Tape Could Undermine Key Menendez Claims : Courts: Brothers never mention self-defense or sexual abuse. They talk of putting mother ‘out of her misery.’

In a tape-recorded therapy session months after they shotgunned their parents to death, Lyle and Erik Menendez said that they killed their mother to put her “out of her misery” and that their father deserved to die because his infidelity had driven her to despair.

During just over an hour with their Beverly Hills psychologist, the brothers never mentioned sexual abuse or self-defense--now the cornerstones of their defense against murder charges.

On the tape, Erik Menendez sobs. But Lyle Menendez speaks coolly of the slayings as a carefully calculated “meeting of the minds”--and as an accomplishment of sorts.

“What Erik and I did took courage beyond belief. Beyond, beyond strength,” he told therapist L. Jerome Oziel.

The tape of the Dec. 11, 1989, counseling session--perhaps the most explosive evidence presented in the brothers’ 17-week trial--was played for the first time Friday in Van Nuys Superior Court. The defense fought for four years to keep it secret, but Judge Stanley M. Weisberg ruled last week that prosecutors could play it for jurors.

In a preemptive strike, however, defense attorneys rushed to play it first, saying they did not want it to appear that they were hiding damaging evidence.

The defense also asserted that some aspects of the tape could help their case: how Erik Menendez can be heard whimpering and weeping, or the fact that the brothers deny that money was a factor in the killings.

But the 61-minute recording--played over a boom-box stereo atop the witness stand--also features the Menendez brothers’ voices contradicting much of what they said during their four weeks of testimony.

Although they told jurors that they killed their parents in self-defense Aug. 20, 1989, fearing that their own lives were in imminent danger, on tape, the brothers tell Oziel that they had decided “beforehand” to kill their parents, Jose and Kitty Menendez. “Eventually it had to happen,” Erik Menendez said.

And while they complain on the tape about their dictatorial father, they never allege that he sexually molested them. His main transgression, as they described it, was being a terrible husband to their mother.

Their father had been unfaithful for years, the brothers told Oziel, causing Kitty Menendez to seek refuge in liquor and pills. She finally became suicidal, Lyle Menendez said.

By killing her, he said, the brothers “were doing her and us a favor . . . putting her out of her misery, really.”

But it would be ridiculous to kill only their mother, Lyle Menendez said, and leave their father alive. “He was putting my mother through torture,” Erik Menendez said.

So, Lyle Menendez said, “we thought that we would just kill Dad, and eliminate the problem.”

In the wake of the killings, the brothers did have some regrets. “You miss just having these people around,” Lyle Menendez said of his mother and father.

Then, in a comment that set off gasps in the courtroom, Lyle Menendez added: “I miss not having my dog around. If I can make such a gross analogy.”

Erik Menendez, 22, and Lyle Menendez, 25, shotgunned their parents in the TV room of the family’s Beverly Hills mansion, hitting their father, a wealthy entertainment executive, six times, and hitting Kitty Menendez 10 times.

The brothers are charged with first-degree murder. If convicted, they could be sentenced to death.

Prosecutors contend that they killed out of hatred and greed for the family’s millions. The brothers have testified that they lashed out in fear after years of physical, emotional and sexual abuse.

Oziel, a key prosecution witness, was allowed to testify early in the trial about the first two counseling sessions he had with the brothers after the slayings, on Oct. 31 and Nov. 2. 1989. Although the brothers were free then--police first believed the slayings were tied to Jose Menendez’s business dealings--they confided to Oziel that they were responsible.

The brothers kept seeing the psychologist, but none of the sessions were recorded until Dec. 11. That one was taped, at a time the brothers had different lawyers as a precaution in the event they were arrested and convicted of first-degree murder, their current attorneys have said.

The original idea was that the tape might be played at the penalty phase of their trial to gain sympathy and avoid the death penalty. But after a new legal team came on board, the defense of abuse surfaced--and the new lawyers fought to keep the tape out of court.

At the start of the trial, however, prosecutors asked Weisberg to order that the tape be released. He agreed 10 days ago, saying that the brothers had made their mental state a central issue in the case.

Largely because Erik Menendez was being treated for a kidney problem, there had been no testimony since then. But when court resumed Friday morning, the defense recalled one of its experts, Jon R. Conte, who testified--before Lyle Menendez’s jury only--that he had listened to and discounted the tape in evaluating the motives for the slayings.

“The essential idea that Mom was killed out of mercy I consider to be psychologically naive and not consistent with anything else that was said,” Conte, a professor of social work at the University of Washington, told jurors.

Conte said he still believes that there was sexual abuse in the Menendez family and that the brothers killed in self-defense, despite their failure to make any such claims on the tape. “Many victims of child abuse are in therapy for years and years and never reveal (their abuse),” he said.

