what about all the times that you hit us or called us worthless in front of other people yeah what about it the Menendez brothers murder case is now taken center stage and has got everybody talking from the very popular but controversial new Netflix show to perhaps the LA district attorney moving to help get the Brothers released from prison we want to talk to somebody who knows about high-profile cases the lawyer who famously represented Johnny Depp what's his take on the latest and whether a defamation lawsuit could could possibly be on the horizon because of this
TV series welcome to sidebar presented by law on crime I'm Jesse Weber there is a lot of talk going on right now surrounding Eric and Lyle Menendez and whether they are going to be released from prison 35 years after shooting to death their parents Jose and kitty Menendez back in 1989 in their Los Angeles home and this renewed attention this push for their freedom seems to be due in large part to the release of the series Monsters the Lyall and Eric Menendez Story on Netflix it was the number one most watch show on Netflix at
one point the second season of Ryan Murphy and Ian Brennan's Anthology series it depicts the story of the brothers who went to trial two times for their parents' murder first trial you had two separate juries both hung as to whether this was murder or manslaughter the brothers they were able to argue imperfect self-defense under California law which means you would have a genuine but unreasonable belief that your life was in danger and you needed to use lethal Force you see the brothers argued that they were abused by their parents and more specifically that Jose had
molested them that kitty acessed or participated in a way and they introduced evidence not only of the abuse but that their parents would kill them if they expose this abuse so the juries were hung on that first trial whether this was murder whether this was manslaughter so the brothers were then tried a second time but there was a difference at this trial there was one jury and prosecutors were successful in convincing the court and arguing that the abuse evidence should be limited and that the brothers should not be permitted to argue imperfect self-defense in other
words at this second trial manslaughter wasn't an option and in the end the jury convicted both Eric and Lyall of murder and in 1996 they were sentenced to life in prison without the Poss possibility of parole now at the same time as the public is once again watching this show and they're being reintroduced to the Menendez Story the Los Angeles District Attorney's office has indicated that they are looking into new evidence presented by the brothers attorneys that may in fact result in their release from prison we have not decided on the outcome we are reviewing
the information but I think it's also important that we recognize that both men and women can be the victims of sexual assault we have a moral and an ethical obligation to review what is being presented to us and make a determination based on the resentencing side whether they deserve to be resentenced even though they were clearly the murderers because they have been in prison for 35 years and they have paid back their dues to society or whether a haviors is appropriate if there was evidence that was not presented to the court at that time and
had that evidence been presented perhaps a jury would have come to a different conclusion that was district attorney George gascan and this new evidence that the brothers say they have is a letter that Eric allegedly wrote to his cousin almost a year before the murders explaining that Jose was abusing him and the second piece of evidence is apparently a signed declaration from Roy Rell a member of the boy band menudo who claims that Jose raped him when he was a teenager Jose was a music executive signed multiple musical talents including menudo and as the da
reviews this evidence and whether they will sign on to the defense's habius petition and a habius petition by the way is basically saying it's unlawful to keep someone in prison and here they're saying that this new evidence could have changed the outcome of the trial as we see what the da does there and one other thing that can happen is that under California law a district attorney can also petition for a sentence to be recalled and for there to be a resentencing especially if there's significant Rehabilitation which is alleged here so in other words the
murder sentence could be recalled they could be sentenced to manslaughter time served released from prison and I know I said this a lot but look it is our privilege to be able to bring you these kinds of stories and I want to thank one of our great Partners who helps make episodes like this possible upside and upside is actually the sponsor of today's lawn crime YouTube takeover now upside is awesome it is a free app that helps you get cash back on gas groceries food real cashback money that appears in your upside app that you
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cents back on every gallon on your first tank of gas hope you can check it out as we're wondering could the brothers get a new trial could they be resentenced and released we have also asked how accurate is this show we did a sidebar on what is real what is not and Eric Menendez is not happy with the portrayal could he take legal action I mean a lot of this sentiment right now is based on the character ations put forward in this show so as we sort through the legal and high-profile nature of this case
