothers could be out of prison by Christmas.

“We gave them their moment in the court of public opinion. Basically, we did give them a platform,” Murphy said.

Hundreds of messages of support for the brothers flooded Gascón’s Instagram live feed while he gave an update on the case this week.

Reality star Kim Kardashian wrote in a personal essay for NBC News that she hopes the brothers, who have served 34 years in prison, could have their life sentences “reconsidered.” She noted that at the time they were convicted, there were “limited resources for victims of sexual abuse, particularly for boys.”

“There were virtually no systems in place to support survivors, and public awareness of the trauma of male sexual abuse was minimal, often clouded by preconceived judgments and homophobia,” she wrote.

While a jury may view abuse allegations in a different light now compared to the 1990s, Levenson was skeptical that it would make a difference in the case.

“There are a lot of things that juries today might see differently in defendants’ conduct and you wouldn’t anticipate the court reopening all those cases,” she said. “The mere fact that a jury today might reach a different verdict than the jury then will not meet the legal standards for getting the petition granted.”