Conte also pointed out that “nothing on this tape is about doing it for the money.

In fact, when Oziel mentions that their father had been “talking about disinheriting you,” Lyle Menendez retorts, “That didn’t enter into it too much.”

The tape, however, is likely to provide far more ammunition for the prosecution.

* In court, the brothers testified that Jose Menendez sexually molested each of them, Lyle Menendez for two years, Erik Menendez for 12. On tape, Lyle Menendez says of his father: “Killing him had nothing to do with us.”

* In court, each brother said Jose Menendez was cold and uncaring. On tape, Lyle Menendez says his father cried after learning that the sons had been implicated in two burglaries in Calabasas in 1988.

* In court, the brothers cited a deep-sea fishing trip the day before the slayings as being a fearful occasion, saying they suspected that their parents were planning to kill them. On the tape, Lyle Menendez speaks affectionately of the family outing, saying “I miss all the things. . . . I miss not having my father.”

* In court, Oziel testified that the brothers called their mother’s slaying a mercy killing. Each brother later took the stand and fervently denied that--but the tape supports the psychologist’s testimony. Indeed, even though he fired the point-blank shotgun blast that finished off his mother, Lyle Menendez told Oziel: “I still think Mom’s was a suicide.”

The therapy session was conducted at Oziel’s office. Lyle Menendez does most of the talking in a calm, assertive tone, often while his younger brother cries in the background.

The brothers seem clearest when talking about their mother.

They say they only realized the extent of her depression upon discovering letters she had written--it was not said to whom--stashed in her dresser. She was despondent because Jose Menendez had long been unfaithful, carrying on one affair with a woman in New York, for eight years.

But the final straw, Lyle Menendez says on the tape, was Jose Menendez’s plan to go into politics. That would have left their mother even more lonely, he said.

“He needed passion in his life,” Lyle Menendez says of his father. “Very passionate man. But not with her.”

For “one moment before I went back to school,” Lyle Menendez says, referring to his scheduled return to Princeton for the 1989 fall term, “I had a chance, even though my life was going really well . . . to show some courage, I felt. And, ah, help Erik and I.”

In court, the brothers testified that they feared for their lives after they threatened on Aug. 17, 1989, to expose how Jose Menendez forced incest on his sons. They testified that they were sure they were in danger three nights later when their parents went into the TV room and closed the door behind them--so they immediately got shotguns, burst inside, and killed their parents first.

On the tape, the brothers presented the killings as far from a spur-of-the-moment act of self-defense. Lyle Menendez told Oziel: “There was no way I was gonna make a decision to kill my mother without Erik’s consent. I was going, I didn’t even wanna influence him in that issue. I just let him sleep on it for a couple days.”

He added: “It had to be (Erik’s) own personal issue. If he felt the same way I did about killing Mom.”

Repeatedly, Lyle Menendez explained that they were merely carrying out their mother’s wishes: “Erik and I realized that any point, sort of subconsciously, the go-ahead was given ‘to kill us, to kill me, before you leave.’ And basically, ‘Leave our lives, and go your separate ways.’ ”

Defense attorneys contend that Oziel orchestrated the counseling session, turning it into a touchy-feely encounter having little to do with the truth. The defense says the brothers did not trust the psychologist enough to confide in him that they were molested.

At the Dec. 11 session, Oziel seems insistent on convincing the brothers that, even though their parents are dead, they can still have a sense of family--with each other. He asks Erik Menendez to tell his older brother that he loves him.

Lyle Menendez finally says to the therapist: “We hate that hugging s--- by the way. We f------ hate that.”

Defense attorneys assert that Oziel was leading the brothers through his own conclusions about the slayings, not theirs, drawing responses that hint at, but hide, what really happened.

“Did you ever try to tell your mom, or talk with your mom about what your dad was doing?” Oziel asked.

“No way, I couldn’t face that. . . . I left that up to my brother,” Erik Menendez said. “I couldn’t even face that.”

Although the defense may argue that the younger Menendez brother was making a veiled reference to sexual abuse, prosecutors can cite a following sentence to argue that he was speaking, in fact, of his mother’s suicidal tendencies: “I didn’t want to realize it, but I knew that if my mom had died, I would have to leave,” he said.

Moments later, Erik Menendez added that their mother “had to be killed. And, ah, it was the only way out.”

All four defense attorneys declined comment after the tape was played in court.

The lead prosecutor, Deputy Dist. Atty. Pamela Bozanich, said merely, “I think it speaks for itself.”

After Conte was done testifying, the defense late Friday returned to one of its main strategies, trying to discredit Oziel. Called to the witness stand was his former girlfriend, Judalon Smyth, the woman who eventually alerted police that the brothers had privately confessed to him--the tip that led to their arrests.