I want to bring in somebody who knows a thing or two about fighting a case for the world to see Ben Chu who famously represented Johnny Depp in his very high-profile trial against Amber herd Ben so good to see you thanks for coming back here on sidebar you're most welcome Jesse great to see you so one of the things that I wanted to ask you is that this show has been accused of being exploitative of what were're very very very serious tragic events and you know people said that and I saw this firsthand there was
a difference between covering the Johnny Depp trial versus people took Clips they put music behind it they made it into a spectacle when you were really dealing with very serious subject matter between him and Amber herd um and I think the the argument that's come forward with this show and I was just curious your opinion do you think shows like this are harmful that we talked about it with Menendez this show but there was also the show this first season was about Jeffrey dmer people looking at these they're murderers right and and glamorizing it and
making it as a pop culture reference do you see it as harmful in any way yeah I I think it definitely has the potential to be harmful especially whereas here you have the possibility of a future trial I mean I think there's a distinction between a documentary or a fictionalization of a trial that is over and done with as opposed to something which uh may be transpiring now that is the Menendez brothers may be resentenced and and may be released as you said or they might be retried and there's a real danger to the extent
that there's a retrial that a potential juror or jurors will have seen this or will have the idea that everything set forth in Monsters the Lyall and Eric Menendez story is true as opposed to a a semif fictional uh account so well said Ben so well said and look I did a sidebar on this and and I'm going to go into one point about it but a lot of the main events are true a lot of even some of the small smaller details are pretty accurate but Eric Menendez is not happy and I wanted your
take on this and we're going to give you an idea of this because Eric Menendez released on social media through his wife a statement and it reads in part I believed we had moved beyond the lies and ruinous character portrayals of Lyall creating a caricature of ly rooted in horrible and blatant lies rampant in the show it is with a heavy heart that I say I believe Ryan Murphy cannot be this naive and inaccurate about the facts of our lives so as to do this without bad intent the statement goes on to say that it
is sad for me to know that Netflix's dishonest portrayal of the tragedy surrounding our crime have taken the painful truth truths several steps backwards back through time to an Era when the prosecution built a narrative on a belief system that males were not sexually abused and that males experienced rap trauma differently than women is the truth not enough let the truth stand as the truth how demoralizing is it to know that one man with power can undermine Decades of progress in shedding light on childhood trauma now Ryan Murphy responded to this in a statement to
Entertainment Tonight where he said the thing that I find interesting that Eric doesn't mention in his quote is if you watch the show I would say 60 to 65% of our show in the scripts and in the film form center around the abuse and what they claim happened to them and we do it very carefully and we do give them their day in court and they talk openly about it now Ben you were famously represented Johnny Depp in a defamation case when you hear statements like this from Eric Mendez could he file a suit for
defamation yeah I mean I think he'll have he would have certain obstacles facing him but yeah I think he can make a prma fascia case for for defamation now there they are Myriad defenses um the defendant would argue of course that that this is going to call for an actual malice a standard which is an extremely high standard where which it's effectively knowledge of falsity which is very high hurdle to me and would be in this case um but the argument would be on the defendant side that this is a matter of of public controversy
we're dealing with public figures so actual malice must be shown and that is very very high standard oh yeah oh yeah uh especially when you're dealing with high-profile individuals right so one of the things that has been the most controversial point of this show is that the show implies that there might have been an incestuous relationship between the brothers Lyall and Eric they kiss in one scene they shower together in another scene although that might have been kind of like an imagination sequence and a well-known expert on this case Robert Rand he wrote the book
the Menendez murders the shocking old untold story of the Menendez family and the killings that stunned the nation he's come out said this is totally untrue although there was some sort of minor suggestion of maybe when the boys were younger there was a toothbrush incident this happened during their criminal trial and in fact Rand told The Hollywood Reporter I believe the only physical contact they might have had is what Lyall testified that when Lyall was 8 years old he took Eric out in the woods and played with him with a toothbrush which is what Jose
