Menendez Case Blends Sex Abuse Reckoning, Prosecutor Review

A new review of the Menendez brothers’ murder case by prosecutors whose predecessors once argued for their life sentences illustrates the degree to which changing social attitudes are influencing the work of district attorneys’ offices.

The L.A. District Attorney’s announcement that the office is looking into new evidence of sexual abuse by the father of the Menendez brothers accompanies a trend toward re-evaluating old sentences that don’t square with current standards. Last week, New York prosecutors moved to vacate “Sing Sing” actor Jon-Adrian “JJ” Velazquez’s murder conviction, citing new DNA evidence.

It also appears against a backdrop of high-profile criminal reckonings with sexual abuse allegations and new consideration of the role of parents in children’s violent actions.

The brothers’ resentencing bid, which is separate from their habeas petition, will need to meet a handful of criteria to be successful, said Oakland-based attorney Hanni Fakhoury. That criteria is more specific than a contemporary understanding of sexual abuse dynamics.

For one, a judge will look for a showing that sentence lengths are shorter now, on average, for the same underlying convictions. Also, the client should have served a significant amount of their sentence. Third, the lawyer should present evidence that the client took steps to rehabilitate while incarcerated, like getting a GED.

“There’s not a hard and fast rule,” said Fakhoury, who practiced as a public defender before moving into private practice with Moeel Lah Fakhoury LLP. “It varies from person to person. You sort of know it when you see it.”

The risk is that advocating for re-evaluation too often risks burning credibility with a judge, Fakhoury said.

“You’re asking a judge to reevaluate or second-guess a decision that another judge made at a different point in time. Judges are maybe reluctant to do that,” he said.

New Legal Attitudes

Proof of a growing national momentum to re-evaluate certain cases can be found in the First Step Act, signed by President Donald Trump in 2018, which was meant to shorten excessive federal sentences and improve prison conditions.

The push is also evident in the rise of prosecutor-led conviction integrity and resentencing units, USC Gould School of Law Professor Aya Gruber said.

It’s “very different from the 90s, which were all about finality,” Gruber said. Offices that now hold units to review cases once pushed back on innocence projects, which have found evidence that both exonerates people and casts light on prosecutorial misconduct.

But even those efforts aren’t necessarily met with judges eager to reconsider past sentences or convictions. A recent effort by a district attorney in Tennessee to free a man convicted of killing his child, arguing that evidence of shaken baby syndrome didn’t stand up to scrutiny, was thrown out by a judge, ProPublica reported in July.

Still, the Me Too movement and the wave of high-profile sexual abuse allegations that followed have chipped away stereotypes that pervaded when the Menendez brothers were tried more than 30 years ago.

Gruber considers the Menendez case to be the “inverse” of the prosecution of music mogul Sean “Diddy” Combs on sex-trafficking charges.

A lawsuit from singer Cassie Ventura, filed under a New York law that extended the statute of limitations for adult sexual abuse survivors, is regarded to be the spark for the criminal investigation under Combs.

“I think people have a more nuanced take now on what it means to be a victim of that kind of abuse,” said Fakhoury, the defense lawyer. “People are more willing to speak out on it, and the courts are trying to do something more about it.”

L.A. DA George Gascón nodded to that dynamic when he announced the update to the case last week, noting that “both men and women can be the victims of sexual assault.”

He also said in the Oct. 3 news conference that following Netflix shows about the case, the office has been fielding “a lot of calls.”

“It makes sense that a prosecutor is looking at it and going, ‘Ok, well everybody’s seeing this, and the right thing to do is take this up,’” Gruber said, adding, “High profile things do matter to prosecutors, especially to public facing prosecutors.”

New Evidence

Gascón, who’s up for re-election next month, said that his office has a “moral and ethical obligation” to consider the brothers’ habeas petition and resentencing request after new evidence emerged.

The question his office weighs isn’t whether the brothers, Erik and Lyle Menendez, shot and killed their parents, Jose and Mary Louise Menendez, in their Beverly Hills home. It’s whether the new information warrants a change in their prison sentences or even a new trial.

One update is a letter Erik Menendez sent in the months before the shooting discussing his father’s sexual abuse.

Roy Rosselló, who was a member of the Menudo band, also submitted a sworn declaration that Jose Menendez sexually assaulted him when Menendez was an agency executive and Rosselló was 13.

The brothers had two trials, one beginning in 1993 and the other in 1995. The first incorporated evidence that the brothers were sexually abused and resulted in a hung jury. The second excluded much of that evidence, resulting in a murder conviction after a long jury deliberation.

The two case’s divergent closing arguments show the impact of the abuse evidence, the brothers’ counsel wrote in 2023 court filings.

Prosecutors “hedged their bets” in the first trial, telling jurors that if they believed the brothers were sexually abused, “that does not mean the defendants are not guilty of murder, because they are two separate things.”

In the second, they told jurors flatly that the brothers were lying about sexual abuse.

The new letter “directly undercuts the state’s claim that there was no sexual abuse,” and the testimony of Rosselló “just as directly undercuts the state’s claim that Jose Menendez was neither a violent nor brutal man and was not the ‘kind of man’ who would sexually abuse a child,” the brothers’ lawyers, Mark Geragos and Cliff Gardner, wrote.

The case is People v. Menendez, Cal. Super. Ct., Nos. BA068880-01 and BA068880-02.