Smyth, who has filed two lawsuits against Oziel since their relationship soured, testified that he seemed less interested in the Menendez brothers’ mental health than in the $14 million he believed they were inheriting. She said Oziel told her the brothers would “need his guidance and assistance to invest the money properly.”

Although defense attorneys had suggested that introduction of the tape might force them to bring a series of witnesses back to the stand--including the brothers--they appeared to have decided on a different strategy: simply having one expert witness explain the tape before each of the two juries in the trial.

A defense expert who examined Erik Menendez is expected to testify about the recording early next week, when it is played to Erik’s jury.

Menendez Therapy Session

Excerpts from the Dec. 11, 1989, therapy session between psychologist L. Jerome Oziel and brothers Lyle and Erik Menendez:

Oziel: Where did you find (Kitty Menendez’s suicide note)?

Erik: . . . in her drawer. I don’t remember what I was looking for.

Lyle: Under a book. . . . What it said is ah, um, “I, I, I’m sorry I had to do this. I love you both, Lyle and Erik. I love your father. I just can’t seem to deal with my own problems. . . . I have to do this.” And blah, blah, blah, blah, blah. And at first (Erik) thought it was just that my mother was leaving my father. And it was not until I told him that, you know, “Don’t get excited, but there’s a strong possibility that what she’s talking about is she’s going to kill herself.”

Erik: . . . She couldn’t kill herself. I mean . . . to pull the trigger, it takes an amazing amount of energy, and she was so drained from learning about (Jose Menendez’s) affair. . . . I would have to listen to my mother crying . . . and I would be just watching TV downstairs, and I would just hear the sobbing (upstairs), and I couldn’t go up and see what was wrong. . . .

Oziel: Why, why couldn’t you?

Erik: Because I didn’t have that kind of relationship . . .

Oziel: No closeness.

Erik: . . . I look back on it now, and I wish I had that kind of relationship . . .

Lyle: . . . She just decided, “Boom. No way, ah, did he (Jose) ever love me.” . . . And, ah, at this point, I had stopped trying to help her divorce . . . I was, you know, gradually being separated from her. . . . Anything I talked to her about, “Talk to your father.”

Lyle: . . . A lot of my relatives’ conclusions is that my mother could possibly have staged the whole thing, and killed both of them herself, because she was unable to kill herself. And, ah, so she had someone, she just said, “OK. Kill us at some point.” . . . I could see how they would believe that. Reading those letters.

Oziel: Uh-huh.

Lyle: Ah, you know. I kept thinking it over. Almost as if it was true. Almost as if I was like an instrument of hers in killing herself. That’s where we sort of feel like, you mentioned before, that we were doing her and us a favor. In putting her out of her misery really. . . .

Oziel: How much did you feel that you were killing your dad because of what he was doing to you each and how much . . . because of what he did to your mom? . . .

Lyle: It was not because of what he was doing to me, because I . . . had pretty much splintered off from my family, ah, and tried many a time . . . Erik and I, we’d get together and we would share what was happening in the family. And, ah, ah, it was obvious my mother was deteriorating. We didn’t want to get to a point where my mother would kill herself. And . . . we were left to deal with my father.

Oziel: Uh-huh . . .

Lyle: And, ah, so, ah, for my, for my mother’s sake, I, I thought that, ah, we did it . . . we had to make a decision. It was one of the harder ones. . . . My father should be killed. There’s no question. What he’s doing is, he’s impossible to live with for myself . . . based on what he’s doing to my mother.

Oziel: . . . It’s obvious to me that he was doing all kinds of stuff. From totally controlling everybody in the family. Being completely cold-blooded about, about his decisions . . . including talking about disinheriting, ah, ah, you . . .

Lyle: That didn’t enter into it too much, ‘cause I, I felt like Erik and I could handle it. . . . And, ah, so it came down to that decision, and we decided that, ah, my mother could notlive without my father. . . .

Oziel: Why did your dad have to die? I mean, I know for your mom, why she . . . hadto die. How about for the two of you? What, what, what, it’s clear to me how much he totally controlled the two of you, and . . . treating you as if you were disappointments . . .

Lyle: But I still don’t think it had anything to do with, killing him had nothing to do with us. It had to do with me realizing a number of things that all culminated. . . . And it was just a question of Erik and I getting together, and somebody bringing it up, and us realizing the value in it. Ah, which was, my father had a dream of now going into politics . . . and that my mother would not be able to handle that. She had expressed over and over again how that would be the worst thing in the world for their relationship. He would, what she wanted was for him to get away from this business, and . . . dictatorship life . . . and just sort of retire with her . . . and get to know her. . . . If he went into politics, she would again be that shell of a showcase for him, and he would be boom-boom-boom, be very busy. . . . That would be his new love. Politics, instead of business. Instead of her.

Oziel: Instead of an affair.