had done with him and so I certainly wouldn't call that a sexual relationship of any sort it's a response to trauma Ryan Murphy said there are people who say that never happened there were people who said it did happen if you watch the show what the show is doing is presenting the points of view and theories from uh so many people who were involved in the case now uh what do you make of that Ben that specific point point is that problematic for Ryan Murphy and Netflix um it it could be but again uh to
the extent that they are setting forth other Alternatives and other points of view that's another going to be a fair reporting kind of Defense to say we weren't making the allegation that the brothers in fact had a sexual relationship we were exploring different different sides of that so again that becomes very murky for uh the plaintiffs in this case and and you have another threshold issue with with both Mena's Brothers as potential PLS is you have to argue that there were actually damages to your reputation and if you are convicted murderers or if it's bumped
down to something less can your can your reputation really be damaged and the counterargument would be they're actually their reputation was enhanced because if people are looking at the show and saying they're innocent they're they're not the monsters of the show the parents are uh you could say the show actually is not hurting them but helping them exactly right and if this if this complaint were filed and it somehow survived what would be Myriad motions to dismiss on various legal grounds to the extent you got to the Discovery phase you would see the defendants make
that argument and and probably even have some expert testimony on that you could do surveys of people who have a higher reputation of the plaintiffs than they did prior to prior to the show coming out where they were just seen by many as as murderers so it's a great Point Jesse there may not be any damages at all here yeah and there hasn't been any announcement of a lawsuit but when you hear these statements it's something that I thought about now I want to get into the idea of what will happen to these brothers could
they released from prison let me first ask your opinion on this I've been asking everybody's opinion on this do you think the da George gascan responding to this habus motion a year after it was filed when this show is coming out he's up for reelection in California do you think that this is all motivated more by politics or do you think this is all motivated by the law and by the way not only is a lot of people talk about it Kim Kardashian has visited the brothers in prison has advocated for their lease but do
you think this decision by the DA's office to look at this evidence now and maybe consider signing on to the habus motion or trying to recall the sentence what do you think motive politics or law well I don't want to be cynical and certainly I don't want to speculate too much but the timing you mentioned that he's signing on so much after the original filing does suggest that other other factors including perhaps the publicity you know could be at play and this is an elective office so it wouldn't be beyond the beyond the Poss the
pale of possibility can I give you my take and I'm curious your thought my my take is the law hasn't changed what do I mean by that the brothers have been fighting this for years they have filed a number of appeals habus motions all been denied and it was held by other courts that it wasn't a mistake to not include every piece of sexual abuse evidence in the second trial that it was actually cumulative that it wasn't a mistake to not struck the jury on imperfect self-defense in the second trial because even if you assume
the brothers were abused and they were in fear for their life that fear wasn't of imminent harm it was a general fear fear that they would be killed in the future they planned the killings they bought the gun they bought the ammunition they shot their parents while watching television so even if we assume that this new evidence the letter the Declaration is real in my opinion from a legal point of view this seems like murder not manslaughter but I don't know maybe I'm wrong maybe there should be a new trial maybe a a jury should
hear this um you tell me I mean there's a difference between um there's a difference between I guess the jur the jury should hear this first they shouldn't hear this because multiple courts have said it wasn't a mistake what happened in the second trial what do you think yeah I mean I I I think I think you make an excellent point I mean this this certainly seems quite premeditated irrespective of what Jose may or may not have done and and the timing is somewhat suspect but um it it will be quite interesting to see how
far the Da goes and whether he will bump it down to manslaughter and let them go or whether or whether there will be another trial here's the thing if they have a new trial and they present this evidence and they're allowed to present this evidence there's a very very strong likelihood these brothers could be convicted of manslaughter and not murder and time served okay but my opinion is the courts have said it shouldn't be introduced and they're not entitled to self-defense prosecution didn't argue that properly in the first trial they did in the second so
if I'm just basing it off of the courts that's my opinion now the idea of a new trial though do you think that's likely I mean it's so old the W the witnesses I don't even know if they're available it seems that it might be a case of we're going to move now uh to try to just throw this conviction out not even have a new trial maybe move to recall the sentence do you think that's more likely I do I I think that is more likely because I think the new trial would be a