Lyle: . . . Like he had given up women, and taken up politics. It was his new affair. . . . He needed passion in his life. Very passionate man. But not with her.

Erik: He was somebody that I loved and almost had no choice to do what I did, and I hate myself for doing it. And, ah, and I understand why it was done, but I somehow in my mind I can’t rationalize it, because, (crying) because the love that I had for him and my mother . . . It’s more difficult because of my mother, because I realize what an amazing tragedy her life was, compared to what it could have been. Because of my father. And I hate him for that. And I love him. And, ah, and it’s something that, ah, way beyond control. And . . .

Oziel: What was beyond control? That you had to kill him?

Erik: Eventually it had to happen. It was basically ruining my life, and I guess Lyle’s. And, and, and he was putting my mother through torture . . .

Oziel: . . . Why don’t you, Erik? Can you turn toward Lyle and tell him what you feel? You can do it.

Erik: There’s no reason to.

Oziel: Yeah, there’s a lot of reasons. Come on. . . . What this is all about is you not having done this in vain but for, for you really to get to the place where you can deal with your feelings and, and not be a prisoner of whatever happened and so, yeah, there’s a reason to it. Do you love Lyle?

Erik: Yeah. . . .

Oziel: . . . Turn your chair and face him. . . .

Erik: I’d rather, I feel uncomfortable. I’d rather not.

Oziel: Erik. Wait a minute. Wait. OK. What am I here for? . . .

Erik: . . . It seems like I can say it to almost anyone else except for my family . . .

Lyle: I think . . . the reluctance . . . stems from a pride issue. . . .

Oziel: Do you love him?

Lyle: . . . Yeah. I love Erik very much.

Oziel: OK. Can you turn a little more towards him? . . . (laughing) Oh, God. Come on. You can do this . . .

Lyle: We hate that hugging s---, by the way. We f------ hate that.

Oziel: You know what? I don’t care. . . . What we’re really doing is trying to, to help you, help you undo what happened, and help you create what never got created so that, you know, what happened happened for a reason, and that you now can create something between the two of you that, that is supposed to be there to begin with. ‘Cause you’re what we have left, ah, you’re your family now.

Lyle: . . . I still think Mom’s was a suicide. Because I, you know, I feel that in her letters to, to Erik and I, she gave me the permission . . . to, to, to please carry out her suicide, and that it was obvious that she had decided in her own mind, she wants to die. . . . What Erik and I did took courage beyond belief. Beyond, beyond strength. There was no way I was gonna make a decision to kill my mother without Erik’s consent. . . . I just let him sleep on it for a couple days. . . . It had to be his own personal issue. If he felt the same way I did about killing Mom. . . . I did what I thought my mother would want me to do. Which is, ‘Please kill me, and I can’t’ . . . in a way I’m happy that people say afterwards, ‘You know, there’s no way that your mom could have lived without your dad. I’m glad . . . ‘

Lyle: . . . Even the planning out of this, the reason it took such a short period of time to figure it out was one, because it could have happened at any moment.

Oziel: Uh-huh.

Lyle: All the thinking . . .

Oziel: Uh-huh.

Lyle: . . . beforehand was done.

Oziel: Yeah. You already know what you felt.

Lyle: . . . Ah, honestly I never thought it would happen. Even though I had thought about it. Ah, but it was ah, it was done so quickly, and so, sort of callously almost, because one, we, if you thought about it too much, the feelings of not having your parents around, and so on, would get in the way of what was more important. Which was helping your mother, really. . . . And it was just a meeting of the minds. The time is now . . .

Oziel: Uh-huh.

Lyle: . . . I mean, I remember when we had to go down wherever to take care of an important issue concerning ah, ah, (Erik) said, ‘I can’t do it. I’ve gotta, I’ve gotta practice, because I have a (tennis) tournament coming up.’ And he was, he was completely blocking out. . . . I couldn’t even tell him, but I was feeling he doesn’t realize the impact of what he’s doing. He wants to take care of this problem and wish his life was the same. And he still had normal parents. But he could never have. He doesn’t realize that what he’s doing, there will be no more tournaments like that. There’s gonna be no more. All the, all the little good things that are in our relationship, and I think one of the big, biggest pains he has is that you miss just having these people around. I miss not having my dog around. If I can make such a gross analogy.

Oziel: Uh-huh.

Lyle: That, you know, whether I hated the thing when it was around, and I’ve given it away, now that it’s gone, I miss all the things that we, you know, we had a boating trip right before the incident, and it had nothing to do with the main problem, which, which required a lot of courage. But ah, we, I miss not having my father and I, it’s almost worse after I find out more and more about how he was such a genius. And all of the things he was able to do, and, and more and more about the agony of my mother, that I, instead of her being a shell, I realize she was really feeling a lot of emotion, that I wish I could’ve now confronted her, and discussed things with her that I, I can’t . . .