circus as you said it's it's so far it's so stale the evidence is stale that um a wiser move to the extent that the da is determined to do this would be a recall of the sentence and and basically calling it a day uh with time served now whether that's a just result I don't know but um but that I think is more likely you think a court would sign off on that so even if the da were to say we're going to push for this sentence to be recalled and resentence the manslaughter times serve
released you think a court would agree to that I think it depends on the judge I mean I think it really it really could come down I mean as you said a judge could easily take your view that this was a a brutal premeditated murder um especially with respect to the mother I mean if if you honestly believe that the father committed the sexual abuse you might be more inclined as a judge to um to bump into manslaughter but it it's harder to to justify at least to me it seems harder to justify killing of
the mother even if the mother were aware of it I think there's a a moral difference between um actually abusing someone um and knowing about it not exonerating the person who merely knows but I I I don't see how you you get around even an imperfect self-defense the the murder of the mother well look it reminds me of the Gypsy Rose Blanchard case very high-profile um and in that situation self-defense wasn't on the table what it was was and she was clearly abused clearly clearly abused if she didn't kill her mother her mother would have
been arrested but she uh she she killed her mother pled guilty to second degree murder her boyfriend was found guilty of murder that was a crime and and that was a situation where even though there was tremendous horrific abuse doesn't entitle you to murder someone unless your life is in danger uh at that moment now I'm sure there's people who are going to disagree with me but I'm also just basing it on what the courts have found uh in the years since they've been convicted in sentence now if they did have a new trial do
you think cameras should be in that courtroom the first trial had court cameras the second one didn't this as you mentioned would be a circus be a high-profile case um you were in one of the most high profile file trials in the last 30 years what do you think do you think there should be cameras in the Menendez brothers trial if it if they do get a new trial I actually do I I think it's good for the public to to see the judicial system at work and I know there was some criticism of the
deth trial but I think on balance it's good to see we had a wonderful judge in that case chief judge H escarate and and I think the people were able to see how fair she was how judicious was and and how how well she controlled that courtroom and how fair and even handed she was to both sides sometimes ruling for us sometimes ruling for them I I think it's good to have it I mean if we can see these kind of fictionalized accounts like the the Netflix program why shouldn't we see what actually happens because
I think sunlight as they say is a good disinfectant I think it enhances the reputation of of the Jud digal system and um that that's just my view I know it's controversial I I couldn't agree with you more and I'm not agreeing with you just because I like you so much ben I think that that is 100% true transparency is key allow people to see the arguments from both sides not everybody's going to read a transcript not everybody's going to read an article but to see it with their own eyes so important how often do
we talk about it's important for the jury to see the the Witnesses on the stand as opposed to a you know a taped interview that comes out later on I agree with you I think it's so important now let me ask you this if the brothers are released from prison how would you advise them to rebuild their image in their lives Eric is 53 Lyle's 56 I thought that this was an interesting question to ask you because um one of the motivations when it came to the Johnny Depp trial was to reverse the narrative that
had been put on him for so long and that trial clearly helped him and rebuild His Image so if these brothers are released how would you advise them to do I would advise them to move on and and get on with their lives so much of their lives have now been spent in prison I don't think they want to be reliving this and giving endless interviews you know till the end of their days I think they should find if there's some passion they have um they should pursue that and and maybe leave the public sphere
entirely uh for Mr Depp he was able to go back back to directing and acting and playing music and you know he really doesn't talk about it he just let let the jury verdict speak for itself and in this case there wouldn't be that kind of exoneration and Vindication but at least it would be the closing of a door I don't see how revisiting this or retiga literally or figuratively the depiction of them in the Netflix I just think it's a waste of their time they they should if they want to have something left of
their lives they should do something more meaningful for them and very well said I agree with you again so good seeing you thank you for taking the time really appreciate it Ben Cheo everybody thank you thank you thanks Jesse all right everybody that's all we have for you right now here on sidebar thank you so much for joining us and as always please subscribe on Apple podcast Spotify YouTube wherever you get your podcast I'm Jesse Weber speak to you next time [Music]
